Music

"I can't think of a better illustration of the copyright system's absurdity"

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One of my favorite music writers, Ethan Hein, explains "how a folk song collector wound up as the legal co-author of a Jay-Z diss track."

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  1. Jesse, Jesse, Jesse… Don’t be critical of IP! Do you want Brian to be angry at you???

    1. Copyright 2011, Reason Magazine.

  2. Seriously, I’ve never understood how calling it “sampling” means it’s not stealing someone elses creation.

    1. It is totally stealing. The problem is not copyright. The problem is the Disney owned Congress making copyright last forever. Basically they are preventing artists from stealing anything. And the old cliche about great artists steal is true. If you can’t rework older works, it is awfully hard to create new things.

      1. In the broad sense, I think that’s true. I recall some director saying there are only three kind of movies, love stories, westerns and musicals. That’s a broad brush and a debatable point, but speaks a basic truth (e.g. Star Wars is a western) (and how many love stories are basically Romeo and Juliet). But when I first heard Run-DMC doing Aerosmith’s Walk This Way, I thought, well what’s the point. Rapping someone else’s words and tune wasn’t reworking it, except in the most superficial way, i.e. stealing (I have no idea if they paid royalties to Aerosmith).

        1. They totally paid Aerosmith. Some art is good some art is bad. But almost all art derives something from the past. Think about science fiction and fantasy. We have authors like George Lucas and Toldien who have created entire universes. And no one can write in those universes because of copyright. I am not talking just fan fiction. There is no telling what kind of stuff could be written if those things were in the public domain. Just as an example, albeit a silly one. Someone on the internet created Star Wars propaganda posters. Check them out. They are great.

          http://www.pbh2.com/astounding…..a-posters/

          Now that is not great art or anything. But it is certainly clever and worth hanging on the odd wall. But it will never happen thanks to Lucas and his spawn owning the copyright now and forever. A silly example I know. We will never know the kind of art we are depriving ourselves by keeping these things locked away forever.

          And there are tons of other examples. The old show WKRP is not on DVD because of royalty issues on the music used in the show. The PBS documentary Eyes on the Prize about the civil rights movement is out of print thanks to rights disputes. The list goes on and on. We are destroying our culture.

          1. Actually, those posters are a great example, clever and creative.

          2. Actually Lucas has taken a very light hand concerning fan expansions of the SW universe. He has basically said 1) you can’t stop it and 2) it is free advertising to get people involved in Star Wars.

            1. Unless you want to make your mascot a Star Wars character.

          3. Eyes on the Prize is back in print after a fundraising job to redo all of the licensing deals. Here’s a link with more info: http://www.wired.com/entertain…..5/08/68664

            1. That is great. Thanks.

            2. It is available at Amazon. Thanks Tim

              http://www.amazon.com/Eyes-Pri…..0140096531

          4. “Think about science fiction and fantasy. We have authors like George Lucas and Toldien who have created entire universes. And no one can write in those universes because of copyright. I am not talking just fan fiction.”

            Is that even really a reasonable application of copyright? Using a word or concept or setting or character is not copying a specific arrangement of words — it might be a ripoff of sorts, but it isn’t plagiarism.

        2. Aerosmith’s Walk This Way was already a rap. But I have no problem with cover versions and Steven Tyler (and Joe Perry?) played on Run-DMC’s version anyway. (And the Run-DMC version was, what, 14 years after the original? Not exactly a case of unreasonable copyright length.)

          The absurdity in the post’s example is that Inside Looking Out is still under copyright protection in the first place. 28 years is plenty long enough for author copyright.

          Where I think the grey area comes in is this: assume Inside Looking Out was now public domain because it’s over 28 years old. Jay-Z then samples it in 2005. Is the idea of sampling Inside Looking Out copyrightable? Are portions of Jay-Z’s track public domain?

          I don’t see why Jay-Z can’t just hire someone to play the riff instead of lifting it straight off an existing recording; as Jesse says, Jay-Z’s got the money. That is the kind of artistic “stealing” that has been acceptable for centuries.

          1. Sorry, Ethan Hein said it, not Jesse.

      2. While I oppose copyright in theory, you lower term to 28 or 30 or whatever years and put lots and lots of stuff into public domain and I wont complain about it.

        1. The duration is a big part of the problem, but making fair use uncertain and unevenly enforced is even worse. Fair use is, in essence, the safety valve that releases the tension between copyright and free speech.

          It’s not really a radical proposition to note that between the two, we should default more toward freedom of speech than copyright. After all, copyright and patents are something Congress may support–they don’t have to–and freedom of speech is something Congress must respect. Obviously, the concept of some limitation on speech rights is inherent in the copyright and patent monopolies, but that should be kept at a minimum, to avoid unnecessarily restricting protected speech.

          1. One problem is the DMCA, which essentially allows copyright holders to neutralize fair use by using DRM — unlike copyright itself, breaking DRM has no “fair use” exceptions, but is physically necessary in order to exercise fair use rights.

            In fact, since there are no real restrictions on the capabilities of DRM software protected by the DMCA, it allows the legal protections for “copyright” to be extended to essentially any restriction the copyright owner wishes impose on consumers, provided they can impose it via a technological lock of some kind.

      3. In my opinion, the single biggest problem with current copyright law is statutory damages. “Stealing” someone’s copyrighted material doesn’t necessarily cause any financial loss to the holder of the copyright. Statutory damages alleviate the requirement for the copyright holder to prove that he or she actually suffered some financial loss from the copyright infringement. This is what allowes the RIAA to demand six-figure settlements from some poor dope that has a hundred heavily compressed audio files on his or her home computer.

