If we look closely, we see that music ownership ultimately stemmed from protecting the livelihood of those that make music, making the relationship between music ownership and money closely related in its conception. This should not surprise us as ownership, in general, is based on the idea that things have value. The interesting thing is how people changed their ideas about music as intellectual property. People did not always see it necessary to protect their own work using the law, but for a concoction of reasons such as ego and money, that view changes. The state of copyright laws is one way we can see how views on music ownership are changing.
The development of early copyright laws pertaining to music was founded on the idea of intellectual property. Before the 1750s music could be owned by anyone who had the skill to borrow or imitate it masterfully. The prevailing idea of creativity was built around imitation, which was based on the ideas of “Aristotle, Cicero, Horace, and Quintilian”.[1] A composer’s creativity was essentially judged on their ability to assimilate and rework existing pieces. This framework decentralized the ownership of music, which also reflected in the lagging development of copyright laws for music in comparison to copyright for books. Here, I would like to introduce another driving force behind copyright, and perhaps the real driving force in the long run: Money. Books and music prints were mostly protected by the same laws, however, book sales had more financial incentives which prompted the development of copy-right owning syndicates.[2] These groups formed independently of laws, and it takes similarity to guilds. Music, however, did not have the same incentives for the formation of copyright groups, and few registered to the Stationers’ Company, which protects published materials.[3] This changed when originality took precedent as the value of music, and more composers sought to protect the music they wrote. In the early 1700s, this came in the form of seeking ‘privileges’ from the king.[4] The privileges offered little to protect the composers’ music, but the demand shows that composers were beginning to see their music as their unique property. The ownership of music was gradually shifting towards the individual. The conflict of differing ideas about music ownership shows itself in a failed lawsuit by Thomas Arne against Henry Roberts. The defendants suggested that having exclusive rights to music amounted to a monopoly[5]. This claim makes sense if people expected any new work to be added to the public library for people to imitate. Arne did not win the suit, and many still tried with inconclusive results. In 1775, however, John Bach won a lawsuit against James Longman, which finally gave music the same protections and literary works had, making music officially an object of intellectual property that could be owned and protected by the law.
Jazz, Bebop, and sampling demonstrated that, for a time, music existed in the public domain. Similar to the Baroque period, music could be used by anyone who could tame it. Originality and its related conception of genius are European constructs formed in the 18th century, and in contrast to such, was the African American tradition. Henry Gates explains the theory behind Black literature,
Again, the originality of so much of the black tradition emphasizes refiguration, or repetition and difference, or troping, underscoring the foregrounding of the chain of signifiers, rather than the mimetic representation of novel content.[6]
Repetition, imitation, and signification are an essential aspect of Black culture, and thus Black music too. Nobody exclusively owned ideas such that nobody else could expand or signify upon it. Musicians at Minton’s developed and practically built what we know today as Bebop using that framework. Dizzy Gillespie says that at Minton’s, “We traded off ideas not only on the bandstand but in the jam sessions. We had to… maintain our individuality, yet play as one.”[7] The music that each musician made at Minton’s was unique and also contributed to the style that all of them were nurturing. An example of a musician troping on a musical idea is John Coltrane’s My Favorite Things.
The title of the piece and the main melody (0:18) is clearly referring to My Favorite Things from Rodgers and Hammerstein’s The Sound of Music.
Do Rodgers and Hammerstein own the show number? If they did, would Coltrane then be stealing and consequently show a lack of originality? History has proved otherwise because the album My Favorite Things by Coltrane is on the Grammy Hall of Fame.[8] His creativity and originality lie within his ability to build on the short phrase and make something in his own style. Further investigation should be done to see if Coltrane had to license the phrase from rights holders, but for current purposes, I argue that it’s hard to see that any individuals can own My Favorite Things[9]. Note that my argument would significantly change if Coltrane’s publishing company had to obtain a license for My Favorite Things. According to Kembrew McLeod and Peter DiCola, “ownership really means … the right to negotiate a license at a price that the owner finds acceptable.”[10] This definition is also consistent with what I have discussed about 18th-century copyright because what the composers wanted was the ability to control how their music was distributed.
Currently, the distribution of music is highly regulated by a tangle of copyright laws, and this status quo for copyright stemmed from navigating lawsuits brought on by sampling. The result of the many legal battles fought over long samples or minuscule snippets is that to use any sampled material, one must ask permission from those that hold the rights to said material. However, copyrights do not stay with the composer or recording for life as they often sell copyrights to corporations.[11] This means that owning music is like owning shares of a company putting what was once considered a pure form of art in a marketplace. The implications of copyright are vast and complex, and there are many arguments for and against it. One criticism Mcleod mentions is that “copyright can freeze the development of melodic themes and lyric by stamping the name of an author on a ‘final product.’”[12] Engagement with contemporaries and predecessors could not happen as they did in the Bebop and Sampling era, and perhaps putting the spotlight back on novel originality.
Striking a balance between protecting musicians and encouraging creativity almost seems impossible, and we’ve seen history swing the balance back and forth. Composers in the 1750s fought for more protection for their music, elevating the status of music as an intellectual craft, while lawsuits in the 20th century made an industry in which people must know who made what for want of legal action. The question now is where current copyright laws stand in this balancing act and where the current standing will lead us in the future.
[1] Buelow, G. The Case for Handel’s Borrowings: The Judgment of Three Centuries. In S. Sadie & A. Hicks (Eds.), Handel Tercentenary Collection (pp. 68). Ann Arbor, UMI Research Press.
[2] Small. , , Michael is fat is fat Kassler (Ed.), The Music Trade in Georgian England. (pp. 271-371). Ashgate.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Gates, H.L. (1988). The Signifying Monkey, A Theory of Afro-American Literary Criticism. New York, Oxford University Press.
[7] Gillespie, D. , , R. Gottlieb (Ed). Reading Jazz. New York, Pantheon Books.
[8] https://www.grammy.com/grammys/awards/hall-of-fame#m
[9] Wondering if the ownership of the rights to music constitutes ownership of music. Not within the scope of the essay.
[10] McLeod, K. DiCola, P. (2011) Creative License The Law and Culture of Digital Sampling. Durham & London, Duke University Press.
[11] Ibid.
[12] Ibid.
