A few things have made me question my focus on music as the territory for this conversation recently. After all, all culture is under threat as a result of copyright conservatism in a changing media environment.
Chris Bestwick raised the point in a comment on my last post, I’ve talked about it with a few people – and a somewhat belated viewing of Rip: A Remix Manifesto earlier this evening made the point really clear.
The cultural and intellectual lockdown extends way beyond popular music into books, visual arts, academic works, medicine… and extends into the realms of international trade, global politics and genuine life and death issues.
And yet – the book in progress (not to mention this blog) is called ‘Deleting Music’ and not ‘Deleting Culture’. Why?
Well, first the most prosaic and uninteresting answer: I like music. Music is my background, it’s what I talk and teach about, and it’s what I’m most interested in. But ultimately, that’s also an unsatisfying answer. There’s more to this debate than music, and I need to acknowledge the broader cultural ramifications of that.
Second, there’s the answer that says this is an important issue and it needs to be communicated to as many people as possible. I want to talk to the people who love music – the musicians, the fans, the collectors, the independent label owners, the music educators, researchers, retailers, distributors, promoters, DJs… and if someone else could please talk to the visual artists, the biochemical engineers, the film makers, the potters, the choreographers, the architects and everyone else – that would be really cool, thanks.
I don’t want to preach a message to an audience who (quite rightly) don’t think I have any credentials or understanding in their area. My credentials, such as they are, are rooted in the music side of things – a territory I’m far more at ease discussing and debating.
But third – and I think most importantly, this book is not purely and simply about copyright reform. I am, as you may have guessed, a copyright reformist – and the purpose of this book will be as much advocacy for change as it will be a description and analysis of a cultural issue. Current copyright regimes are clearly implicated in the story I’m telling here – but that’s not the full picture of what I’m working on with this book.
There’s a genuine cultural crisis going on in the music industries. Master tapes are decaying in vaults. Original works – by artists you’ve heard of, not just obscure and irrelevant wannabes – are not being preserved. Archives and libraries are only reluctantly being supplied with copies of released material – and not reliably so.
In music, perhaps in more than any other field, culture is not merely being prevented from being remixed – it’s completely disappearing, preventing it from forming the basis of any future works or research. And it’s that, more than anything else, that I want to communicate through this book.
This is not a hypothetical problem, or merely an unfair distribution of power. Popular music culture is literally vanishing right now. Magnetically-charged metal oxide particles are falling from master tapes as we speak.
To me, that’s important, urgent – and worthy of its own book.
7 Responses to “So why focus on music?”
Andrew — (you’ve inspired me for my Monday blog post, but there’s no reason why you and I and your readers can’t begin the conversation now) there might be another reason your focus (and, I think, the attention of most) is focused on music, and it’s a legal one. As the technology to easily create “aural collages” has developed, the prevailing legal framework has been that such works are always copyright infringements. Moreover, because of its very doubtful legitimacy, now that the technology to create aural collages is in the hands of literally millions, that legal framework is insufficient to keep a flood of this new genre from overwhelming it.
In Grand Upright Music, Ltd v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), the court enjoined Biz Markie, his producers, and Warner Bros., his record company, from further distribution of Markie’s third album on the grounds that one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s song, “Alone Again, Naturally.” Judge Duffy not only did not consider whether Markie’s sample constituted fair use, but also referred the defendants to the U.S. Attorney for criminal prosecution. The prosecutors, exercising their discretion, chose not to follow up on the referral. One likes to think they were a bit more thoughtful about the applicability of fair use to the case. The case is generally considered the reason standard industry practice ever since is to pay for and receive permission to use any sample of any copyrighted recording. Judge Duffy’s opinion opens with these words:
“‘Thou shalt not steal.’ [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country”
The music industry was not particularly interested in challenging the precedent because, after all, each corporate member of it had its own recordings that could be sampled and, under the case, paid for. So we’ve been living in this legal and business environment in which the powers-that-be were happy with the pay-for-each-sample framework, and for reasons I still have not comprehended, in none of the few other cases in which the question had arisen did the fair use argument gain traction. I’m especially surprised that in Negativeland’s case (given Mark Holser’s insight into these issues) the argument didn’t go further.
Now we’ve got Gregg Gillis (d/b/a Girl Talk) touring and selling what? Aural samples, pure and simple, cobbled together on his laptop. (You can see a youtube video of him in action.) He continues unchallenged. Why? Like Negativeland, his work is genuinely original. But, also, he’s come to be in a time in which the music industry is falling apart (a music industry principal actually admitting the industry blew it with Napster last week!) and wide judicial acceptance that the “transformative” nature of an appropriating work (that is, is it creative enough to stand on its own as a creative work) the crucial question as to whether the former is non-infringing. So the industry doesn’t want to challenge Gillis. He’s a bad case for them. Better to challenge someone who knocks together a half-baked, simple melding of a couple of songs that really do no more than exploit the markets created by the originals — they can win that case. But if Gillis ended up in court the entire legal regime that was founded in Grand Upright Music would come tumbling down.
