Bibliography of Remix Culture and Music

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Recommendations by James Boyle:

"Musical borrowing is the subject of the next “graphic novel”—which is to say comic book—produced by me, Keith Aoki, and Jennifer Jenkins: Theft!: A History of Music (Durham, N.C.: Center for the Study of the Public Domain, forthcoming 2009). Our earlier effort to make intellectual property accessible to film makers and mashup artists can be found in Bound By Law (Durham, N.C.: Center for the Study of the Public Domain, 2006), available in full at http://www.law.duke.edu/cspd/comics. An expanded edition of Bound By Law will be published in the Fall of 2008 by Duke University Press. However, neither graphic novel can provide a sense of the scholarly literature in music, musicology, law, and biography that enabled me to write this chapter.


Musical History

The indispensable guide to music history is J. Peter Burkholder, Donald Jay Grout, and Claude V. Palisca, A History of Western Music, 7th ed. (New York: W. W. Norton, 2006). For those who have access through a university or library the Grove Music database is the single most comprehensive computer-aided source: Grove Music Online, http://www.grovemusic.com/index.html. A fascinating book by Frederic Scherer, Quarter Notes and Bank Notes: The Economics of Music Composition in the Eighteenth and Nineteenth Centuries (Princeton, N.J.: Princeton University Press, 2004), explores different incentive systems—such as patronage or markets enabled by intellectual property rights—and their respective effect on musical aesthetics and musical production. Scherer is one of the foremost contemporary economists of innovation. To have him writing about the practices of court composers and manuscript publishers is completely fascinating. At the end of the day, he diplomatically refuses to say whether patronage or market mechanisms produced “better” music but the careful reader will pick up indications of which way he leans.


Musical Borrowing

There is a vast scholarly literature on musical borrowing—indeed the discipline of musicology takes the study of borrowing, in its largest sense, as one of its main organizing themes. Beyond a personal tour provided by Professor Anthony Kelley of Duke University, I found a number of books particularly useful. Burkholder’s History (J. Peter Burkholder, Donald J. Grout, and Claude V. Palisca, A History of Western Music, 7th ed. (New York: W. W. Norton, 2006)) is full of examples of borrowing and influence—whether of style, notation, musical conventions, or melody itself. But it is Burkholder’s book on Charles Ives—that fertile early-twentieth-century borrower—that was most influential: J. Peter Burkholder, All Made of Tunes: Charles Ives and the Uses of Musical Borrowing (New Haven, Conn.: Yale University Press, 1995). Ives’s own thoughts on his mashup of prior American musical forms can be found in Charles Ives, Memos, ed. John Kirkpatrick (New York: W. W. Norton, 1991), 10–25. David Metzer’s Quotation and Cultural Meaning in Twentieth-Century Music (Cambridge: Cambridge University Press, 2003), throws light on the way that quotations or borrowings came to have a particular cultural meaning in different musical traditions. Honey Meconi’s collection Early Musical Borrowing, ed. Honey Meconi (New York: Routledge, 2004), discusses—among many other things—the issue of borrowing between the secular and religious musical traditions, something that helped me work through that issue in this chapter. Finally, “Musical Borrowing: An Annotated Bibliography” (http://www.chmtl.indiana.edu/borrowing/) provides a searchable database of articles about musical borrowing.


Music and Copyright Law

I was particularly influenced by two books and two articles. The books are Kembrew McLeod, Owning Culture: Authorship, Ownership and Intellectual Property Law (New York: Peter Lang, 2001), and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001). McLeod and Vaidhyanathan are the authors who sounded the alarm about the cultural and aesthetic effects of the heavy-handed legal regulation of musical borrowing. Together with the work of Larry Lessig (particularly his writing on the “permissions culture”) Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random House, 2001), their scholarship has defined the field.

The two articles that influenced me the most focus more specifically on the details of the evolution of music on the one hand and music copyright on the other. Both of them are by Michael Carroll: “The Struggle for Music Copyright,” Florida Law Review 57 (2005): 907–961, and “Whose Music Is It Anyway?: How We Came to View Musical Expression as a Form of Property,” University of Cincinnati Law Review 72 (2004): 1405–1496. But these two pieces by no means exhaust the literature. Olufunmilayo Arewa has written memorably on copyright and musical borrowing in “Copyright on Catfish Row: Musical Borrowing, Porgy & Bess and Unfair Use,” Rutgers Law Journal 37 (2006): 277–353, and “From J. C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context,” North Carolina Law Review 84 (2006): 547–645. I also recommend K. J. Greene, “Copyright, Culture & Black Music: A Legacy of Unequal Protection,” Hastings Communications & Entertainment Law Journal 21 (1999): 339–392. There is much, much more. Finally, Joanna Demers’s recent book Steal This Music: How Intellectual Property Law Affects Musical Creativity (Athens: University of Georgia Press, 2006), provides a more comprehensive coverage than I can hope to in a single chapter.

