Bettered by the borrower - copyrights and music composition

Whole Earth Review, Winter, 1987 by John Oswald

MUSICAL INSTRUMENTS PRODUCE sounds. Composers produce music. Musical instruments reproduce music. Tape recorders, radios, disc players, etc., reproduce sound. A device such - as a wind-up music box produces sound and reproduces music. A phonograph in the hands of a "hip hop/scratch" artist who plays a record like an electronic washboard with a phonographic needle as a plectrum, produces sounds which are unique and not reproduced - the record player becomes a musical instrument. When tape recorders, basically designed for documentation and reproduction, became available in the '40s, a few individuals, like Pierre Schaeffer in France, began transforming the recordings, distorting them into something new; producing music through them as if the tape recorders were magnetic violins. Even earlier, composer John Cage was specifying the use of radios and phonographs as musical instruments.

Quite often the sounds found emanating from phonographic and radio musical instruments have some prior ownership. These previous creators (including those who give credit to a divine source) have copyright: a charter of control over the commercial and moral implications of reproduction. But some sources continue to maintain a "finders-keepers" ethic.

THE RIGHT OF COPY

In 1976, ninety-nine years after Edison went into the record business, the U.S. Copyright Act was revised to protect sound recordings for the first time. Before this, only written music was considered eligible for protection. Forms of music that were not intelligible to the human eye were deemed ineligible. The traditional attitude was that recordings were not artistic creations, but "mere uses or applications of creative works in the form of physical objects."

For instance, Charles Ives' Symphony No. 3 was published and copyrighted in 1947 by Arrow Music Press Inc. That the copyright was assigned to the publisher instead of the composer was the result of Ives' disdain for copyright in relation to his own work, and his desire to have his music distributed as widely as possible. He at first self-published and distributed volumes of his music free of charge. In the postscripts of 114 Songs he refers to the possessor as the gentle borrower.

Later in his life Ives did allow for commercial publication, but always assigned royalties to other composers.

Ives admired the philosophy of Ralph Waldo Emerson who, in his essay "Quotation and Originality," said, What you owe to me - you will vary the phrase - but I shall still recognize my thought. But what you Say from the same idea, will have to me also the expected unexpectedness which belongs to every new work of Nature.

The real headache for the writers of copyright has been the new electronic contrivances, including digital samplers of sound and their accountant cousins, computers. The electronic brain business is cultivating, by grace of its relative youth, pioneering creativity and a corresponding conniving ingenuity, "the intimate cultural secretions of electronic, biological, and written communicative media.' "

"BLANK TAPE IS DERIVATIVE,

NOTHING OF ITSELF"

While the popular intrigue of computer theft has inspired cinematic and paperback thrillers, the robbery of music is restricted to elementary poaching and blundering innocence. The plots are trivial. The Disney cable channel accuses Sony of conspiring with consumers to let them make unauthorized Mickey mice by taping TV broadcasts on videocassette.

The dubbing-in-the-privacy-of-your-own-home controversy is actually the tip of a hot iceberg of rudimentary creativity. After decades of being the passive recipients of music in packages, listeners now have the means to assemble their own choices, to separate pleasures from the filler They are dubbing a variety of sounds from around the world, or at least from the breadth of their record collections, making compilations of a diversity unavailable from the music industry, with its circumscribed policy of only supplying the common denominator.

Former Beatle George Harrison was found guilty of an indiscretion in choosing a vaguely familiar sequence of pitches. He was nailed in court for subconsciously plagiarizing the 1962 tune "He's So Fine" by the Chiffons in his song "My Sweet Lord" (1970).

Yet the Beatles are an interesting case of reciprocity between fair use and the amassing of possession and wealth. "We were the biggest nickers in town. Plagiarists extraordinaire," says Paul McCartney (Musician, Feb. '85 p. 62). He owns one of the world's most extensive song catalogs, including a couple of state anthems. John Lennon incorporated collage techniques into pieces like "Revolution #9" which contains dozens of looped unauthorized fragments taped from radio and television broadcasts.

THE COMMERCE OF NOISE

The precarious commodity in music today is no longer the tune. A fan can recognize a hit from a ten-millisecond burst. One studio-spawned mass-market recording firm called the Art of Noise strings atonal arrays of timbres along an always inevitable beat - the melody is often retrofitted.