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I went to an interesting talk last night with author Lewis Hyde and the former head of the NEA, Bill Ivey, who’s something of a crusader against what he sees as an increasing corporate stranglehold on creative expression in the United States. The primary concern is the excessively draconian copyright and intellectual property laws which have placed, in his estimation, about 75% of our “cultural heritage” — films, music, art — in private hands. It seems strange, for instance, that Louis Armstrong’s “West End Blues” is property of the Sony Corporation, rather than public property. The problem with too much private ownership has become obvious in the era of the internet — one of the major ways artists have always created new art is by reinterpreting old art (the mashup comes instantly to mind), an act which even in its most innocent form (a jazz soloist riffing on the melody of another song, perhaps), is illegal, punishable by fines. And we’ve all heard about the Digital Millennium Copyright Act takedowns on YouTube and the RIAA’s lawsuits against orphans in wheelchairs for downloading a copy of the “Happy Birthday” song (because there’s no one else to sing it to them, naturally). I deal with this a bit in another blog, What’s Fair Use?
Author and professor Lewis Hyde raises a similar question in regard to Bob Dylan’s early work. “Bob Dylan drew upon a rich lode of old folk tunes for most of his early songs,” Hyde writes. “That’s not theft; that’s the folk tradition at its best.” It seems that nearly two-thirds of Dylan’s work between 1961-63 — some 50 songs — were reinterpretations of American folk classics. In today’s corporate-creative environment, in which Disney was allowed to change the basic nature of copyright law back in the 90s so that their signature mouse wouldn’t fall into the public domain, Dylan’s early work would’ve landed him in court.
Hyde, who’s working on a book about the “cultural commons” and the ways we make (and protect) art, provides another useful framing device for this discussion: the U.S. Constitution.
[The Constitution] allows Congress to grant “exclusive right” to authors and inventors “for limited times”: “exclusive” so that creators may benefit short term, but “limited” so that the public may benefit in the long run. The Constitution, that is, asks Congress to find an apt balance between private wealth and commonwealth, between proprietary interests and the public domain. It allows a market in cultural property but also puts an outer boundary on that market.
Why shouldn’t a piece of intellectual property be owned by an entity, passed down through generations of a family, forever traded between private hands, just as a piece of physical property is? There are many reasons, but one is that physical property — land, for instance — is a finite resource. Hyde argues that “there are good reasons to manage scarce resources through market forces, but cultural commons are never by nature scarce, so why enclose them far into the future with the fences of copyright and patent? Thomas Jefferson, our first Commissioner of patents, once described the inherent abundance of intellectual property:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea…. He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me.
Lewis Hyde has written two wonderful books about art and culture: The Gift and Trickster Makes This World.
Comments (21)
Comment
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There are many good reasons for maintaining extended copyrights. Why shouldn’t an artist or inventor maintain the rights and profit from them? Why shouldn’t his/her heirs maintain those rights and profit from them the same as if they inherited a business or other tangible property? Why should anyone who wants be able to use someone else’s words or music to make a political statement of which the artist would not approve, as has happened recently? And do we really want anyone but Disney to be able to make cartoons of Mickey? I can just see some sleaze doing a porn version of Mickey & Minnie.
posted by Judy on 6-3-2009 at 12:08 pm
You didn’t mention the king of the copyright reform movement, Larry Lessig!
re: Judy
If our current copyright laws were in place when Walt made Steamboat Willie, the MPAA would sent ol’ Disney right to the poorhouse or the slammer for “stealing” from his contemporaries. The state of intellectual copyright law today basically outlaws the passing on of our cultural heritage.
posted by Bratlien on 6-3-2009 at 12:30 pm
I thought this article was going to be about the “plagarism” in Dylan’s album “Modern Times.” When it came out, there were at least a couple of articles saying that some of the lyrics were plagarized/heavily taken from a poet.
Wasn’t the 60s folk movement originally about taking traditional folk songs and trying to make them relevant? Or am I wrong? Joan Baez really has very few songs that she herself wrote.
posted by Jenny on 6-3-2009 at 1:33 pm
Robert Zimmerman, a 16 year old schoolboy, away at summer camp, copied a Hank Snow lyric and submitted it to his camp’s newsletter.
That is a far cry from an adult songwriter stealing a well known song and claiming credit.
It is sad when Bob Dylan gets dragged into every discussion on music. How about explaining how George Harrison had to pay for ’stealing’ the melody from ‘She’s So Fine’ for ‘My Sweet Lord?
Folk songs are sometimes based on traditional melodies. And sometimes lines are quoted from other songs or literature.
posted by moon j. on 6-3-2009 at 2:10 pm
Judy,
That explains why there is some copyright protection, but not why at the current level.
A more apt comparison is patents, where in many cases the utility greatly exceeds that of any written word and yet they only get at most 20 years of protection.
