Illegal Sound –
A brief look at attitudes toward musical quotation and copyright infringement in the twenty-first century
Copyright infringement has in the last decade become a hotly debated topic, a direct result of the ease with which copyrighted material can be distributed without authorisation via the Internet. Music industry organisations have pursued these ‘pirates,’ while artists are divided on the issue. Musicians including Thom Yorke (of Radiohead)1, Neil Young2 and Courtney Love3 have publicly taken the side of the pirates, while on the other hand Metallica4, Lily Allen5 and Till Lindemann (of Rammstein)6 have been in support of anti-piracy campaigns and measures. The issue has entered the global political landscape with the Pirate Party movement established in over forty countries. The German Pirate Party has taken nearly fifty state parliament seats and is polling just behind the Greens. However, the debate is often centred around file-sharing, and fails to address the issue of ‘read-only culture.’
‘Read-only culture’ is culture that can only be consumed. It turns audiences into “passive recipients of culture produced elsewhere. Couch potatoes. Consumers. This is the world of media from the twentieth century,” according to Lawrence Lessig7, an acknowledged authority on contemporary intellectual property trends. Elizabeth Daley8 of the University of Southern California said in an interview:
From my perspective, probably the most important digital divide is not access to a box. It’s the ability to be empowered with the language that that box works in. Otherwise only a very few people can write with this language, and all the rest of us are reduced to being read-only9.
The main concern with modern copyright, claim Lessig and Daley, is not the sharing of files over the Internet, but the loss of audience interaction with media content – that creative materials will only be consumed as our culture becomes ‘read-only.’ Copyright law increasingly prevents remixes and sampling of other musical works without permission, both commercially and non-commercially, despite such provisions being allowed for text10. An example of this that I have previously written about is the trend toward content-streaming, where media is not able to be interacted with11.
Despite recent legal trends; it has not always been like this. All societies have had strong folk music trends that involve extensive appropriation of melodies particularly, and establishing a pool of shared musical “resources” from which to draw12. This trend of directly quoting or appropriating parts of other songwriters’ music was commonplace even in the first half of the twentieth century:
Starting in the 1930s, Woody Guthrie drew direct inspiration from a lot of songs associated with the Carter Family, recycling their melodies to write his own pro-union songs. For example, Guthrie wrote in his journal of song ideas: “Tune of ‘Will the Circle Be Unbroken’ – will the union stay unbroken. Needed: a sassy tune for a scab song.” Guthrie also discovered that a Baptist hymn performed by the Carter Family, “This World Is Not My Home,” was popular in migrant farm worker camps, but he felt the lyrics were counterproductive politically…The hymn could be understood to be telling workers to accept hunger and pain and not fight back. This angered Guthrie, so he mocked and parodied the original — keeping the melody and reworking the words to comment on the harsh material conditions many suffered through13.
It is well established that there is a culture of sampling, remixing and appropriation that has led to many regarded forms of artistic expression. Woody Guthrie is a respected folk musician, and Beastie Boys are noted for their contributions to bridging punk and hip-hop – in fact, sampling was key to the evolution of hip-hop14, what could be described as a distinct form of “urban folk”15. Unfortunately there have been several incidents in the last decade that have established the right to exercise control over derivative works by the original copyright holder. An ironic case is that of the song “Bitter Sweet Symphony,” recorded by the Verve in 1997. Initially they were given permission to sample part of an obscure recording of an instrumental arrangement of “The Last Time,” recorded by the Andrew Oldham Orchestra. “The Last Time” was written by Mick Jagger and Keith Richards (of the Rolling Stones) in 1965. Due to a claim that the Verve had sampled more than they were allowed, and unclear legal issues, the song-writing credits to “Bitter Sweet Symphony” transferred from Richard Ashcroft (of the Verve) to Jagger and Richards, who now receive all royalties from performances and recordings of the song16. Despite this, it is interesting that “the Last Time” itself is based on a gospel song – “This May Be the Last Time,” recorded by the Staple Singers in 195517. The Rolling Stones were free to build upon previous works – to create derivatives – yet the Verve were not.
Bearing in mind all of the above, what are the contemporary attitudes toward musical quotation rights? To answer this question, a survey was distributed online to several communities. These communities consisted of university-level music students and graduates, the general public, as well as professional and hobbyist musicians. It was not geographically confined either; I openly invited international participants. We live in an increasingly globalised socio-cultural environment. With the advent of the Internet, trends (including those in music and law) transcend traditional geopolitical boundaries. It is therefore appropriate to consult with the international community. Fifty genuine responses were given, with only one response discarded because the content did not actually address the questions.
An example of musical quotation appears in the survey to provide some background for participants who weren’t familiar with the issue. The example used was the copyright infringement case that was brought against the band Men At Work over their recording of “Down Under” (written by band members Colin Hay and Ron Strykert). In 1932, Marion Sinclair wrote a song titled “Kookaburra.” The rights to the song have been held by Larrikin Music since 1990. At some point Larrikin Music became aware of a similarity between the flute melody of “Down Under” by the band Men at Work and the tune of “Kookaburra.” “Down Under” was released in 1982, and Larrikin successfully sued EMI Songs Australia (Men at Work’s publisher and label) in 2010 for copyright infringement. The judge ruled that Greg Ham, the flute player on the song, had plagiarised the first two bars of “Kookaburra.” The first bar appears twice, while the second appears three times throughout the 3 minute, 43 second song18.