Beyond the scholarly literature, two websites allow you to experiment with these issues online. The History of Sampling created by Jesse Kriss, http://jessekriss.com/projects/samplinghistory/, allows you to explore visually exactly which hip-hop samplers borrowed from which older songs and to trace the process backwards or forwards. Extremely cool. The Copyright Infringement Project, sponsored by the UCLA Intellectual Property Project and Columbia Law School, http://ccnmtl.columbia.edu/projects/law/library/caselist.html, is an extremely useful educational site that gives examples of cases alleging musical copyright infringement, including the relevant sound files. The older version of this project confusingly referred to these cases as “plagiarism” cases—something that judges themselves also frequently do. Plagiarism is the moral, academic, or professional sin of taking ideas, facts or expression and passing them off as your own. If I take the central arguments from your book and completely reword them, or if I present a series of facts you uncovered as an historian and include them in my own book without attribution, you may accuse me of plagiarism, though not of copyright infringement. If I take the words of Shakespeare or Dickens and pass them off as my own, I am committing plagiarism but certainly not copyright infringement, for even under today’s rules those works have long since entered the public domain. If I credit T. S. Eliot but then proceed to reprint the entire of “The Love Song of J. Alfred Prufrock” without the permission of the copyright holders, I am committing copyright infringement, but certainly not plagiarism. At best, plagiarism and copyright infringement overlap to some extent, but each regulates large areas about which the other is indifferent. We sap the strength of both norm systems by confusing them. The new incarnation of the project, at UCLA, has removed the word “plagiarism” from its title.


The People and the Music

A brief biography of Will Lamartine Thompson can be found in C. B. Galbreath, “Song Writers of Ohio (Will Lamartine Thompson),” Ohio Archaeological and Historical Quarterly 14 (January, 1905): 291–312. Since the copyright has expired you can read it in full, and see the picture of Thompson, at http://books.google.com/books?id=3N-WqdvA6T4C&printsec=titlepage#PRA1-PA291,M1.

The best book on Clara Ward is Willa Ward-Royster, Toni Rose, and Horace Clarance Boyer, How I Got Over: Clara Ward and the World Famous Ward Singers (Philadelphia, Penn.: Temple University Press, 1997).

The best biography of Ray Charles is Michael Lydon, Ray Charles: Man and Music (New York: Routledge, 2004). Charles’s autobiography is also a fascinating read. Ray Charles and David Ritz, Brother Ray: Ray Charles’ Own Story (Cambridge, Mass.: Da Capo Press, 1992). Charles’s website, which contains useful biographical and discographical information, is at www.raycharles.com. There is much more, of course, but these resources provide a good starting place.

There are several hagiographic biographies of Mr. West, but none worth reading. Those who have not already been inundated with information through the popular press could do worse than to start with his rather breathless Wikipedia entry http://en.wikipedia.org/wiki/Kanye_West.

The main source of information on The Legendary K.O.—a name they now use intermittently—is their website is www.k-otix.com. (I am grateful to Mr. Nickerson and Mr. Randle for confirming additional portions of the story by e-mail.) The song “George Bush Doesn’t Like Black People” is no longer available on their website, however an audio version of it is currently available at http://www.ourmedia.org/node/53964. The Black Lantern’s video can be found at http://www.theblacklantern.com/george.html. Franklin Lopez’s video can currently be found at http://www.youtube.com/watch?v=UGRcEXtLpTo. Whether any of those sites will be available in a year’s time is hard to tell. Those who plan to listen or view are reminded that the lyrics are ‘explicit.’

The songs by Clara Ward, Ray Charles, and Kanye West are widely available through a variety of commercial outlets, as are several commercial versions of “Jesus is All the World to Me” by Mr. Thompson.

I would recommend The Clara Ward Singers, Meetin’ Tonight (Vanguard Records, 1994), compact disc. It includes a version of “Meetin’ Tonight: This Little Light of Mine” in which the human limits on the ability to sustain a note are broken repeatedly. Any Ray Charles compilation will feature some of the songs discussed here. The most economical is probably Ray Charles, I’ve Got a Woman & Other Hits by Ray Charles (Rhino Flashback Records, 1997), compact disc. It includes “I Got a Woman” and “This Little Girl of Mine.” Kanye West, Late Registration (Roc-a-Fella Records, 2005), compact disc, contains the full version of “Gold Digger.”

Finally, I would love to be able to play you the full version of the Bailey Gospel Singers “I Got a Savior” (B-Side: “Jesus is the Searchlight”) (Columbia Records, 1951), 78 rpm phonograph record. Unfortunately, given the legal uncertainties I am forbidden from doing so, and I know of no licit way—for free or for pay—that you can listen to it, short of traveling to the Rodgers and Hammerstein Archives of Recorded Sound at the New York Public Library for the Performing Arts yourself and asking to hear the original 78. Perhaps that simple fact is the most elegant encapsulation of my argument here." (http://www.thepublicdomain.org/download/further-reading-collected/)