I think it is quite absurd that I can toss out a string of words in a minute and have it potentially protected for over a hundred years. Yet, I could work on an invention for years and only get 20 years?
posted by anomdebus on 6-3-2009 at 2:42 pm
It’s quite true that our culture has been hijacked and locked away be people whose only sacrifice was money. Take a look also at the Rolling Stones – their act was all about playing the blues in a rock format. Can I record ‘Satisfaction’ or ‘Love in Vain’ without checking in with someone? Probably not.
posted by Johnny on 6-3-2009 at 5:07 pm
This issue is creating huge changes in the hip hop world as well. In 2001 a lawsuit against NWA resulted in the ruling that you cannot sample any part of a song without permission, getting rid of the de minima clause.
Sampling is DJing, one of the four pillars of hip hop, searching through songs to find the perfect beat or break to MC over. And now the artists cannot do that without paying massive fees. Part of the art has simply been removed.
I truly blame it on greed. Is it really hurting George Clinton’s artistic property if NWA take a 3 second drum sample, alter it, and loop it? In turn, the company who owns the music, not Clinton himself, sued and won millions of dollars. Who is that really helping?
Public Enemy had incredible beats, arguably some of the best in hip hop’s history. If copyright laws had been so strictly adhered to then, that music would not exist.
And that’s what makes me the saddest. The music that we are missing.
posted by Hannah on 6-3-2009 at 6:26 pm
This issue is creating huge changes in the hip hop world as well. In 2001 a lawsuit against NWA resulted in the ruling that you cannot sample any part of a song without permission, getting rid of the de minima clause.
Sampling is DJing, one of the four pillars of hip hop, searching through songs to find the perfect beat or break to MC over. And now the artists cannot do that without paying massive fees. Part of the art has simply been removed.
I truly blame it on greed. Is it really hurting George Clinton’s artistic property if NWA take a 3 second drum sample, alter it, and loop it? In turn, the company who owns the music, not Clinton himself, sued and won millions of dollars. Who is that really helping?
Public Enemy had incredible beats, arguably some of the best in hip hop’s history. If copyright laws had been so strictly adhered to then, that music would not exist.
And that’s what makes me the saddest. The music that we are missing.
Best,
Hannah
posted by Hannah on 6-3-2009 at 6:28 pm
Dylan has helped keep blues, folk and country music alive by hanging new flesh on old bones. He has done this with reverence and style. And along the way he has raised the bar by creating a new kind of music and a new plane in terms of songwriting.
All artists take what went before and adapt.
posted by Tony Smith on 6-4-2009 at 3:21 am
This whole debate can be boiled down succinctly to “Johnny”s comment above, concerning The ‘Stones.
“Love In Vain” is a Robert Johnson song, yet he clearly perceives it a a ‘Stones tune.
When Johnson recorded it, I’m sure people back then knew it by someone else.
Wreckless Eric bemoaned not having “An Original Thought Inside My Head” in his song “Brain Thieves”. We’ve all been there…
posted by Freewheelin' on 6-4-2009 at 6:08 am
At first back in the 1960’s we found out Dylan had stollen his name. That his real name was Zimmerman. Then a famous musician who knows Dylan well told me
” He has stollen a lot more than his name” Then there was he has stollen the tune for “Blowing in the wind” Then the tune for ” The Times are a Changing” Then more tunes. And now I come across a Dylan tune he has stollen from somewhere every time I go to Youtube and look back at old songs. The New CD ‘Together through Life” about half I v discovered in older tunes. No wonder he’s a genious he s stollen everything that was great.
posted by albert Insinger on 6-4-2009 at 8:24 am
The change in copyright law came when Mickey Mouse was about to become available in the public domain. The US Congress sold out the public and gave big business what they wanted, as usual.
posted by HarveyF on 6-4-2009 at 8:32 am
Here’s what I do not understand: Bob Dylan can rip off, that’s right, I said it; rip off Hambone Willie Newbern by taking, almost verbatim, his “Rollin’ and Tumblin’”, which was also covered by Muddy Waters and partially lifted by Robert Johnson for inclusion in his “If I had Possession”, and nobody gets upset. Yet, on the other hand, George Harrison penned “My Sweet Lord”, which sort of sounds like “My Kind of Guy”, and got sued for it. My conclusion: Bob Dylan has very good attorneys. Dylan’s always been a word thief. Apparently, it doesn’t bother him in the least.
posted by The One-Eyed Undertaker on 6-4-2009 at 9:13 am
Since the beginning of time folk musicians have been borrowing off of each other. For example there is an old Isaac Watts tune written in the early 19th century called On My Journey Home and I have heard several different folk singers borrow lyrics from this tune and than call it there own. Dylan has been doing this since the beginning of his career. Listen to the old folk song The Patriot Game, it’s Restless Farewell. How about Masters Of War, that’s the tune from Nottuman Town. I could go on and on. Other people do it too. Tom Waits, all the old blues guys, Waylon, Willie, Merle, Springsteen. It’s a common thing in folk music, anybody that thinks Dylan is a ripoff artist has no idea of the history of music. God damn fools.
posted by Ryan on 6-4-2009 at 11:23 am
Riggs is confusing copyrights on intellectual property with ownership of sound recordings. These are 2 completely different sets of laws. Sony owns the recording of “West End Blues”; that has nothing to do with public domain.
posted by Tom on 6-4-2009 at 11:41 am
@Tom –
I’m not. The synchronization and publishing rights to west end blues are owned by Sony, so it’s not in the public domain. That means other artists can’t reference it musically in their own work, it technically can’t be played or performed in public without royalties being paid, etc. It’s a part of our national heritage but not part of our cultural commons — it is, essentially, locked away.
