The Public Domain Part 15

Chapter 6: I Got a Mashup 1

So far, I have talked about the root ideas of intellectual property. I have talked about its history, about the way it influences and is influenced by technology. I have talked about its effects on free speech and on compet.i.tion. Until now, however, I have not described the way that it actually affects culture. This chapter aims to rectify the omission, looking at the way copyright law handles one specific form of cultural creation--music. It turns out that some of the problems identified in Chapters 4 and 5 are not simply the result of a mismatch between old law and new technology, or the difficulties posed in applying copyright to software, to machines made of words. The same issues appear at the heart of a much older cultural tradition.

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This is the story of a song and of that song's history. But it is also a story about property and race and art, about the way copyright law has shaped, encouraged, and prohibited music over the last hundred years, about the lines it draws, the boundaries it sets, and the art it forbids.

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Music is hard for copyright law to handle. If one had to represent the image of creativity around which copyright law and patent law, respectively, are built, patent law's model of creativity would be a pyramid and copyright law's a fountain, or even an explosion.

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In patent law, the a.s.sumption is that technological development converges. Two engineers from two different countries tend to produce similar ways of catching mice or harnessing the power of steam. There are a limited number of good ways of accomplishing a technical task. In addition, technological progress is a.s.sumed to be incremental. Each development builds on the ones behind it. Based on this image, patent law makes a series of decisions about what gets covered by property rights, for how long, how to handle "subsequent improvements," and so on. Patent rights last for a short time, not only to lower costs to consumers, but because we want to build on the technology inventors have created as soon as possible, without getting their permission.

Even during the patent term, subsequent "improvers" get their own rights and can bargain with the original patent holder to share the profits.

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Copyright's a.s.sumptions are different. Copyright began with texts, with creative expression. Here the a.s.sumption is (generally) that there are infinite possibilities, that two writers will not converge on the same words, and that the next generation of storytellers does not need to take the actual "stuff" that copyright covers in order to make the next play or novel. (It may be because of this image that so few policy makers seem to worry that copyright now lasts for a very long time.) Subsequent "improvements" of copyrighted material are called derivative works, and without the rights holder's permission, they are illegal. Again, the a.s.sumption seems to be that you can just write your own book. Do not claim you need to build on mine.

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Of course, each of these pictures is a caricature. The reality is more complex. Copyright can make this a.s.sumption more easily because it does not cover ideas or facts--just their expression.

"Boy meets girl, falls in love, girl dies" is not supposed to be owned. The novel Love Story is. It is a.s.sumed that I do not need Erich Segal's copyrighted expression to write my own love story.

Even if literary creativity does converge around standard genres, plots, and archetypes, it is a.s.sumed that those are in the public domain, leaving future creators free to build their own work without using material that is subject to copyright. We could debate the truth of that matter for literature: the expansion of copyright's ambit to cover plotlines and characters makes it more questionable. Certainly many recognized forms of creativity, such as the pastiche, the collage, the literary biography, and the parody need extensive access to prior copyrighted work. But regardless of how well we think the image of individual creativity fits literature, it fits very poorly in music where so much creativity is recognizably more collective and additive, and where much of the raw material used by subsequent creators is potentially covered by copyright.

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So how does the accretive process of musical creativity fare in the modern law and culture of copyright? How would the great musical traditions of the twentieth century--jazz, soul, blues, rock--have developed under today's copyright regime? Would they have developed at all? How does the law apply to the new musicians, remixers, and samplers who offer their work on the Internet? Do the lines it draws fit with our ethics, our traditions of free speech and commentary, our aesthetic judgments? It would take a shelf of books to answer such questions definitively. In this chapter, all I can do is suggest some possibilities--using the history of a single song as my case study.

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On August 29th, 2005, a hurricane made landfall in Louisiana.

The forecasters called it "Hurricane Katrina," quickly shortened to "Katrina" as its story took over the news. The New Orleans levees failed. Soon the United States and then most of the world was watching pictures of a flooded New Orleans, seeing pleading citizens--mainly African-American--and a Keystone Cops response by the Federal Emergency Management Agency. The stories from New Orleans became more and more frightening. There were tales not only of natural disaster--drownings, elderly patients trapped in hospitals--but of a collapse of civilization: looting, murder and rape, stores being broken into with impunity, rescue helicopters fired upon, women and children s.e.xually a.s.saulted in the convention center where many of the refugees huddled. Later, it would turn out that many, perhaps most, of these reports were untrue, but one would not have guessed that from the news coverage.

