Legal Jams

Over the past few days, as perhaps you have heard, it has become more or less impossible to get hold of a copy of "Ready to Die" (1994) -- the classic (and prophetically named) debut album by the Notorious B.I.G., a gangster rapper killed in a shooting in 1997.

Well, perhaps "impossible" is overstating things. But expensive, anyway. Secondhand copies of the CD, recently selling for $6 each on Amazon, now fetch $40; and the price is bound only to go up from there. "Ready to Die" was withdrawn last week after a jury found that one of the tracks incorporated an unlicensed sample from a song originally recorded in 1992 by the Ohio Players -- the band best remembered for "Love Roller Coaster," a disco hit of the late 1970s. (Also, for an album cover featuring a naked woman covered in honey.)

Learning about the court case, I was, admittedly, shocked: Who knew the Ohio Players were still around? The Washington Post called them "funk dignitaries." Somehow that honorific phrase conjures an image of them playing gigs for the American Association of Retired Persons. They will be splitting a settlement of $4.2 million with their lawyers, which probably means a few more years on the road for the band.     

Apart from that, the whole matter came very close to being what, in the journalistic world, is called a "dog bites man" story -- a piece of news that is not really news at all. Digital technology now makes it very easy for one musician to copy and modify some appealing element from another musician's recording. Now lawyers hover over new records, listening for any legally actionable borrowing. Such cases are usually settled out of court -- for undisclosed, but often enormous, sums. The most remarkable thing about the "Ready to Die" case is that it ever got to trial.

More interesting than the legal-sideshow aspect, I think, is the question of how artists deal with the situation. Imitation, allusion, parody, borrowing stray bits of melody or texture -- all of this is fundamental to creativity. The line between mimicry and transformation is not absolute. And the range of electronic tools now available to musicians makes it blurrier all the time.

Using a laptop computer, it would be possible to recreate the timbre of Jimi Hendrix's guitar from the opening bars of "Voodoo Chile (Slight Return)" in order to color my own, rather less inspired riffs. This might not be a good idea. But neither would it be plagiarism, exactly. It's just an expedited version of the normal process by which the wealth of musical vocabulary gets passed around.

That, at least, would be my best argument if the Hendrix estate were to send a cease-and-desist letter. As it probably would. An absorbing new book by Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical Creativity, published by the University of Georgia Press, is full of cases of overzealous efforts to protect musical property. Some would count as implausible satire if they hadn't actually happened: There was, for example, the legal action taken to keep children from singing "This Land is Your Land" at summer camp.

Demers, an assistant professor of music history and literature at the University of Southern California, shows how the framework of legal control over music as intellectual property has developed in the United States. It began with copyright for scores, expanded to cover mechanical reproduction (originally, via player-piano rolls), and now includes protection for a famous performer's distinctive qualities as an icon. Today, the art (or whatever it is) of the Elvis impersonator is a regulated activity -- subject to the demands of Elvis Presley Enterprises, Inc., which exercises control over "not only his physical appearance and stage mannerisms but also the very quality of his voice," as Demers notes. "Impersonators who want to exhibit their vocal resemblance to Elvis can legally do so only after paying EPE."

What the King would say about this is anybody's guess. But as Demers reminds us, it probably wouldn't make any difference in any case: It is normally the corporate "content provider," not the artist, who now has discretion in taking legal action. The process of borrowing and modifying (whether of folk music by classical composers or Bootsy Collins bass-lines by hip-hop producers) is intrinsic to making music. But it is now increasingly under the influence of people who never touch an instrument.

It is impressive that so trim a book can give the reader so broad a sense of how musical creativity is being effected by the present intellectual property regime. The author's note indicates that Demers, apart from her academic duties, serves as "a freelance forensic musicologist" -- one of those professional sub-niches that didn't exist until fairly recently. Intrigued by this, I asked her about it.

The term "is definitely over the top," she admits, "but I can't take credit for it. It just refers to music specialists who assess borrowings and appropriations, sometimes in the courtroom but most often before any lawsuits are filed." The American Musicological Society provides a referral list of forensic consultants, which is where potential clients find her.

