Digging at the confluence of culture and everything else
Tag Archives: Copyright
04/11/2014Posted by on
I’m writing this post while away with spotty access to the Internet, so you’ll have to excuse the lack of citations.
On Tuesday, I talked a little bit about some of the broad cultural barriers and incentives involved in the production of covers. Today, I’d like to drill down into the way the American copyright regime alters the incentives in covers. So, have some dry background.
Being a property owner under American law is usually a pretty sweet deal. Ownership of a thing generally entitles you to posess that thing, freely exploit that, exclude other people from having that thing, and even the ability to destroy that thing. American law also centers around the idea that one of the most important rights is the ability to give up your rights, the so called right to contract. For example, you can agree to sell your property, giving up your exclusive right to possess, exploit, exclude, destroy, etc for money. Or you can agree to rent your property, giving up your exclusive right to possess, but retaining most of the rights to exploit, exclude, destroy, etc. That is the general rule. There are of course exceptions. For example, the government can condemn your land and take it without your consent under certain circumstances, but not without compensating you – vindicating your economic rights, or economic interests – in your real property. And for most physical things and land, property, and its rights and limitations on rights are generally pretty intuitive.
Intellectual property is considerably stranger. When I have a peice of personal property – say a hammer – my right to exclude you from posessing it is pretty closely tied to my right to exploit it. After all, if you have my hammer, I can’t use it. However, if you grab and copy of my Starline Vocal Band’s Greatest Hits CD (I have no idea if this object exists) I have the same ability to use that CD and its music as I did before. For that matter, if you copied my hammer, I’m not going to care much if you deface your copy of that same hammer. The same could not be said of you deface a copy of a photograph of my wife. Perhaps for these reasons, the various laws that cover intellectual property, patent, trademark, and copyright, limit the usually absolute property rights in various ways. With copyright, the property rights are limited to a time determined by law, and have certain exceptions for “fair use” but within those restrictions, are very strong. Your property right in copyright includes the ability to exclude other people from copying your works. So again, intellectual property owners get a pretty sweet deal. Except when it comes to music.
Considering the incredible power of the music industry and the lawsuit happy RIAA in particular, this might strike you as odd, but there is actually a giant gaping hole in the side of the copyright protection for music recordings known as the mechanical license. You might imagine the proccess getting a license – that is, permission – to record a cover version of a song, involving contacting the owner of the music and negotiating a fee. That is how it works for everything else. With covers, you simply contact the Harry Fox Agency and cut them a check for the appropraite amount. The only limitations? The cover cannot change the essential nature of the work, and the cover has to be produced for sale. This is a pretty unusual piece of law.
Imagine for a moment an alternative law, where the mechanical license was not contingent on the not changing the “essential nature” of a work produced for sale, but instead by the would be cover artist convincing the appropriate neutral party that the art was good. “You can cover Rolling in the Deep” you can imagine the judge saying “but only if you add something to our listening experience sufficient to justify taking artistic control away from Adele”
In my experience there are two common reactions to a proposed scheme like this. One is positive. “Of course” someone might say “musicians should be able to better control their work and not let a bunch of college kids half-ass their way through medicore imitations. Another is strongly negative, “absolutely not!” someone might respond “there is no way we can trust the state (or anyone else, really) to decide what kind of music is valuable and what kind is not!” You might however, imagine a slightly different reaction to it. “Hold on. Maybe by letting anyone produce terrible covers, letting anyone try and fail, and fail, and fail and fail and fail, we let people produce great music? Maybe you have to be terrible before you are good.”
And this is where we wrap back around to free speech, because covers are actually a decent stand in for speech in general but with some of the parties moved around. Maybe you think can trust the state, or someone else to decide what kind of speech is sufficiently valuable to protect or allow, especially when some of the parties are more or less powerful. Maybe you think there is no way you can trust the state. Or maybe you think even if the state can be trusted to figure this out, there is a bigger goal in mind in the long run.
That, I think, is where I ultimately come down on issues of bad speech. I don’t have a problem with the idea that there is some speech that is pretty obviously bad, just like there are some covers that are really bad, and we should all say so when they are. Maybe however, we should accept that in order to get something good, we have to allow, even freely encourage people to produce any speech, because a world with too much quiet can be just as impovrished as one with too much noise.
04/08/2014Posted by on
I’m still working on a lengthy meditation on what exactly qualifies as “culture.” It is going about as well as you would expect. The difficulty of writing on such a nebulous topic is made only worse by the constant distraction of interesting ideas and writers I encounter on a daily basis. So, you dear reader, get to serve as my pensieve as I clear a little space up for other thoughts.