Dealing with a comparatively small number of participants proved easy, particularly as all but one question had a limited number of answers to choose from. This primarily quantitative data was transformed into a spreadsheet using Google Docs, which allowed for simple deduction of the results of seven of the questions, and it was fairly easy to map out the responses to the non-polar questions. Several of the questions exist to contextualise the research and to ensure validity of the responses. Questions 3–7 were intended to gauge the level of familiarity with the issue, but it is the remainder of the data that is of most use to examining contemporary attitudes towards musical quotation.
Overall, most were familiar with both songs (more than 60% for each), and 30% believed there was an “objective similarity.” The reason for the latter of these was to see how much influence was exerted on the similarity by those familiar with the copyright case. One participant who I know personally asked me what the “correct” answer was – they were determined to make their anonymous result match the idea that there is a “right” response. This link created interesting results. Two respondents missed the “correct” answer entirely, while all but one of those who did claim to find an “objective similarity” were familiar with the court case, and provided vague answers (such as “they used the Kookaburra song in their song” and “musical quotation”). If the answers of those who found a similarity are removed, only one participant found an objective similarity that was “correct” without being familiar with the copyright case. This suggests that the actual figures for the question of similarity could be as low as 2%. Exactly half the participants were familiar with the court case surrounding the two songs.
The aim of this research was to uncover what attitudes exist toward musical quotation rights. The data necessary to do this is fairly straightforward and will be examined momentarily, however it must be analysed from three perspectives: (1) the general attitude toward musical quotation, (2) the academic (or “qualified”) attitude toward musical quotation, and (3) the professional attitude toward musical quotation. The general attitude was remarkable – 92% agreed with the judge’s ruling in the “Down Under” case, while 96% of those surveyed believed that musical quotation rights are needed. Among these were eighteen university students or graduates, sixteen of which (89%) supported exemptions. Only six of fifty participants described themselves as professional musicians; nevertheless five (83%) were also in favour of quotation rights.
According to the results of the research there are a number of people within the global community who feel that the right to quote musical works in their own performances, recordings and compositions should exist, as they do for text. There is also a significant number of academics who support these musical quotation rights. This is by no means the most ideal circumstance for reviewing the situation, and should not be held as a catalyst for change in copyright law regarding music, however it should be seen as the impetus for further research into this area. A much larger and varied sample size, with many more questions, would greatly assist discussion of this issue – a topic that clearly warrants attention.
Appendix A – Survey
Appendix B – Pie charts of survey results
1 Merrick, J, “The Net closes in on internet piracy,” The Independent, August 16, 2009.
2 Richmond, S, “‘Piracy is the new radio,’ says Neil Young,” The Telegraph, February 1, 2012.
3 Love, “Courtney Love does the math.”
4 Metallica v Napster, Inc. (2001) No. C 00-4068 MHP.
5 Merrick, J, “The Net closes in on internet piracy,” The Independent, August 16, 2009.
6 Pro-copyright campaign launched in Germany.
7 Lessig, Free Culture, 37.
8 Daley was the executive director of the University of Southern California’s Annenberg Center for Communication and dean of the USC School of Cinema-Television.
9 Lessig, Free Culture, 37.
10 Engström and Falkvinge, The Case for Copyright Reform, 88.
11 Olbrycht-Palmer, “Piracy.”
12 McLeod, Freedom of Expression®, 14.
14 Mason, The Pirate’s Dilemma, 78-81.
15 While not an “official” expression, the strong relationship between urban youth and hip-hop and rap music opens the door for the argument that these forms of music are the folk music of that particular culture, just as blues might be considered the folk music of the Southern United States.
16 Boehlert, E, “The industry,” Rolling Stone, March 5, 1998.
17 Danor, “The story of Bitter Sweet Symphony.”
18 Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited (No 2) (2010) FCA 698.
Danor, D. “The story of Bitter Sweet Symphony,” September 28, 2008. http://www.youtube.com/watch?v=ls_J6_jtvGQ (accessed May 23, 2012).
Engström, Christian, and Rick Falkvinge. The Case for Copyright Reform. Sweden: Pirate MEP Christian Engström (self-published), 2012.
Lessig, Lawrence. Free Culture. New York, USA: The Penguin Press, 2004.
Love, C. “Courtney Love does the math.” Salon, June 15, 2000. http://www.salon.com/2000/06/14/love_7/ (accessed April 11, 2012).
Mason, Matt. The Pirate’s Dilemma: How Youth Culture Reinvented Capitalism. New York, USA: Free Press, 2008.
McLeod, Kembrew. Freedom of Expression®. New York, USA: Doubleday, 2005.
Olbrycht-Palmer, M. “Streaming is not an Alternative to piracy.” OlbrychtPalmer, February 22, 2012. http://olbrychtpalmer.net/2012/02/22/streaming-is-not-an-alternative-to-piracy/ (accessed March 23, 2012).
Pro-copyright campaign launched in Germany. Deutsche Welle, 2012. http://www.dw.de/dw/article/0,,15941214,00.html (accessed May 30, 2012).