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“MUSICAL APPROPRIATION, MUSICAL MEANING, AND THE LAW” Joanna Demers Project Description The following is an excerpt from a book I am currently writing entitled “Musical Appropriation, Musical Meaning, and the Law.” This monograph explores two fundamental questions from the point of view of a musicologist: How has intellectual property (IP) law impacted musical creativity within the past fifty years? How have restrictions on appropriation changed the way music communicates? Important authors in the field of cultural studies have claimed that IP has exerted a categorically negative effect on musical creativity. My book challenges this conventional wisdom by arguing that copyright law has led to a cultivation of techniques that refine, rather than stunt, music’s capacity to communicate. This project provides a nuanced analysis of the effects of IP law on musical meaning, and will be an important contribution to the fields of musicology, cultural studies, and the law. INTRODUCTION The voice of Elvis Presley is perhaps the most contested acoustical phenomenon in modern culture. Despite abundant proof that Elvis happened onto rock ‘n’ roll well after its inception, popular histories still credit his vocal chords with single-handedly inventing rock ‘n’ roll and ushering it into white environments that may never have had contact with black music. For his legions of fans, Elvis’ voice brought about a cultural and musical revolution, breaking down racial and sexual barriers and teaching adolescents to rebel against their elders. Yet to Elvis’ detractors, his voice was an instrument of artistic theft, passing off black musical forms as his own original creations. If we believe Gil Scott-Heron’s bitter lyrics, Elvis was “no new thing” because he fit into a long tradition of white cooptation of black forms of expression. The King is dead, but his corpse (and voice) are still the sites of controversy. Elvis Presley Enterprises, Inc. (EPE) is the legal guardian of all uses of his image, and in recent years 1 has succeeded in outlawing the production of kitschy “Elvis on black velvet” paintings. EPE polices televisions shows and films to make sure that all invocations of Elvis are “pre-cleared,” meaning that appropriators must apply for permission, and pay for the right, to use of Elvis’ image.1 Elvis Presley impersonators in Las Vegas are as common as dirt, but the more successful ones have been required to license their acts with EPE. 2 The control over Elvis Presley’s personality extends not only over his physical appearance and personality but over the very quality of his voice. Entertainers who want to telegraph their musical resemblance to Elvis can legally do so only through paying EPE. Elvis Presley’s voice stands at the center of numerous legal and ethical debates concerning musical appropriation. Content providers such as Time/Warner, Disney, and EPE are anxious to control all aspects of celebrity identity, even acoustic traits. In essence, these efforts are intended to reclassify things such as voice and performance style, once unprotected under most federal and state laws, as intellectual properties. Copyright protection for music is more porous than protections afforded to other creative works, and until a few decades ago allowed for relatively unencumbered acoustical imitations and impersonations. The melody and lyrics of a copyrighted composition enjoy unambiguous protection, but in general that coverage does not also include stylistic elements such as form or instrumentation. Yet such idiosyncrasies distinguish one musical work from another, in the same way that two novelists can be leagues apart in terms of voice even if they write on the same subject. Framers of the United States copyright regime determined that nuances and particularities in various media deserved protection. For instance, the copyright for a literary work protects not only the text itself, but also fictional characters, organization and structure. Even an abridgement or paraphrase of a literary work is not allowed without permission.3 In 1989 the copyright for architectural works was expanded to include not only blueprints and printed designs but the actual structures themselves, barring others from copying the style of a preexistent building. 4 Dramatic works and choreographies are protectable so long as the original work’s directions have been indicated on some tangible medium such as ink and paper.5 What the copyright protections for these various 2 media share is a safeguard against not only literal copying, but also against appropriation of their expressive elements in whatever forms they may take. Expression is indeed at the heart of this discussion. American copyright purports to protect expressions of ideas, but not the ideas themselves. 