Keith Negus / John Street / Adam Behr: Digitisation and the Politics of Copying in Popular Music Culture
Musicians are at the forefront of discussions around revenue loss in the music industry, yet often neglected in existing studies which usually focus on corporate perspectives or audience activities. Drawing on extensive interviews with musicians operating in different genres – and at different points in their careers – within the broad field of popular music this paper presents initial observations from an investigation of how the notion of ‘original’ ideas and rights of access (and hence copyright) are negotiated by practicing musicians. How do they regard duplicating without permission in order to circulate free copies or bootlegs? How do they see the practice of appropriating, reusing, sampling and imitating? How does this relate to the existing legal and policy framework?
With an ever-wider range of technical possibilities blurring the boundaries between production and distribution – sampling, remixing and ‘mash-ups’ – the legal mechanisms for protecting musical creativity have fallen behind both the practical means by which copyright can be breached and, crucially, the conceptual framework within which many practitioners now operate. At the same time, copying of various forms has long been intrinsic to the processes of both making music and learning how to do so. This paper begins to unpick the ways in which musicians regard different types of copying and how they feed into musical meaning, ideas of ‘fair use’ (legal and moral), attendant concepts of musical ownership and the distinctions between ‘originality’, ‘imitation’ ‘creativity’ and ‘innovation’.
Keith introduces the presentation by discussing the categories in which the presenters will discuss copying. He laments the historical concentration on whether something is or is not an infringement, and chooses the following approach to the structure of the paper.
- Copying within the creative process
- Copying for circulation
- Prior narratives dominated by industry – piracy, theft, revenue loss
- Aim to centralise musicians’ perspectives
Adam now talks about how creators side-step the ways in which musicologists and courts may ‘catch’ them. There is a distance between the true lineage of a creative object and the legal similarity. Musicians tend to proceed instinctively. Interviewees report being ‘honest with themselves’ about the avoidance of copying others’ work. The higher up the financial food chain a musician goes, the more likely there are to be issues with similarity (and therefore the more likely the management are to commission musicologists for analytical pre-emptive reports). A hit songwriter said he is more careful (with similarity) since his songs have been getting airplay. Individuals have to consider the potential reach of a song.
He now addresses sampling, and notes that some samplists see samples (especially short ones) as quasi-curational, perhaps treating them like ‘jazz licks’. One interviewee states ‘[copying is] saying “I’ve done my homework – I know what I’m doing here”‘. Younger musicians, steeped in a culture of borrowing, are often happy to give their music away for free. More experienced musicians have noted the decline in royalties over time. Younger musicians have less power, and work within a system, albeit one where there is less money. All the musicians state that live work is becoming more important to them (implicitly, as a result of less money being available from recorded work).
John now starts to ask whether interviews are the only available methodology, and starts to cite case law, including the Whiter Shade of Pale case, which famously found that an instrumental contribution (in this case, an organ solo) could not only be valued compositionally but could also be quantified (in this case, to the tune of 40% of the publishing). He now briefly discusses Kanye West’s Stronger and notes that these decisions and court judgements are defined by courts and powerfully informed by the influence of musicologists.
Keith brings the discussion round to the process of creativity, and distinguishes deliberate copying from transformative copying. He cites the commonly held belief that the transformation will solve the problem and that ‘no-one will notice anyway’. In copyright case law there tends to be a bias towards those elements that can be more easily encoded (that is, the classical tradition of melody-based IP).