        Personally, I think sampling falls under fair use. But even if it didn’t, I don’t see how anyone could prove that they suffered a financial loss because a rapper sampled their song.

        1. The WKRP and Eyes on the Prize problems are a fair use problem. It is one thing to say “hey you Beach Boys, you can’t turn Sweet Little 16 into Sufin USA”. It is quite another to say that using a song in the background of a TV show amounts to stealing.

          1. The WKRP problem is actually a bit different.

            They are willing to pay to use the song, but the 90s law change makes it completely unaffordable to do with a DVD release.

            Which, yeah, could be considered a fair use problem, but WKRP isnt wanting to use them for free.

        2. Furthermore, the use of the word “stealing” is idiotic. In order to “steal” something you must take it from someone so that they no longer possess it. Calling copyright infringement stealing is absurd. Certainly people should be free to copy other people. Part and parcel with this goes the notion of residuals. Bands, for example, are irritated that they might actually have to play concerts in order to get paid, rather than necessarily becoming millionaire from residuals.

          1. I’ve been seeing this argument for years and the funny thing is it almost always comes from someone who has never been in a band, played a show or released a record.

      4. So John, property can have a time limit? You can’t have it both ways, either ideas are property (which has no arbitrary time limit) or they are not property.

        1. Who did you steal this line of reasoning from?

        2. property can have a time limit?

          The Jews thought so.

        3. Yes property can have a time limit. See the rule against perpetuities, see the life estate and so forth. Property is nothing but a bundle of rights created by law. There is nothing to say you can’t limit the time property exists before it returns to the public domain. To believe otherwise is to believe in a kind of wierd blood and soild view of property that it exists outside of what the law makes it.

          1. John — No natural law property, really?

          2. A perpetuity is a form of payment, not property. A life estate, for one, is not limited by an arbitrary time limit but by the duration of the life of the owner. Also, it is not comparable because the terms of a life estate are agreed upon by the seller and the tenant.

          3. If we assume that ideas are property, then the time limit by which the government takes away property rights after a certain period of time is neither seen in any other form of property, nor is it voluntary.

            1. The property wouldn’t exist without the government right to enforce it. It is not land. You can’t live on it. It is a special kind of property that is a creation of the government. If the government went away, you still would “own” your car and your land because you could live on it and keep others from taking it. But without the government and its court system to enforce it you couldn’t “own” the rights to a work of art in any meaningful sense of the term.

              For valuing property rights as much as they claim, Libertarians have very crude understandings of what property actually is.

  3. A perfect example of mission creep (or whatever term fits best here). There’s this great rule set up that says you can copyright your invention, song, artwork, whatever. Then, some company with deep pockets comes in and expands this rule to something absurd. People are forever paying the price afterwards.

    fwiw, I thought Run-DMC’s cover was cool, and introduced some white boys to a style of music and whatnot that they might not have otherwise been exposed to. From what I can tell, Aerosmith was totally cool with it.

    1. Aerosmith must have been cool with it, they were in the video. And no question, musical styles build on each other and blend influences. I just remember thinking, if you take the actual words and music someone else wrote and cover it in a sing-song style, it didn’t add anything original. YMMV.

      1. I don’t think Run-DMC attempted to claim any songwriter copyright on their version of “Walk This Way”.

        The biggest thieves were Led Zeppelin (or at least their business manager). They took Willie Dixon songs and tried taking full songwriter credits. AND all their arrangements of said songs were stolen from the Small Faces.

        1. In a just world, Led Zeppelin would be tortured for the rest of their days for the blatant thievery they pulled off. Every time a rock fan talks about how much hip-hop steals, I think of what Led Zeppelin were allowed to get away with and shake my head.

      2. Run-DMC revived Aerosmiths career. They were dead. The cover of Walk This Way eventually made Aerosmith a hell of a lot more money than it did Run-DMC.

        1. Another reason why Run-DMC should be put to death.

        2. Not that it’s relevant to the issue.

      3. Aerosmith must have been cool with it, they were in the video

        RunDMC kindnapped them and made them perform at gunpoint. It was awesome.

    2. Of course Aerosmith was totally cool with it. They were a washed up and nearly forgotten hack band from the 70s. They owe the past 25 years to Run-DMC.

      1. Try and tell that to that jerk Tyler.

      2. True that.

      3. Oops, didnt read far enough down.

        Exactly right.

    3. From what I can tell, Aerosmith was totally cool with it.

      I seem to recall that Aerosmith was actually in the video for it, but I may be thinking of something else.

      1. Sorry, Mainer, missed your post.

  4. One of my favorite music writers, Ethan Hein, explains “how a folk song collector wound up as the legal co-author of a Jay-Z diss track.”

    And somehow that is supposed to spur innovation…

  5. For over a year now I have been wanting to write an extensive article about folk songs that can be traced back centuries and modern artists who not only rip the songs off but copyrighted their versions of it, I need to finally get off my ass and write the damn thing.

    1. Stupid joke handles. That was me.

    2. Hey Mark. I’m the guy who wrote the original post above; it’s exciting to see it stimulating so much discussion. Please write your post about folk songs! I’d love to read it. As you can tell, the evolution of these kinds of musical memes is a strong interest of mine, and I’m sure I’d learn some new tidbits from you.

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