6 With novels and buildings, it is relatively easy to point to a definitive expression or product resulting from an initial idea. Yet music resists classification as an idea or expression because there is so little agreement as to the precise nature of music (a term referred to in metaphysics as its ontology.) When does music cease to be an idea and start to become an expression? When it is actually performed? If so, there would be no copyrights for sheet music, only for performances and recordings. And how exactly do we define music in the first place? Is it comprised only of the features considered important in Western concert halls, i.e. melody, harmony, and structure? Or is it also style, stage presence, and the timbre of a particular instrument? The answers to these questions have changed abruptly in the past two decades, and are challenging the core values of the international music industry. The fly in the ointment is that music is not a widely “read” or “understood” language the way that printed or spoken languages are. Whereas the origin of phrases can be relatively unambiguous (e.g. when I write “It was the best of times, it was the worst of times,” it is easy to prove that I am quoting Charles Dickens), the origins of a musical idea are open to broader interpretation. The beginning of Cream’s “White Room” (1968) contains chords that bear more than a passing resemblance to the opening of the famous aria, “Visi d’Arte,” from Giocomo Puccini’s Tosca (1900). But it is unclear whether the members of Cream were even aware of the connection to Puccini. To distort Freud, sometimes a musical coincidence is just a musical coincidence. Without recourse to interviews, we would never know for sure if the passage was an ironic reference, plagiarism, or innocent serendipity. WHAT IS MUSIC, ANYWAY? The confusion over music’s ontology is traceable to shifts within the past two hundred years in the status of printed notation. Before the Romantic era, scores, printed music, and manuscripts were 3 performance aids but were rarely viewed as definitive sources of music in and of themselves. 7 But by the beginning of the 19th century, sheet music had evolved from being a mere guideline to the authoritative version of a piece. Ludwig van Beethoven, Richard Wagner, and Johannes Brahms, the emblems of German Romantic composition, wrote pieces whose fundamental incarnations were the scores themselves.8 Performances were merely imperfect manifestations of the idea encoded in notation. The private correspondences of these composers mention mutinous prima donnas and inept instrumentalists who marred pieces beyond recognition. The resulting frustration of these composers points to the fact that they considered sheet music the primary source of musical content. Recordings, of course, did not exist at this time, and live performances were too ephemeral to have any long-term significance. Virtuosi like Franz Liszt or Niccolò Paganini admittedly captured the imaginations of audiences, but their notoriety ultimately succeeded in generating sheet music sales. Vaudeville and Tin Pan Alley music publishers at the turn of the 20th century were in many cases themselves European musicians whose business models depended on healthy sheet music sales.9 But these publishers also relied on live performances and early recording technologies such as piano rolls, both as separate sources of income and as means of increasing the demand for printed music. Copyright law changed to accommodate this shifting terrain. The Dramatic Compositions Copyright Act of 1856 and the Copyright Amendment Act of 1897 were the first laws to protect performances of copyrighted compositions, yet these laws still prioritized written forms. A copyright holder had to prove ownership of a written work, and only then could he license the right to perform it publicly to others. The 1909 Copyright Act instituted compulsory licensing for mechanical reproductions, meaning that publishers were guaranteed royalties when their works were recorded. Sound recordings themselves were not included under statutory copyright protection until 1971 with the passing of the Sound Recording Act, which instituted a separate copyright for sound recordings independent of the copyright for the underlying composition. Well before the 1971 Act, however, recordings began to eclipse both sheet music and live performances to become the definitive source of musical distribution. This trend became evident during the 1940s and 1950s, when musicians’ unions in the United States and the United 4 Kingdom fought a losing battle to block the use of recorded music for parties and social events. 10 The increase of popular music’s (and particularly rock ‘n’ roll’s) market share meant that listeners consumed music more often through home listening rather than concert attendance or home performance.11 In other words, music consumption has metamorphosed in the past century from an active occupation where listeners buy printed pieces in order to make their own music, to a passive occupation where listeners absorb sounds through listening. Today’s musical palette is vastly different from that of one hundred years ago due to the proliferation of consumer recordings and radio, television, and internet broadcasting. Recordings are so much a fixture of the popular music experience that Theodore Gracyk has proposed a rock aesthetic centering on the recording rather than live performance or sheet music.12 This