I am not, despite my many pretensions, under the illusion I am a musical expert. I am not even a music enthusiast. I am among the very least trained of amateur listeners and that is the way I like it. For one thing, I can enjoy little indie acts on YouTube without thinking too hard about who they are, who they sound like, or how admiting to liking that music will make me appear before my peers. One of those acts is Lauren O’Connell (her YouTube channel can be found here) and it turns out, she also occasionally blogs about the responsibilities of artists performing covers.
Some anonymous person on the internet commented on O’Connel’s cover of “The House of the Rising Sun” thusly
Only masters of music should TRY this song. When you hear Nina Simone and Odetta cover this song. You understand the monster of a song you are trying to play. The Animals, Bob Dylan and Leadbelly have tried and have all failed.
As a musician; I would never play this song. If you can’t make it better, then you shouldn’t even try. Or don’t post it at least.
O’Connell is having none of it
I used to apply that “untouchable songs” rule to myself. However, after several years of covering songs, writing songs, listening to lots of music, and undergoing the occasional artistic crisis, I decided that it’s better to live and work without that particular hangup.
So as you may have gathered, I take issue with the idea that someone shouldn’t even try to cover something that’s previously been done well if they can’t “make it better.” The implication that someone doesn’t have the right to attempt a particular artistic statement is problematic. […]
Fortunately, in this century, most of us don’t have to worry about our works actually being censored by the powers that be. But I think an attitude of censorship within the artistic community might be worse. It’s not about expression being kept underground. It’s about expression never happening in the first place.
I firmly believe that in order to be great, one must first be fucking awful. […]Right now, you should be a cocky, irreverent bastard. […] Crash and burn.
I’m torn between embracing O’Connell’s exhortation of creative daring and the natural caution that some songs and versions cannot, and ought not be topped. As a music listener, I spend most of my time listening to college kids sing a capella, folk songs, and whatever Pandora manages to slip in while I listen to those genres. As a result, I listen to an enormous number of covers, which I of course enjoy. The best are the literate covers that reach back, back in our cultural memory and musical history: popular songs by pop artists get reworked, made different, elevated to something greater than what they are. But even when it is just a bunch of college kids having fun singing the latest pop hit, there is something about the stripped down nature of most covers that I prefer to their high production value originals.
Sometimes, sometimes, you encounter a song that genuinely amazes – a bit of popular music that transcends the hit-making machine that is the music industry. Take Adele’s “Rolling in the Deep”. Adele has what all agree is an astonishing voice, both from the quality of her vocal technique and in the emotional depth of her singing. I can’t even imagine anyone singing Adele’s songs, like Adele, and better than Adele in anyway. If an angel descended from heaven in and opened his mouth to sing the song that fully realizes the Kingdom of God and I heard the first notes of Rolling in the Deep, I’d wince for fear the angel embarrassing himself. Just listen to Adele sing it!
This of course, does not stop artists from trying their very damnedest to cover it, and I’ve heard a lot of attempts to go head-to-head with Adele that fell short. Most of them aren’t bad, but they aren’t great either. I usually feel in some small way enriched after listening to music I enjoy. After listening one of these good but not good enough covers, I feel impoverished. It is in this sense that some music becomes untouchable, and “Rolling in the Deep” seems like as good a candidate for thou-shalt-not-cover as any. Despite everything I just said, one of my favorite covers is John Legend’s rendition of “Rolling in the Deep.” Legend’s voice is glorious and spiritual. Legend distills Adele’s riff on American roots music down, down into a haunting and soulful piece of music. Give it a listen.
Is Legend’s cover a violation of the untouchable songs rule submitted by the commentator? Maybe, maybe not. On one hand it is a cover of a great song that even the most virtuotic singers frequently fail to honor. On the other hand, Legend’s version is different from the original, not merely an inferior copy. His approach to it is not an attempt at imitation of Adele, or to out do Adele, but a lateral interpretation of the music.
Are transformative covers made more likely by encouraging artists to freely cover, imitate, and to be cocky and irreverent bastards? Or are they the product of strong social barriers put up by other musicians around so called great music? Do we want to tweak the mix? How many bad attempts at Rolling in the Deep by college students does John Legend’s cover justify?
As odd as it might sound, this dilemma is made possible by one of the few redeeming features of our contemporary copyright regime. Come back to this space Friday for part II, where we’ll look at how copyright law encourages covers and what this all has to do with free speech.