FROM J.C. BACH TO HIP HOP: MUSICAL BORROWING, COPYRIGHT AND CULTURAL CONTEXT I. INTRODUCTION 1 II. THE CONSTRUCTION OF MUSIC COPYRIGHT: SAMPLING, POSTMODERNITY AND LEGAL VIEWS OF MUSICAL BORROWING 2 A. COPYRIGHT, MUSIC AND TECHNOLOGY IN THE INTANGIBLES PARADIGM 2 B. FROM BACH V. LONGMAN TO BRIDGEPORT MUSIC: MUSIC COPYRIGHT AND HIP HOP MUSIC 3 1. The Inexact Fit of Copyright for Music 3 2. Hip Hop as Musical and Cultural Phenomenon 4 3. Copyright Doctrine and Hip Hop Music : Situating Hip Hop in Copyright Law 5 C. DICHOTOMIES AND CONTINUITIES: REPRESENTING THE “OTHER” IN MUSIC COPYRIGHT LAW 10 III. MUSICAL COMPOSITION AND MUSICAL BORROWING: MUSICAL AUTHORSHIP IN HISTORICAL AND CULTURAL PERSPECTIVE 12 A. CANONIC CLASSICAL MUSIC: THE HISTORICAL SPECIFICITY OF VISIONS OF MUSICAL COMPOSITION 12 1. Sacralization and Hierarchies of Taste: Aesthetic Value and Musical Composition 13 2. Inventions and Themes: Historicism and the Development of the Classical Canon 16 a. The Classical Music Canon: Development of an Invented Tradition 17 b. Classical Music Practices: Musical Composition and Creativity 21 3. Improvisation and Musical Borrowing by Classical Composers 21 a. Nature and Types of Musical Borrowing 21 b. Borrowing, Improvisation and Commercial Interests 24 B. COMPOSITION AND MUSICAL PRACTICE IN AN AFRICAN AMERICAN TRADITION: CULTURAL ASSUMPTIONS AND MUSICAL AUTHORSHIP 27 1. Creativity in African American Music and Cultural Forms 27 a. Repetition and Revision: Core Features of an African American Aesthetic 28 b. African American Cultural Production and Copyright Standards: Recontextualizing Hip Hop Musical Practices 29 2. The Social Roles and Social Meanings of Music: Context and Living and Museum Traditions 31 IV. COPYRIGHT, LIABILITY RULES AND HIP HOP MUSIC 32 A. SAMPLING AS AN ESSENTIAL AND NECESSARY FEATURE OF HIP HOP 32 B. HIP HOP AND THE GOALS OF COPYRIGHT: CONTROL AND COMPENSATION IN MUSICAL WORKS 33 C. HIP HOP, MUSIC INDUSTRY PRACTICES & COPYRIGHT: MUSICAL BORROWING AND LIABILITY RULES 35 1. Music Industry Licensing Practices 35 2. Liability Rule Frameworks for Hip Hop Music 36 3. A Hip Hop Sampling Framework 37 V. CONCLUSION 39 2005 LAW & HUMANITIES JUNIOR SCHOLAR WORKSHOP I. INTRODUCTION What do Beethoven and Public Enemy have in common? Both have been enormously popular performers and composers.1 Both are credited with transforming music composition and performance during their respective times in a fundamental way.2 In addition, both have copied existing works of their own or others and incorporated such music into their own works,3 thus illustrating continuity with respect to musical borrowing. The importance of musical borrowing in musical practice remains largely unreflected in copyright law. Musical borrowing is a pervasive aspect of musical production in all genres and all periods. Current copyright structures are based on a vision of musical authorship that is both historically and culturally specific. Such structures are rooted in a notion of musical practice and authorship that is linked to the formation of the classical music canon, an invented tradition that had largely emerged by the last half of the nineteenth century. Copyright legal structures and the classical music canon have relied on a common vision of musical authorship that embeds Romantic author assumptions. Such assumptions are based on a vision of musical production as autonomous, independent and in some cases even reflecting genius. The centrality of the individualistic and autonomous vision of musical authorship to both copyright law structures and conceptions of the canonic classical music tradition has resulted in a deemphasis of the importance and continuity of musical borrowing practices generally. Current copyright structures also reflect a pervasive bias toward features of music that lend themselves more readily to established forms of musical notation. As a result, such structures reflect an emphasis derived from the classical music tradition of fidelity to the musical text,4 which has become predominant in the classical tradition in the period since the formation of the classical music canon in the late nineteenth century.5 In contrast, other types of musical expression have generally related to musical texts in a different way. In jazz practice, for example, the musical text, rather than being a final authority for assessing performance, is to a far greater extent a guide on which a performance might be based. Improvisation is yet another way in which performance might differ from text. The decline of improvisation in the classical tradition is similarly connected to Romantic notions of authorship and 1 From J.C. Bach to Hip Hop 2005 LAW & HUMANITIES JUNIOR SCHOLAR WORKSHOP fidelity to sacred musical texts that became part of the emerging classical music canon in the nineteenth century. 