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The television played certain images over and over again.

People--again, mainly African-Americans--were portrayed breaking into stores, pleading from rooftops, or later, when help still had not arrived, angrily gesturing and shouting obscenities at the camera.

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As the disaster unfolded in slow motion, celebrities began appearing in televised appeals to raise money for those who had been affected by the storm. Kanye West, the hip hop musician, was one of them. Appearing on NBC on September 2, with the comedian Mike Myers, West started out seeming quietly upset.

Finally, he exploded.

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I hate the way they portray us in the media. You see a black family, it says, "They're looting." You see a white family, it says, "They're looking for food." And, you know, it's been five days [waiting for federal help] because most of the people are black. . . . So anybody out there that wants to do anything that we can help--with the way America is set up to help the poor, the black people, the less well-off, as slow as possible. I mean, the Red Cross is doing everything they can. We already realize a lot of people that could help are at war right now, fighting another way--and they've given them permission to go down and shoot us!

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Myers, who, according to the Washington Post, "looked like a guy who stopped on the tarmac to tie his shoe and got hit in the back with the 8:30 to LaGuardia," filled in with some comments about the possible effect of the storm on the willingness of Louisiana citizens to live in the area in the future. Then he turned back to West, who uttered the line that came to epitomize Katrina for many people around the world, and to infuriate a large number of others. "George Bush doesn't care about black people!" Myers, the Post wrote, "now look[ed] like the 8:30 to LaGuardia turned around and caught him square between the eyes."1 In truth, he did appear even more stunned than before, something I would not have thought possible.

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In Houston, Micah Nickerson and Damien Randle were volunteering to help New Orleans evacuees at the Astrodome and Houston Convention Center during the weekend of September 3. They, too, were incensed both by the slowness of the federal response to the disaster and by the portrayal of the evacuees in the media.

But Mr. Nickerson and Mr. Randle were not just volunteers, they were also a hip-hop duo called "The Legendary K.O." What better way to express their outrage than through their art? An article in the New York Times described their response.

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"When they got to Houston, people were just seeing for the first time how they were portrayed in the media," said Damien Randle, 31, a financial adviser and one half of the Legendary K.O. "It was so upsetting for them to be up on a roof for two days, with their kids in soiled diapers, and then see themselves portrayed as looters." In response, Mr. Randle and his partner, Micah Nickerson, wrote a rap based on the stories of the people they were helping. On Sept. 6, Mr. Nickerson sent Mr. Randle an instant message containing a music file and one verse, recorded on his home computer. Mr. Randle recorded an additional verse and sent it back, and 15 minutes later it was up on their Web site: www.k-otix.com.2 16

The song was called "George Bush Doesn't Care About Black People" (also referred to as "George Bush Doesn't Like Black People"). Appropriately, given that Mr. West was the one to come up with the phrase, the song was built around Mr. West's "Gold Digger." Much of the melody was sampled directly from the recording of that song. Yet the words were very different. Where "Gold Digger" is about a predatory, sensual, and materialist woman who "take[s] my money when I'm in need" and is a "triflin'

friend indeed," The Legendary K.O.'s song is a lyrical and profane condemnation of the response to Katrina by both the government and the media. Here is a sample: 17

Five days in this motherf__ attic Can't use the cellphone I keep getting static Dying 'cause they lying instead of telling us the truth Other day the helicopters got my neighbors off the roof Screwed 'cause they say they coming back for us too That was three days ago, I don't see no rescue See a man's gotta do what a man's gotta do Since G.o.d made the path that I'm trying to walk through Swam to the store, tryin' to look for food Corner store's kinda flooded so I broke my way through I got what I could but before I got through News say the police shot a black man trying to loot (Who!?) Don't like black people George Bush don't like black people George Bush don't like black people

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This chapter is the story of that song. "George Bush Doesn't Care About Black People" is the end (for the moment) of a line of musical borrowing. That borrowing extends far beyond Kanye West's song "Gold Digger." "Gold Digger" is memorable largely because it in turn borrows from an even older song, a very famous one written half a century before and hailed by many as the birth of soul music. It is in the origins of that song that we will start the trail.

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I GOT A WOMAN 20

In 1955, Ray Charles Robinson, better known as Ray Charles, released a song called "I Got a Woman." It was a defining moment in Charles's musical development. Early in his career he had unashamedly modeled himself on Nat King Cole.

