MUS 17 -- Week 15, Apr 29 Note: Paper #2 is due May 6 at noon, submit via TritonEd. Guidelines

Writing Center at Teaching and Learning Commons in Geisel

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Remember to keep up to date with listening IDs.

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There will be another in-section writing assignment this week.

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My office hours: Mondays 4:30 - 5:30 at the Art of Espresso Cafe.

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Jeff Chang May 13 -- FREE LIGHT REFRESHMENTS To Do, Apr 29

1. Go over quiz #4. Review last lecture. Listen to some of the classic Gangsta tracks.

2. Obscenity issues: , and PMRC.

3. IP law and

4. Listening

◦ 's solo stuff, ublicP Enemy, 's Gin and Quiz #4 review:

1. What kind of police chief was Daryl Gates?

2. Who is Freeway ?

3. Apartheid is ... ?

4. What happened in the Iran-Contra scandal?

5. Native Tongues is ... ? Listening ID practice ?? Toward Obscenity DJ Quick, Jus Lyke Compton, 1992

• Quick is from Compton, but the song is all about leaving Compton and finding all the same stuff in other cities.

• Signature evil laugh.

• Commodification/export of gangsta aesthetic?

• "They need to stop watching that Colors (1988) and Boys in the Hood (1991)"

◦ NB, John Singleton died today.

Too Short, the Ghetto, 1990

• Local rapper from Oakland, about that place in a similar way to NWA's relationship to LA.

• Samples Donny Hathaway, the Ghetto Snoop Dogg, Deep Cover, 1992

• One of Snoop's first big ecorr dings

• Dr. Dre's first solo effort teraf the breakup of NWA

• Recorded for the 1992 film of the same name, directed by Bill Duke

• Note the emphasis on police corruption rather than just gang violence

• and Big Pun 'cover' this song in 1998 Geto Boys

Scarface, and .

• One of the first eallyr big Southern acts, hailing from .

• Famous for recording really extreme gore, sex and violence. Target of various censorship campaigns.

Mind Playing Tricks on Me, 1991 • This song is more reflective than their typical fare, and was their only radio hit.

• Typical stuff is a possible forerunner to so-called "" rap groups, e.g. , possibly ?

• Often tackling issues of police brutality, although with an often hard to handle mixture of misogyny and other unpleasantness:

City Under Siege, 1990 -- Rap Genius Transcription

• Political content

Crooked Officer, 1993

"Let freedom ring from the hole in my glock for what you did to Rodney King" "and it ain't nothin you can ask us, since justice is blind, Imma buy the girl some glasses"

If you want the nasty stuff: Mind of a Lunatic Geto Boys in performance: Bushwick Bill From the We Can't Be Stopped, 1991 Censorship

Parents' Music Resource Center (PMRC):

• Founded by four well-connected political people: Tipper Gore, Susan Baker, Pam Howar, Sally Nevius

• Originally the targets were Rock musicians with sexually explicit ("porn rock"), like Prince, Darling Nikki

• The so called "filthy fifteen" include:

◦ Prince: "I knew a girl named Nikki I guess you could say she was a sex fiend, I met her in a hotel lobby masturbating with a magazine"

◦ Sheena Easton, Sugar Walls: "Spend the night inside my sugar walls"

◦ Motley Cru, Bastard

◦ AC/DC, Let me put my love into you: "let me cut your cake with my knife"

◦ Madonna, Dress you Up: "Dress you up in my love, all over your body" from Like A Virgin

◦ Black Sabbath, Trashed • Tipper Gore, in her book Raising PG Kids In An X-Rated Society, writes "at first I was stunned. Then, I got mad."

• PMRC manages to convene 1985 senate hearings, or Tipper Gore's opening remarks on the subject of obscenity in the music industry.

• "Parental Advisory" stickers are a voluntary initiative to which the RIAA agrees instead of a "ratings" system akin to the one that regulates cinema. Rage Against the Machine, 1993 protest concert 2 Live Crew, , 1989

• Released on album As Nasty as they Wanna Be

• Goofy party act that featured nasty lyrics over simple, bouncy electro beats.