And people, come on. I’m not saying Dylan is a thief. But the absurdity of modern copyright law, had it been in effect that way it is now back in the 60s, would’ve made him one.
posted by Ransom Riggs on 6-4-2009 at 11:56 am
This is absolute ignorance in action. I bet not one of this legal types is a musician, or they wouldn’t be making such idiotic laws. Music always has been, and always will be, about taking what you’ve heard and somehow making it your own. If borrowing ideas from your inspirations is made illegal, music as we know it will die, and/or be forced underground. Can you imagine accountants telling doctors what they can and can’t do??? This is no different, these fools have no place to say a damn thing about this issue. Go count your money in a vault somewhere, but leave us creative type the hell alone!!!
posted by Jymi on 6-4-2009 at 3:32 pm
@Riggs-
If Sony took over publishing to West End Blues, then Armstrong got paid (or at least he should have), which was his choice. I think this says as much about the composer as the industry and lawmakers. Granted, the current laws were made out of fear of losing control of Mickey Mouse, Disney themes, etc, but this hardly affects the realm of jazz improv or live performance. The same statutory licenses were required (although probably not always obtained) 40 years ago as are today, and anyone playing or referenceing Dylan’s work while playing in a coffee shop is covered by the venue’s ASCAP/BMI licenses.
If you want to start selling copies of a derivative work, just keep in mind what the composer may have done: sold their rights for money. While not legally a Work-for-hire, the result is similar. I’m sure the artist community would prefer to see it as an Us-vs.-Them scenario between themselves and the stiffs, but if the stiffs are to be blamed, so are the composers. It’s increasingly common for labels to buy some or all of the pub rights, but that’s one of the few ways they can still survive (because they sure aren’t profiting on record sales anymore).
As a songwriter who’s assigned a portion of my publisher’s share over to a label in exchange for recording costs, I can say that this segment of the current copyright law is hardly the worst part.
posted by Tom on 6-4-2009 at 5:22 pm
I cannot help but think that making copyright laws ever more strict ultimately leads to shifting income from artists and performers to business people who don’t actually contribute anything on a cultural level.
Which is ironic, because the initial idea of copyright was just the opposite: securing artists a bigger piece of the cake so that culture may thrive.
posted by Christian Matschke on 6-5-2009 at 3:36 pm
Bob Dylan Sued Over Dignity For Plagiarism
Camden NJ June 2, 2009 -Few artists can lay claim to the controversy that has surrounded the career of songwriter James Damiano. Twenty-two years ago James Damiano began an odyssey that led him into a legal maelstrom with Bob Dylan that, to this day, fascinates the greatest of intellectual minds.
As the curtain rises on the stage of deceit we learn that CBS used songs and
lyrics for international recording artist, Bob Dylan. Bob Dylan’s name is credited to the songs. One of those songs is nominated for a Grammy as best rock song of the year. Ironically the title of that song is Dignity.
Since auditioning for the legendary CBS Record producer John Hammond, Sr., who influenced the careers of music industry icons Billy Holiday, Bob Dylan, Pete Seger, Bruce Springsteen and Stevie Ray Vaughan, James has engaged in a multimillion dollar copyright infringement law suit with Bob Dylan.
It is judicially uncontested by Bob Dylan and or Bob Dylan’s law firms Manatt, Phelps & Phillips , Parcher Hayes & Snyder, Gibson Dunn & Crutcher, Heck Brown and Sherry and Sony House Counsel that Bob Dylan and people in Bob Dylan’s entourage have solicited James Damiano’s songs and music for over ten years and eleven months, as per the law suit.
District Judge Jerome B. Simandle states in his decision “This court will accept as true Plaintiff’s allegations that Sony represented to him that he would be credited and compensated for his work if Dylan used it. Judge Simandle also stated in his decision “Plaintiff has demonstrated a genuine issue of material fact as to whether defendants had access to his work.
http://www.jamesdamiano.com/
Read more The Bob Dylan James Damiano Story
Richard Frankel
uslawjournal@gmail.com
posted by Richard Frankel on 7-29-2009 at 4:07 pm
Where is that in the constitution? It’s not in the article that grants all the powers to congress, like I would have expected. Where else would it be?
posted by Koah on 11-30-2009 at 5:21 am