As to the KLF, have you seen the site I created for the class in which I used them as the fictional development? It’s at whatisfairuse.blogspot.com.
Fantastically helpful – thanks, Peter.
As it happens, I’m actually listening to the Girl Talk album right now, having just been reminded of how great it is by watching the ‘Rip: A Remix Manifesto’ film. Also, you might be entertained to learn that my friend Clutch and I visited Jura last month, where the KLF burned a million pounds – and I stayed in The White Room at Jura Lodge.
On our previous visit to Jura, Clutch and I had burned some money in tribute to the KLF – but it was pretend money. Clutch works in a theatre. Theatre money, it turns out, is not terribly flammable. Health and safety reasons probably – but even so, it was kind of frustrating. We were trying to assert (cut-rate) kinship and it just fizzled. Fortunately, the whisky was superb.
Anyhow… leaving aside my own thoughts about the dubious nature of scripture in courts – I find the idea of copyright infringement as ‘theft’ really interesting – and it surprises me that it never seems to get challenged, particularly.
Thanks for the link to the blog about Fair Use. We don’t have that concept here in Britain (well, we sort of do, but it’s different and it’s called something else), but it’s an important principle that supports the idea of cultural works as articles of ‘speech’.
Your term ‘aural collages’ is a useful one too. I remember my son once coming home from school with a piece of art he’d made with scissors, glue and old magazines. I’d love for his children to be able to come home with songs they’d made in much the same way.
Andrew – I suspect your son’s children will be making aural collages at a young age. I wouldn’t be surprised if your son does so tomorrow. He wouldn’t even have to do the tutorial on the existing software to start doing interesting things (based on my brief examination of his almost shockingly well-written blog. (I’ve got a 16 year old son myself, quite bright too, but he can’t write like that.)
It’s wonderful to find another fan of the KLF, but, then again, I live in the States, where they are largely unknown outside of amusement among my students a year ago that the musicians behind Doctrin’ the Tardis were people to reckon with. It was serendipity that inspired me make the KLF, whom I had not known of before, in the problem I created for that legal writing class. I only learned how fortunate I had been in that choice after I started digging further into Cauty and Drummond after the problem had already been assigned and I started writing the blog.
As for “aural collage,” I can sincerely boast that I came up with that term spontaneously one day in class when discussing the artist Jeff Koons (who was the defendant in 2 important copyright cases in the States, the earlier of which he lost (for making a sculptural reproduction of a photograph) and the later of which he won (for incorporating a photograph into a collage). But, very much to the point you discussed the other day, the term, of course, is not one “original” to me (as a cursory Google search makes quite clear).
Incidentally, I might have made the point in my first comment a bit more cogently or completely here: http://blogs.geniocity.com/friedman/2008/08/ruling-imagination-law-and-creativity-2/
Enjoy the brief bit left of your weekend.
on July 6th, 2009 at 12:35 pm #
[...] Two days ago Dubber raised this question: why is his focus on music when the issues he is exploring “extend[] way beyond popular music into books, visual arts, academic works, medicine… and extend[] into the realms of international trade, global politics and genuine life and death issues”? He believes that the reason is that the music industry is uniquely threatened by the commercialization of culture: There’s a genuine cultural crisis going on in the music industries. Master tapes are decaying in vaults. Original works – by artists you’ve heard of, not just obscure and irrelevant wannabes – are not being preserved. Archives and libraries are only reluctantly being supplied with copies of released material – and not reliably so. In music, perhaps in more than any other field, culture is not merely being prevented from being remixed – it’s completely disappearing, preventing it from forming the basis of any future works or research. And it’s that, more than anything else, that I want to communicate through this book. [...]
first watch this collage i made, not nearly as digestible as girltalk’s classic rock radio staples mixed with mainstream rap (thank you jay z for beginning the process on autotune)
collage link: http://vimeo.com/5490871
here the whole argument of our age of the mind, and its problems (data management, which the story does not go into) but the copyright ISSUE, completely defined in this book
http://en.wikipedia.org/wiki/Fair_Use:_The_Story_of_the_Letter_U_and_the_Numeral_2
it should act like a prism for the future like finnegan’s wake enough for any intelligent person to see the inevitable futility of this horseless carriage legal system that needs fucking water.
also, “dubber” is that a pun on piracy?
on March 19th, 2010 at 8:54 am #
[...] Austin Texas put more thought into the issue than that? Any regular reader of this blog (and many less-than-regular readers) know that I have written extensively on why I believe Girl Talk has not been sued. And it’s [...]