• Making matters worse, the sample is extremely racially inflammatory, drawn from the controversial scene in Stanley Kubrick's 1987 Vietnam War film, It gets worse...Nasty as the Wanna Be tracks:

1. Me So Horny

2. Put Her in the Buck

3. Dick Almighty

4. C'mon Babe

5. If you Believe in Having Sex ...etc Miller v. , 1973 -- the "miller rule" for obscenity

Marvin Miller runs a business selling pornographic materials, sends out brochures in mass mailings all over California. A restaurant in Newport Beach receives one and calls the cops.

Raises question: how to know what is obscene?

Establishes the three-prong "Miller test" for determining if something is "obscene," and therefore not protected by First Amendment:

[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

... "Prurient" = excessively sexual, deriving from Latin "itch" "patently offensive" = ? ("patently" = clearly, without any ambiguity)

Obscenity, thus defined since 1973, is NOT protected by the first amendment. 2 Live Crew and the Law, part 1: Criminal Obscenity

In 1990, 2 Live Crew is arrested for performing obscene material in Broward County, .

Evidence against them is a 45-minute audio tape made of the recording by an undercover police agent. The recording is low quality, however.

2 Live Crew's attorney, Bruce Rogow (now representing Roger Stone!!!), argues that 2 Live Crew must be understood within the context of the hip hop tradition.

''These words, as crude as some people find them,'' he said, ''can have artistic value when you have an understanding, when you have them, in effect, decoded.'' ](NY imesT Article about the case)](https://www.nytimes.com/1990/10/17/us/obscenity-or-art-trial-on-rap-lyrics- opens.html?pagewanted=all)

...why is it important that they have artistic value? I thought we were talking about the law? Comparison with the obscenity case of The Perfect Moment, an 1990 exhibit in Cincinatti of photographs by Robert Mapplethorpe.

(Note: The Perfect Moment included much more graphic images, often depicting S and M, and including fully nude children (approved by their parents))

Article about the case. The Cincinatti case was ruled in favor of the museum (Mapplethorpe images are not obscene).

But it was different matter for 2 Live Crew; Mapplethorpe is an established art world fixture. 2 Live Crew are just some rappers from Florida, with no elite standing as "artists."

Recall the obscenity statute:

[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Questions raised by 2 Live Crew obscenity case:

1. Is the music obscene?

2. Is the music "obscene," as defined in legal statute?

3. Is prosecuting 2 Live Crew for obscenity implicitly racist?

4. What would be the best legal strategy for the prosecution? For the defense?

5. What do you think the outcome of the trial was (if you don't already know)?

Turn to your neighbor and have a quick debate. Whoever's last name comes first in the alphabet takes the side of the prosecution, arguing that 2 Live Crew is criminally obscene. The other takes the side of the defense. Try to come up with three points of argument from each position. Arguments regarding 2 Live Crew (from various interested parties, columnists)

FIRST:

Jack Thompson, a lawyer who was not on the prosecution team but was responsible for the trial indirectly:

"These guys are out promoting the idea that women are there for nothing but to satisfy men's desires. This stuff makes it more likely that women will be abused." Thompson also transcribes lyrics and sends them to interested parties (law enforcement in Broward Co, Fl, for example)

SECOND:

Defense (Bruce Rogow), opening statement:

''This is not guitar music. This is not violin music. This is not piano music. But this is serious art, even though it may be different.'' THIRD:

George Will, "America's Slide into the Sewer," Newsweek 1990.

Makes repeated reference to the Central Park 5 (this was before they had been exonerated!)

When arrested a defendant said, "It was something to do. It was fun." Where can you get the idea that sexual violence against women is fun? From a music store, through Walkman earphones, from boom boxes blaring forth the rap lyrics of 2 Live Crew. ... Fact: Some members of a particular age and social cohort--the one making 2 Live Crew rich--stomped and raped the jogger to the razor edge of death, for the fun of it. Certainty: the coarsening of a community, the desensitizing of a society will have behavioral consequences. FOURTH:

Henry Louis Gates, author of our beloved Signifying Monkey book, is called as an expert witness. From his NY Times Op-Ed about this case:

2 Live Crew is engaged in heavy handed , turning the stereotypes of black and white American culture on their heads. These young artists are acting out, to lively dance music, a parodic exaggeration of the age-old stereotypcs of the oversexed black female and male. Their exuberant use of hyperbole (phantasmagoric sexual organs, for example) undermines--for anyone fluent in black cultural codes--a too literal-minded hearing of the lyrics. Gates goes on:

This is the street tradition called "signifying" or "playing the dozens," which has generally been risque, and where the best signifier or "rapper" is the one who invents the most xtravagante images, the biggest lies, as the culture says. (H. "Rap" Brown earned his nickname in just this way.) In the face of racist stereotypes about black sexuality, you can do one of two things: you can disavow them or explode them with exaggeration. 2 Live Crew, like many "hip-hop" groups, is engaged in sexual carnivalesque. Parody reigns supreme, from a takeoff of standard blues to a spoof of the black power movement; their off-color nursery hymesr are part of a venerable Western tradition. The group even satirizes the culture of commerce when it appropriates popular advertising slogans ("Tastes great!" "Less filling!") and puts them in a bawdy context. 2 Live Crew must be interpreted within the context of black culture generally and of signifying specifically. Their novelty, and that of other adventuresome rap groups, is that their defiant ejectionr of euphemism now voices for the mainstream what before existed largely in the "race record" market--where the records of and Rudy Ray Moore once were forced to reside. FIFTH:

Gates's testimony was controversial. Kimberle Crenshaw, a prominent legal scholar, gives us a representative objection in "Beyond Racism and Misogyny: Black Feminism and 2 Live Crew":

This is no mere braggadocio. Those of us who are concerned about the high rates of gender violence in our communities must be troubled by the possible connections between these images and tolerance for violence against women. Children and teenagers are listening to this music, and I am concerned that the range of acceptable behavior is being broadened by the constant propagation of anti-women imagery. Nasty is misogynist, and a Black feminist response to the case against 2 Live Crew must start from a full acknowledgment of that misogyny. But such a response must also consider whether an exclusive focus on issues of gender risks overlooking aspects of the prosecution of 2 Live Crew that raise serious questions of racism. And here is where the roots of my opposition to the obscenity prosecution lie.

But Crenshaw doesn't support the obscenity case, because: 1. It's clearly racist (double standard in not prosecuting similarly vulgar white acts) 2. Fails to acknowledge its cultural roots.

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On the other hand,

While concerns about racism fuel my opposition to the obscenity prosecution, I am also troubled by the uncritical support for, and indeed celebration of, 2 Live Crew by other opponents of that prosecution. If the rhetoric of anti-sexism provided an occasion for racism, so, too, the rhetoric of anti-racism provided an occasion for defending the misogyny of Black male rappers. Trading in racial stereotypes and sexual hyperbole are well-rehearsed strategies for getting some laughs. 2 Live Crew departs from this tradition only in its attempt to up the ante through more outrageous boasts and more explicit manifestations of misogyny. Neither the intent to be funny, nor Gates's loftier explanations, negate the subordinating qualities of such humor.

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In Gates's variant, the position of Black women is determined by the need to wield gargantuan penises in a struggle to ridicule racist images of Black male sexuality. Even though Black women may not be the intended targets, they are necessarily attached to these gargantuan penises and are thus made to absorb the impact. The common message of all such strategies is that Black women are expected to be vehicles for notions of "liberation" that function to preserve their own subordination. IP Law and Hip Hop Copyright Protections

• If I create something (art, a plot, a musical composition, a musical recording, anything), I alone hold the right to profit from it, to perform it, etc . It's a kind of limited monopoly, and it only lasts 70 years after my death.

• Why do we have this law? What is the purpose of Copyright law? Stated purpose, US Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. i.e. the purpose is to stimulate progress, not to compensate authors or artists, except insofar as this would incentivize the former. Royalties

A royalty is a payment to a copyright or patent holder in exchange for usage of that property.

There are two legal instruments that are relevant here:

1. Mechanical royalties, which pertain to sound recordings.

◦ Apply to a recording itself. Triggered by radio, jukeboxes, clubs, etc.

◦ Usually controlled by the .

2. Publishing royalties, which pertain to intellectual properties, i.e. musical compositions.

◦ Triggered by the composition itself, the underlying musical idea -- traditionally, the score -- rather than its empirical sonic form.

Sampling and Copyright law.