6 This paper focuses on the implications of musical borrowing for visions of musical authorship and copyright law and their application to hip hop and other music that use existing works in their creation. Part II of this paper looks at the construction of music copyright, focusing on the implications of the vision of musical authorship inherent in the recent Bridgeport Music hip hop music cases as well as legal commentary and other cases in the music copyright area.7 Part III focuses on the vision of authorship and performance in music copyright in historical and cultural context. Part IV discusses potential ways to incorporate a liability rule based framework for sampling based partly upon existing statutory frameworks and current musical industry licensing practices. II. THE CONSTRUCTION OF MUSIC COPYRIGHT: SAMPLING, POSTMODERNITY AND LEGAL VIEWS OF MUSICAL BORROWING A. Copyright, Music and Technology in the Intangibles Paradigm Hip hop musical practices have been greatly facilitated by changing technology in music, which illustrates a recurrent theme in music history more generally. The application of copyright to music has been tested historically by the introduction of new technologies in musical performance and practice.8 Consequently, the advent and adoption of printing technology,9 the phonograph and player piano,10 radio,11 recorded song media12 and digital music content13 have all presented challenges for copyright regimes in place at the time such technologies were introduced.14 In the case of music, changing technology has led to major changes in musical industry organizational structures, which have influenced copyright doctrine.15 Copyright legal structures have in turn had a significant influence on music industry organization and business structures. In some instances, organizational structures and entities have arisen to enforce legal rights granted under copyright laws.16 Technological changes since the late twentieth century have profoundly influenced many areas, including music and copyright.17 Peer-to-peer file sharing reflects the introduction of new technologies of music dissemination in the digital era.18 Digital technology has significantly influenced music production 2 From J.C. Bach to Hip Hop 2005 LAW & HUMANITIES JUNIOR SCHOLAR WORKSHOP as well.19 Changing digital technology has facilitated music borrowing and has helped put hip hop in particular on a collision course with an expansive copyright framework.20 The conceptual difficulties at times said to characterize copyright are in part a consequence of changing technologies of dissemination and production and a copyright framework with an increasingly broad reach.21 They are also a result of greater abstraction with respect to the essence of copyright.22 This increasing abstraction, which may also be characterized as an increased degree of intangibility, is evident in the form of derivative rights that cover all “acts of exploitation relating to the protected work.”23 Treatment of hip hop within copyright law should be placed within the context of changing technological standards, expanding application of copyright doctrine and historically rooted notions of musical authorship and originality, all of which have significantly influenced musical borrowing and perceptions of such practices. B. From Bach v. Longman to Bridgeport Music: Music Copyright and Hip Hop Music 1. The Inexact Fit of Copyright for Music Copyright statutes were originally enacted for literary property.24 Consequently, how copyright came to be applied to music is a subject of considerable historical interest.25 The application of literary copyright to music is also significant in that the literary copyright model has provided an inexact fit for music in a number of important respects. The engagement of copyright with music reflects an attempt to adapt copyright to the context of music in a process that has not always been a smooth one.26 Music is not an ideal field in which to apply principles derived from literary copyright. Court considerations of music tend to limit discussion of to three principal features: melody first and foremost, and to a lesser extent, harmony and rhythm,27 which largely reflects the historical emphasis of certain European musical traditions. The Western musical scale essentially has twelve tones from which musical works may be constructed.28 This means that musical composition choices are necessarily restricted both by the limited number of tones as well as constraints that emanate musical and cultural conventions in a way that choices about literary texts are not. In addition, producers of certain types or genres of music may incorporate similar features. For example,