recording-based perspective challenges the foundations of Romantic composition, because for one particular “piece,” there can exist many different versions, covers, arrangements, or remixes, each of them protectable and none more primary or significant than the next. If by the beginning of the 21 st century the recording is the primary source of content, what does this suggest about music today? Does a musical composition really exist if it exists only in printed form? As an arrangement? As a recording? To answer these questions, let’s consider when copyright goes into effect for a musical work. The 1976 Copyright Act stipulates that protection for a new work begins the moment it is fixed onto any tangible medium. This differs from the previous 1909 Copyright Act which required that a composition be fixed onto paper and distributed publicly before expressions such as recordings and performances could be protected. With the 1976 Act, fixation can be simultaneous with transmission, but excludes “purely evanescent or transient reproductions such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the ‘memory’ of a computer.”13 The 1976 Act undermines the authority of the “ink-and-paper” composition by protecting musical works from the moment they are fixed to any medium, including magnetic tape, vinyl, and compact disc. So under current legislation, sheet music is really nothing more than an aid to performance, a set of suggestions on how to perform or record a piece. The implications of the 1976 Act are far-reaching, because this 5 law produces the unintended result that the ink-and-paper composition is viewed less as an expression and more as an idea today. Why? Even if I publish a sheet music version of a song, I can prevent others only from imitating its melody and lyrics. Every other musical aspect that I specify in the piece can be copied by someone else, meaning that things like dynamics, timbre, articulation, and rhythm enjoy the legal status of ideas rather than expressions. I can, however, exert more comprehensive control over the actual dissemination of my work. For instance, unauthorized xeroxes of the sheet music for my piece would be illegal, as would unlicensed copies of recordings of the piece. Unlike ink-and-paper compositions, sound recordings are treated as expressions or manifestations of a compositional idea, and thus every sound that appears on a recording is protected; this includes not only melody and lyrics, but harmonies, rhythms, and any other sounds that are identifiably drawn from a preexistent recording. This distinction between sheet music as idea and performance as expression is most relevant in today’s environment where jazz and popular music showcase improvisation and live collaborative composition. In such a milieu, the “composition” is protean, shifting from paper to tape to extemporization, and the premise that a piece can be captured with ink and paper is an anachronism.14 COVER SONGS AND MUSICAL ILLUSION “Covers” are recordings of songs made by musicians other than those responsible for the original recording. Rock ‘n’ roll-era covers often engaged in the process known as “crossing over,” where a song initially produced in the context of one particular race or ethnicity becomes popular with members of another race or ethnicity. Crossover covers were popular throughout the 1950s, and existed in various permutations: a “white” song crossing over to the “black” market and vice versa. Rock ‘n’ roll covers have been an easy target for moral outrage because of the financial success so many white performers received through the replay of songs originally written and/or performed by black musicians. Pat Boone’s stiff send-up of Little Richard’s “Tutti Frutti,” or Elvis Presley’s cleaned up version of Big Mama Thornton’s “Hound Dog” have led critics to complain that white singers replaced the spontaneity of black performances with a commercialized, 6 saccharin style. White covers may have made copyright holders good sums of royalties, but their original performers seldom profited. In addition, black songwriters were sometimes forced to share writing credits with white artists in order to have their songs performed, and were frequently paid below the mechanical statutory rate for recordings of their songs. 15 Apologists of covers note that the practice opened up black R&B to much larger audiences, meaning that many black musicians were ultimately able to enjoy previously unheard-of recognition and financial gain. Black R&B musicians were just as likely to cover white songs during the crossover atmosphere of the mid-1950s; this fermentation actually strengthened the situation of black songwriters as BMI and independent publishing companies aggressively pursued royalties for the artists they represented.16 The rock ‘n’ roll cover debate revolves primarily around ethics rather than the law. In most instances, white artists who covered black songs adhered to copyright law by reporting authorship and paying royalties to the publisher. Objections to white “raping” of black culture ultimately hinge on the right to appropriate performance style, something that (then