She's been at it for three years -- a period coinciding with her first full-time academic post. "As far as I know," she says, "I don't get any credit at USC for this type of work. I'm judged pretty much solely on research and teaching plus a bit of committee work. I do have a few colleagues at USC who've also done this sort of work. It's a nice source of extra revenue from time to time, but as far as I know, there are only two or three folks around the world who could survive doing this alone full-time."

Demers is selective about taking on freelance cases. "Some are legit," she says, "while others are sketchy, so I try to be choosy about which cases I'll take on." At one point, she was contacted "by a person who was putting together a lawsuit against a well-known singer/songwriter for plagiarizing one of his songs. His approach was to begin by telling me how serious the theft was, but he wanted me to commit to working for him before showing me the two songs. Needless to say, we ended up not working together. Most cases, though, are preemptive in the sense that producer or label wants to ensure that materials are 'infringement free' before releasing them."

There is an interesting tension -- if not, necessarily, a conflict -- between her scholarship and her forensic work. "The challenge for me in consulting," as Demers puts it, "is that I have to give advice based on what copyright law currently states. I don't agree with many aspects of that law, but my opinion can't get in the way of warning a client that s/he may be committing an actionable infringement."

In reading her book, I was struck by the sense that Demers was also describing something interesting and salutary. All the super-vigilant policing of musical property by corporations seems to have had an unintended consequence -- namely, the consolidation of a digital underground of musicians who ignore the restrictions and just do what they feel they must. The tools for sampling, altering, and otherwise playing with recorded sound get cheaper and easier to use all the time. Likewise, the means for circulating sound files proliferate faster than anyone can monitor.

As a geezer old enough to remember listening to Talking Heads on eight-track tape, I am by no means up to speed on how to plug into such networks. But the very idea of it is appealing. It seems as if the very danger of a cease-and-desist order might become part of the creative process. I asked Demers if she thought that sounded plausible.  

"Yes, exactly," she answered. "I don't want to come out and condone breaking the law, because even in circumstances where one could argue that something truly creative is happening, the borrower risks some pretty serious consequences if caught. But yes, this has definitely cemented the distinctions between 'mainstream' and 'underground or independent' in a way that actually bodes better for the underground than the mainstream. Major labels just aren't going to be attractive destinations for new electronica and hip-hop talent if this continues. And if there is a relatively low risk of getting caught, there are always going to be young musicians willing to break the law."

The alternative to guerilla recording and distribution is for musicians to control their own intellectual property -- for one thing, by holding onto their copyrights, though that is usually the first thing you lose by signing with a major label. "What I like to tell undergrads passing through USC," says Demers, "is that the era of mega-millions-earning stars is really coming to a close, and they can't expect to make large sums of money through music. What they should aim to do is not lose money, and there are several clever ways to avoid this, like choosing a label that allows the artist to retain control over the copyrights."

One problem is that artists often lack a sense of their options. "The situation is better than it used to be," Demers says, "but still, most artists are naive about how licensing works. They come with ideas to the studio and then realize that they must take out a loan in order to license their materials.  Labels don't license samples; artists do. And if a lawsuit develops, most of the time, the label cuts the artist loose and says, 'It's your problem.' "

There is an alternative, at least for musicians whose work incorporates recontextualized sound fragments from other sources. "The simple way around this," she continues, is for an artist who uses sampling to connect up "the millions (there are that many) who are willing to let their work be sampled cheaply or for free."

But as Steal This Music suggests, the problem runs deeper than the restrictions on "sampladelia." Had the Copyright Term Extension Act (CTEA) of 1998 been enacted 50 years earlier, you have to doubt that anyone would have dared to invent rock and roll. The real burden for correcting the situation, as Demers told me, falls on the public.

"I am pretty confident that content providers will continue to lobby for extending the copyright term," she says, "The CTEA passed because of the pressure that Disney and Time Warner put on Congress, and was abetted by the fact that the public was largely silent. But we're at a different point than we were in the late 1990s, and organizations like Public Knowledge and Creative Commons and scholars like Lawrence Lessig have done a good job of spreading the word about what extending copyrights does to creativity.  Next time Congress has a copyright extension bill in front of it, I hope that voters will get busy writing letters."