Steal This Music: How Intellectual Property Law Affects Musical Creativity (review)

If current intellectual property laws had been in place in the 1940s, could Ella Fitzgerald have been sued for scatting a few bars of Gershwin in her rendition of an Arlen tune? Perhaps not, but were she recording today, her record company legal department might caution against it, or warn her of the cost. Seems ridiculous? Perhaps not after reading Joanna Demers's fascinating exploration of the impact of technology and copyright law on musical creativity.

Musicians have always borrowed and quoted freely from works that inspire them; the practice of "transformative appropriation" through allusion and arrangement is part of the creative process. However, technologies that make duplication easy and affordable have expanded the "gray zone" between musical allusion and outright plagiarism. Digital samplers, synthesizers, turntables, and home studio software (the electric guitars and drumsets of the hip-hop world—the tools of those musical forms collectively known as "sampladelia") have given musicians and nonmusicians alike the freedom to create sonic collages by cutting, pasting, and modifying the recordings of others. This freedom is being curtailed, however, by corporate "content providers" (record companies, film companies, and publishers), who control copyrights and trademarks and can afford to take the musicians to court to make them pay for using protected works, or cease and desist. This has the chilling effect of forcing those who sample to make their choices based on economic and legal, rather than strictly aesthetic considerations. Demers argues that the society's access to cultural resources and musical creativity will be increasingly limited, as long as the intellectual property legal juggernaut rolls on unchecked.

In four chapters, Demers traces the evolution of copyright law from its original meaning of "the right to copy" printed documents, including sheet music, to sound recording on any medium (vinyl, tape, CD), and the classification of music as intellectual property. She then explores the musical arrangements and allusion in the wake of compulsory licensing, and also how performance style and voice became protectable expressions. Her third chapter shows how duplication has been used to create sonic collages, from Pierre Schaeffer's musique concrète to pop novelty songs like Dickie Goodman's "Flying Saucer," and more recently, the "mash-up," a form of remix that superimposes the lyrical content of one recording over the musical background of another.

Readers old enough to remember Dickie Goodman will recognize the not-so-subtle allusion of Abbie Hoffman's yippie classic, Steal This Book (1971). However, while Demers does not offer a primer on anarchy, her final chapter explores the rise of legal alternatives ("sample packs," precleared sample compilations), as well as an underground movement of sampladelia artists who have found innovative and subversive ways to make music "in the shadow of the law." (111). This unintended consequence of excessive litigation, Demers notes, has led to even more musical forms that challenge definitions of borrowing and infringement. By devising other means of transforming the sounds that they appropriate, these artists dodge legal action, as long as they remain relatively obscure. According to one source, legal threat is now so pervasive that major record labels require artists to keep detailed logs of their mixing software's procedures to verify that sounds were not simply duplicated, but transformed.

Demers draws on and extends the work of other scholars of copyright and cultural production, such as Lawrence Lessig, Siva Vaidhyanathan, Kembrew McLeod, and Rosemary Coombe, who along with a growing number of intellectual property activists, support the idea of a Creative Commons in which ideas are freely shared. Steal This Music is the first of these works to focus on music and copyright within a broadly interdisciplinary framework. Demers, an assistant professor of music history and literature as well as a consultant on music copyright, draws an impressive range of sources, including legal cases and copyright legislation, musicology, ethnomusicology, music history, cultural theory and criticism, popular...