and now) receives only spotty protection in the United States. But responsibility for whitewashing of black musical culture lies not only with entertainers like Elvis (who assiduously credited black musicians as his inspirations), but also with radio DJs who stopped playing the original version of a song once a famous artist like Elvis covered it. Listeners were far from encyclopedic in their tastes in the 1950s and did not have the urge like many today to track the various incarnations of their favorite tunes. Black performers, meanwhile, were locked into exploitive contracts that limited their ability to profit off of their own performances, so even those whose work was suddenly popular were not assured royalties. The critics of crossover covers are in many ways as deaf to musical detail as the framers of copyright law, because they too focus on only the most salient aspects of a composition. It’s easy to track the additions and omissions to lyrics from one version to the next, but changes in tempo, instrumentation, and vocal timbre are harder to read critically. Take Elvis Presley’s 1956 cover of “Lawdy Miss Clawdy,” written and originally performed in 1952 by Lloyd Price. The lyrics of the cover are virtually the same as the original, so we have only the arrangements themselves 7 to compare. Presley’s cover is upbeat and peppy with his signature “nanny goat” vibrato. Price’s version is slower and statelier, seemingly more resigned to its painful subject matter of an unfaithful girlfriend. Price uses a simple baritone sax as a solo but the Elvis version substitutes Scotty Moore’s guitar solo. Elvis’ “Lawdy Miss Clawdy” appears on his first major label record, Elvis Presley, recorded in January 1956. He was still reveling in the success of his Sun sessions, begun in late 1954, and was already a national star by the time RCA courted him. The differences between original and cover are similar for another track off of the Elvis Presley album, “Shake, Rattle, and Roll,” written by Charles E. Calhoun and originally recorded by Joe Turner in 1954. Elvis discards the one salacious line in Turner’s version (mentioning a dress that’s so old, it allows the sun to come shining through) but otherwise keeps the lyrics intact. Turner’s version is slower than Elvis’, and like Price, Turner uses a baritone sax, which in the Elvis version are replaced with not one but two guitar solos. I can understand why some listeners may prefer the original versions to Presley’s, but it is more difficult to claim that these were immoral or unethical covers. In terms of vocal style and instrumental arrangement, Presley actually borrows relatively little from Price and Turner. His appropriations are much more straightforward, taking from the materials already protected by copyright: lyrics and melody. So unless a cover artist can be criticized for not imitating a respected artist’s rendition, we have to reevaluate Elvis’ transgressions. Music critics for the most part still look kindly on Elvis’ second album, but it was in many ways already a decline from his first studio work. As Elvis himself admitted, “My music wasn’t the same after Sun.” 17 The nanny goat vibrato already seems a caricature of his smoother, less self-conscious singing of 1954-5. And Scotty Moore’s solos, while impeccable, already resemble stylized, perfunctory gestures when forced into a two-minute song format. If Elvis was, as Nelson George argues, “just a package, a performer with limited musical ambition and no real dedication to the black style that made him seem so dangerous,”18 then we are really condemning him not for what he stole from black music, but for what he didn’t steal, or for what he retained from his own musical adolescence. Elvis’ efforts on the RCA album sound like a futile attempt at recapturing the magic that he somehow created during the Sun sessions, futile because of RCA’s demands that he 8 sound like a “pop” singer. The Sun recordings were admittedly indebted to black R&B, but they also borrowed from country, gospel, and the blues. The sound one can most justifiably credit Elvis with inventing was rockabilly, something that his peer Carl Perkins developed more fully in the mid-1950s. But Elvis was already a million-dollar seller by 1956, and was struggling to balance his own fledgling performance style with the rock ‘n’ roll style he unwittingly created. ALLUSION, STYLE, AND VOICE The example above involves works that borrow from lyrics or melodies. These facets of musical expression can in principle enjoy protection under the US copyright regime, but as we saw above, questions of ownership are moot if the original work is itself in the public domain. With the Elvis Presley covers, the aspects that made these works most remarkable were not their lyrical and melodic appropriations, but rather what they borrowed in terms of musical style. Much of the affective impact of a piece of music resides in performance style, something that receives no protection under federal law. Anyone who has heard the difference between Little Richard’s and Pat Boone’s versions of “Tutti Frutti” can attest to the fact that performance style