On the face of it, hip hop practice from the very beginning represents flagrant infringement on both kinds of royalties. In order to use a sample legally, you'd have to obtain clearance for both types of intellectual property (the recording and the composition). Of course, Kool Herc was not doing that at all.

But legal precedent is thin, the issues around IP in music are complex and technical. People just sort of get away with what they can.

It's sort of an ongoing agreement among artists, labels and the legal system.

Two important things to understand:

1. If you use a sample, you must have authorization from the holder of the mechanical royalty (the recording).

2. If the sample is a substantial part of the original work from which it is taken and the new one too, you will need to pay publishing royalties (for the composition).

...but in practice things get really messy. For example, a sample can be deemed "de minimis" based on "music forensic analysis" and therefore be not legally actionable. 2 Live Crew, Pretty Woman

• Samples , Pretty Woman

• Acuff-Rose Music owns the composition "Oh, Pretty Woman"

• 2 Live Crew's management wrote to Acuff oseR to notify them they were recording a parody of this song, offered to pay. Acuff oseR refuses permissions. 2 Live Crew releases anyway.

• Acuff oseR sues, it goes all the way to the Supreme Court

Discuss: is 2 Live Crew guilty of copyright infringement on the Roy Orbison composition, "Oh Pretty Woman?"

HELD: No, it is not. Basically, opinion is that even though the 2 Live Crew project was commercial, it doesn't matter, because it's a PARODY.

• 2 Live Crew discusses the case

• Supreme Court opinion on the matter of Acuff oseR vs Campbell, 1994

The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that at least in part comments on that author's work, as 2 Live Crew's song reasonably could be perceived as doing here. In other words, the 2 Live Crew use would definitely have been copyright infringement, except for one crucial fact:

It was a parody. Parody is granted "" immunity from claims of Copyright infringement. vs. Gilbert O'Sullivan (Grand Upright Music, Ltd v. Warner Bros. Records Inc. 1991)

• Biz Markie, , from I need a haircut

◦ Rap Genius Lyrics

• Gilbert O'Sullivan, Alone Again (Naturally), 1972 - lyrics video

What do you think? Is this copyright infringement?

Official opinion on this case omfr law.justia.com

Biz Markie mounts a parody defense (supposedly, although that's not mentioned in the judge's opinion). At any rate, defense fails. Court rules against Biz Markie. Warner Bros pays sizeable settlement.

Why was a parody defense not feasible???? (or, why did it fail, if indeed it was mounted????)

... 1993, All Samples Cleared MORE cases

Jimmy Castor v. Beastie Boys, filed in 1987

Beastie Boys, Hold it Now, Hit it vs.

Jimmy Castor, Hey Leroy

Settled out of court, but had a chilling effect on industry. Turtles vs. De La Soul

De La Soul, transmitting live from mars, 1989, from Three Feet High and Rising, widely considered to be a masterpiece of sampling. vs.

The Turtles, You Showed Me Zoom out on IP questions All these trials had a huge impact on Hip Hop. Namely, people are much more careful with their samples. Consequences:

1. Most producers use fewer, more obscure samples.

2. Samples become a signifier for the "elite," like Kanye. Using a sample means that you can afford it.

Hank Shocklee on Sampling

Interested in Hip Hop and the Law?

Try Hip hop and the law, edited by Pamela Bridgewater, American University Washington College of Law 2015, a great collection of essays on the many relationships between the two. Big questions in the field of IP in music:

• Is it possible to imagine an equitable way in which the above model of musical IP is fairly applied to Hip Hop?

• Is intellectual property in the USA racist?

• Is the "borrowing" in hip hop fundamentally different from the borrowing that has always characterized musical creation?

• Is this system serving the original goal of the Copyright Clause of the US Constitution (to stimulate creativity)? Listening

• Ice Cube, Amerikkka's Most Wanted

◦ Note the differences with NWA. More political, but still using the outlaw/badman image.

• Ice Cube, Once Upon a Time in the Projects

• Ice Cube, Black Korea

◦ Intended as a response to a high profile killing of a black teenager by a orK ean liquor store owner.

◦ Very controversial, see Chang's account of Cube-Angela Davis summit.

◦ Spurred boycott of Cube-endorsed liquor products.

• Snoop Dogg, Gin and Juice