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I knew back then that Nat Cole was bigger than ever. Whites could relate to him because he dealt with material they understood, and he did so with great feeling. Funny thing, but during all these years I was imitating Nat Cole, I never thought twice about it, never felt bad about copying the cat's licks. To me it was practically a science. I worked at it, I enjoyed it, I was proud of it, and I loved doing it. He was a guy everyone admired, and it just made sense to me, musical and commercial sense, to study his technique. It was something like when a young lawyer--just out of school--respects an older lawyer. He tries to get inside his mind, he studies to see how he writes up all his cases, and he's going to sound a whole lot like the older man--at least till he figures out how to get his own s.h.i.t together. Today I hear some singers who I think sound like me.

Joe c.o.c.ker, for instance. Man, I know that cat must sleep with my records. But I don't mind. I'm flattered; I understand. After all, I did the same thing.3 22

In the early 50s Charles decided that he needed to move away from Cole's style and find his own sound, "sink, swim or die."

But as with any musician, "his own sound" was the product of a number of musical traditions--blues and gospel particularly. It is out of those traditions that "I Got a Woman" emerged; indeed it is that combination that causes it to be identified as one of the birthplaces of soul music.

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According to the overwhelming majority of sources, "I Got a Woman" stems from a fairly overt piece of musical borrowing--Charles reworded the hymn "Jesus Is All the World to Me"--sometimes referred to as "My Jesus Is All the World to Me."

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Musically, soul denotes styles performed by and for black audiences according to past musical practices reinterpreted and redefined. During its development, three performers played significant roles in shaping its sound, messages, and performance practice: Ray Charles, James Brown, and Aretha Franklin. If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded "My Jesus Is All the World to Me," changing its text to "I Got A Woman."4 25

That story is repeated in the biography on Charles's Web site.

"Charles reworded the gospel tune 'Jesus Is All the World to Me'

adding deep church inflections to the secular rhythms of the nightclubs, and the world was never the same."5 Michael Lydon, Charles's most impressive biographer, simply reports that "Jesus Is All the World to Me" is described as the song's origin in another published source,6 and this origin is cited repeatedly elsewhere in books, newspaper articles, and online,7 though the most detailed accounts also mention Renald Richard, Charles's trumpeter, who is credited with co-writing the song.8 26

To secular ears, "Jesus Is All the World to Me" is a plodding piece of music with a mechanical, up-and-down melodic structure.

It conjures up a bored (and white) church audience, trudging through the verses, a semitone flat, while thinking about Sunday lunch rather than salvation. It is about as far removed as one could be from the syncopated beat and amorous subject matter of "I Got a Woman." The hymn was the product of Will Lamartine Thompson--a severe-looking fellow with a faint resemblance to an elderly Doc Holliday--who died in 1909 and is buried in the same place he was born, East Liverpool, Ohio. But the words have an earnestness to them that gives life to the otherwise uninspired verse.

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Jesus is all the world to me, my life, my joy, my all; He is my strength from day to day, without Him I would fall.

When I am sad, to Him I go, no other one can cheer me so; When I am sad, He makes me glad, He's my Friend.

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Reading those words, one can understand the sincerity that made Mr. Thompson spurn commercial publishers for his devotional music, instead founding his own publishing house (also in East Liverpool) to make sure that his hymns reached the people. I can quote as much of the song as I want without worrying about legal consequences because the copyright on Mr. Thompson's lyrics has expired. So has the copyright over the music. The song was published in 1904. Copyright had only been extended to musical compositions in 1881. Like all copyrights back then, copyright over music lasted for only twenty-eight years, with a possible extension for another fourteen. If Ray Charles did indeed reword it fifty years later, he was doing nothing illegal. It had been in the public domain for at least eight years, and probably for twenty. Now maybe Charles's genius was to hear in this hymn, or in a syncopated gospel version of this hymn, the possibility of a fusion of traditions which would itself become a new tradition--soul. Or perhaps his genius was in knowing a good idea--Richard's--when he heard it, and turning that idea into the beginnings of its own musical genre.

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Soul is a fusion of gospel on the one hand and rhythm and blues on the other. From gospel, soul takes the call-and-response pattern of preacher and congregation and the wailing vocals of someone "testifying" to their faith. From rhythm and blues it takes the choice of instruments, some of the upbeat tempo, and the distinctly worldly and secular att.i.tude to the (inevitable) troubles of life. Musicologists delight in parsing the patterns of influence further; R&B itself had roots in "jump music" and the vocal style of the "blues shouters" who performed with the big bands. It also has links to jazz. Gospel reaches back to spirituals and so on.

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