makes all the difference between a compelling interpretation and a rendition that falls flat. Singers are acutely aware of the power and their voices can wield. Famous entertainers and celebrities have succeeded in the past few decades in increasing protection for aspects of their personas that still lack coverage under statutory copyright law, aspects such as voice and performance style. Three pivotal cases involve well-known musicians: Nancy Sinatra, Bette Midler, and Tom Waits. All three sued companies for hiring singers to imitate their distinctive vocal style in television or radio commercials. In all three cases, we have essentially the same scenario of a celebrity being impersonated for the sake of advertising. Yet these three cases were prosecuted using different strategies and encountered varying degrees of success, largely because the law has evolved considerably in its position regarding performers rights in the past thirty years. Nancy Sinatra litigated in 1970, when performers rights were virtually nonexistent. Bette Midler sued in 1988, when the right of publicity was gaining strength in California law. Tom Waits’ complaint was decided in 1991, and his counsel could refer to both to laws and trial 9 outcomes that defended performers rights separately from those of authors or composers. With three different ways of arguing what was essentially the same complaint, we see that in the courtroom, as in the recording studio, style and timing are everything. If a singer is famous enough to be recognized by virtue of his voice alone, then he has at least a chance of arguing that his voice is property and cannot be appropriated or mimicked without permission. Musical impersonation cases may become more common as new technologies begin to allow for unparalleled degrees of fidelity in vocal imitation. Until recently, synthesizers could render musical instruments reasonably well, but the human voice, with its phonemes and tonal variations, was too difficult to reproduce with anything beyond a robotic monotone. The Vocaloid, a new software developed by the Yamaha Corporation, has overcome this challenge.19 The program consists of thousands of individual vowels and consonants recorded from a real singer. The user specifies syllables, words, pitches, and rhythms, and the software produces a continuous flow of song that sounds indistinguishable from a human being. In late 2003 when the Vocaloid was first primed for release, the software was programmed to produce only one style of singing: soul. But developers were already working to make other styles such as country, metal, and classical, available for purchase. The Vocaloid does what any synthesizer does: it re-performs individual sounds that were originally created by a live human being. So with today’s level of technology, the user can only produce a style of singing that originated with the singer who actually recorded his/her own voice into the Vocaloid. But given the exponential rate of growth in software sophistication, it is only a matter of time before the Vocaloid and similar voice synthesis programs could imitate voices that were not fed into it. This has obvious applications in the commercial arena, where celebrity voices could be recreated for the purposes of hawking products. The legal questions posed by this technology are provocative. Let’s imagine a hypothetical situation in which McDonalds used a vocal synthesis program to create a Frank Sinatra-imitation voice that sings a jingle about hamburgers. If the Frank Sinatra Estate objected to the imitation, would it have a viable complaint in the courts? And who would be the target of a lawsuit: McDonalds, or the manufacturers of the software, or both? Many synthesizers currently available contain only pre- 10 cleared samples, meaning that the originators of the sounds have issued general licenses allowing for any usage. But with the next stage of acoustics technology, sampling may become passé as consumers become increasingly empowered to imitate musicians who never licensed their work in the first place. Elvis Presley’s post-mortem body and voice are animated by the contradictions and tensions that characterize much of musical appropriation during the 20th century. On the most basic level, Presley was clearly adept at alluding to black style, and his harshest critics upbraided him not only for what he borrowed from African-American style, but for what he left out. For these detractors, Elvis’ crime was being at the right place at the right time, a white artist amid the seething stew of R&B that allowed Presley to take credit for the strides made by Chuck Berry and Little Richard. But Elvis is the quintessential figure of allusive appropriation not only for his own borrowings and thefts, but of course for the myriad appropriations of Elvis himself that permeate modern culture. Most of these appropriations are only parenthetically musical. Elvis’ silhouette in the 1993 film True Romance offers advice to the protagonist, but his onscreen presence is reduced to a few hip wiggles. Elvis’ image appears on postage stamps and his imitators fill Las Vegas nightclubs and wedding chapels, all under the watchful eye of EPE. Forget for a moment that the identity of Elvis is one of the most heavily protected commodities in the world; forget too that the EPE is thriving by marketing the King’s image in a variety of different media. Let’s just listen to Elvis’ resurrected voice in the 2002 remix of “A Little Less Conversation” by JXL. This version sets Elvis’ original lyrics to electronica backup, and scored high on the UK charts. There is the sheer novelty of hearing Elvis’ expired voice alive again in a hip new electronica format. There is the amusement from imagining a rock ‘n’ roll star recontextualized into club culture. But what does this bit of Elvis mean to listeners in 2002? Not as much as it could or should mean. To be fair, this last example is not allusion at all, but duplication: Elvis’ original vocal track was copied onto a digital sampler and set to a new accompaniment. But for all the novelty of Elvis’ new digs, we are already used to the idea of Elvis on black velvet, Elvis imitators, and Elvis covers. The distinction between allusion and copying is becoming dimmer. 11 1 Stan Soocher, They Fought the Law: Rock Music Goes to Court (New York: Schirmer, 1999), 120. 2 Erika Doss, Elvis Culture: Fans, Faith, and Image (Lawrence, KS: University of Kansas Press, 1999), 216. 3 Copyright Act, U.S. Code 17 (1976), sec. 106a. 4 Berne Convention Ratification Act, Public Law 100-568, U.S. Statutes at Large 102 (1988): 2853, codified at U.S. Code 17 (1977), sec. 101. 5 This bars the copyrighting of dance steps for common social dances, as well as conventional gestures such as the “thumb’s up” or “okay” hand signals. 6 For a history of the idea/expression dichotomy in United States copyright legislation, see Siva Vaidhyanathan, Copyrights and Copywrongs (New York and London: New York University Press, 2001), 28-9. 7 Music historians use the term “Romantic” to describe European concert music from around 1800 to 1900, especially those pieces displaying extreme emotional expression. 8 Beethoven and Brahms were expert improvisers whose best work may never have been notated. Yet the notation of their surviving works has been treated with such deference that it is difficult to think of, say, the sheet music for Beethoven’s op.132 String Quartet as simply a guide to performance. Italian musical culture during the 19th century was less dependent on the score. Rossini operas were routinely modified from performance to performance to match the skills of the musicians and the conditions of the opera house. Carl Dahlhaus, Nineteenth-Century Music, trans. J. Bradford Robinson (Berkeley and Los Angeles: University of California Press, 1989), 9. 9 Vaudeville was a form of light entertainment popular in Europe and the Americas in the early 20th century, featuring music, comedy, acrobatics, and stage antics. Tin Pan Alley refers to the songwriting and music publishing business centered in New York from the 1890s through 1950s. Many songs created in Tin Pan Alley were taken on tour in Vaudeville productions.. 10 Sarah Thornton, Club Cultures: Music, Media, and Subcultural Capital (Hanover: Wesleyan University Press, 1996), 34-50; Joseph Lanza, Elevator Music: A Surreal History of Muzak, EasyListening, and Other Moodsong (New York: St. Martin’s, 1994), 46. 11 As Brian Wards states, “few fans wanted the sheet music to ‘Maybelline’—they wanted Chuck Berry’s Chess record, the specific performance.” Brian Ward, Just My Soul Responding: Rhythm and Blues, Black Consciousness, and Race Relations (Berkeley and Los Angeles: University of California Press, 1998), 43. 12 Theodore Gracyk, Rhythm and Noise: an Aesthetics of Rock (Durham: Duke University Press, 1996), ix. Christopher Small would disagree: “On the contrary, performance is the primary process of musicking, from which all other processes follow” (his italics). Small is correct at an ontological level: a recording exists only after someone has taken the trouble of performing the music. Since this book deals with IP laws, I am concerned primarily with objects like recordings that can be owned and sold. Christopher Small, Musicking: the Meanings of Performing and Listening (Hanover and London: Wesleyan University Press, 1998), 113. 13 Merges, Menell, and Lemley, Intellectual Property in the New Technology Age, 336. 14 Small, Musicking, 112-3. 15 See Leroy Jones (Amiri Baraka), Black Music (New York: William Morrow, 1967), 207; Portia Maultsby, “Beginnings of a black music industry,” in Who’s Who In Black Music, R.E. Rosenthal and Portia Maultsby, editors. (New Orleans: Edwards Printing, 1985), xi; Ward, Just My Soul Responding, 45-6. 16 Erika Doss, Elvis Culture: Fans, Faith, and Image (Lawrence, Kansas: University of Kansas Press, 1999), 174; Ward, Just My Soul Responding, 47-8. 17 Elvis Presley, quoted in Howard A. Dewitt, Elvis, the Sun Years: the Story of Elvis Presley in the Fifties (Ann Arbor: Popular Culture, Ink., 1993), 254. 18 Nelson George, The Death of Rhythm and Blues, (New York: Pantheon Books, 1988), 63. 19 Bill Werde, “Could I Get That In Elvis, Please?” New York Times, sec. 2, 23 November 2003, national edition. 12