Who Really Owns Music: Balancing Rights And Creativity

 

Most forms of music that rely on a scale of specific notes, whether the Western harmonic and chromatic scales or the pentatonic scale used in certain Indian ragas and Javanese gamelan music, have a limited set of combinations of notes and chords that can be used in writing and performing various works. In fact, musicians often rely on a series of patterns, with a degree of algorithmic determinacy, to create various musical works. As a result, it becomes difficult to determine who exactly was the first originator of a pattern or motif in a song.

The question of ownership of music is a complex one. Certain genres inevitably thrive by building on the tunes or lyrics written by other people. For example, the musicologist Carl Lindahl has identified certain standard lyrics in 12-bar blues music that have been used in a variety of contexts, which he calls 'floating lyrics' and defines as "lines that have circulated so long in folk communities that tradition-steeped singers call them instantly to mind and rearrange them constantly, and often unconsciously, to suit their personal and community aesthetics." 

Similarly, in the Indian raga tradition, the ragas themselves are usually seen as frameworks of notes within which the singer improvises the rhythm and intonation to create a particular rasa or mood. Thus, the originator of the raga is hard to ascertain, as each singer's song based on the raga may differ widely from the next, and each raga can yield an infinite number of tunes. Conversely, in early Japanese music, the composer of a work is generally known, but the performers who set the work to be performed by various instruments are fairly anonymous.

In the folk-acoustic music tradition, the origins of many standards of the genre are unclear, and their composers are unknown. For example, the singer Vashti Bunyan picked up the melody and chords of many of the songs for her first album, Just Another Diamond Day, from various villagers and peasants she met while travelling around Scotland by caravan, whose names are not recorded. The American singer Bob Dylan also described the practice of quoting from various other literary and musical sources as part of a "rich and enriching tradition" of accretion in folk and jazz.

The critical theorist Theodor Adorno also made the controversial suggestion that such quotation or repetition of themes has become increasingly common in modern pop music, as artists and labels try to 'plug' songs by following the basic themes, melodies and subject matter that have made prior songs popular. He writes that "a song-hit must have at least one feature by which it can be distinguished from any other, and yet possess the complete conventionality and triviality of all others." Whether this can be established or not, it must inevitably lead to some obvious similarities between songs.

However, with music becoming an increasingly commercialised business, it becomes important for musicians and their managements to assert their intellectual property rights over a work, and prevent others from quoting the music or lyrics in their own art. This has led to some interesting intersections between the law and musical expression. For example, George Harrison's well-known 1970 song 'My Sweet Lord,' released on his album All Things Must Pass, became the subject of a lawsuit when the label Bright Tunes sued Harrison for allegedly copying the main motif of an earlier, moderately successful song called 'He's So Fine.'

The crux of the case was that Harrison had used the unusual motif of G-A-C-A-C, with a variation in the second instance that inserted a grace note before the end. He had also interspersed that with another motif of the notes G-E-D being repeated four times. Both of these were relatively common combinations of the seven notes of the major scale, but musical experts who had been called to testify said that they had heard for the first time in 'He's So Fine,' the use of both motifs together, with the grace note in the first motif.

Thus, it was ruled that Harrison had unwittingly and unconsciously plagiarised the earlier song, in a case of cryptomnesia, a psychological phenomenon whereby a person does not recognise a resurfaced memory as something he has encountered earlier, but assumes it to be something new and original. The case did, however, set a precedent for later cases about musical copyright infringement and plagiarism.

Another aspect of the debate surrounding quotation and ownership of music is that of cultural appropriation, the practice of using elements of a minority or marginalised culture in a way that is divorced from their original context, leading to commercial gain for the person appropriating it, or both. In music, several genres and forms, ranging from jazz to calypso, reggae and hip-hop, have originated as the result of drawing inspiration or themes from other cultures or social groups, while acknowledging their debt. 

At other times the lines between inspiration and cultural appropriation can be blurry. Take for example Simon and Garfunkel's cover of 'El Condor Pasa' on their 1970 album Bridge Over Troubled Water, which was also the subject of a copyright case. Paul Simon was told by the leader of the band Los Incas that the song was a traditional folk song from Peru, and that in the U.S., Los Incas themselves collected royalties from the song. While it would in itself be ethically vague for Los Incas to profit off the products of another culture, which they themselves did not own, the truth was that the extent of the intellectual-property infringement was much greater.

The song was not a traditional folk melody whose author's identity was lost to time; it had been composed as recently as 1913 by the Peruvian songwriter Daniel Alomia Robles, who had written it for a zarzuela or a musical play, accreting various elements of Andean folk songs. His son, the filmmaker Armando Robles Godoy, filed a successful suit against Simon and Garfunkel, and got his father listed as a co-author of the song. In a later interview, Godoy said that he bore the American singers no ill-will, and even noted that "It was an almost friendly court case because Paul Simon was very respectful of other cultures. It was not carelessness on his part." However, this case points to the endemic nature of cultural appropriation and misuse of cultural elements in mainstream music.

The question of who really owns a piece of art is fraught regardless of which art form we are referring to. The relationship between intellectual property law, commerce and music has always been complex, largely because of the culture of accretion, quotation and improvisation that exists as a part of many musical genres. However, as music becomes increasingly commercialised, and streaming platforms and the Internet also become major stakeholders in the industry, questions about who gets to use, sell and profit off a work of music are more relevant than ever. 

The big risk is that the legal and commercial interests should not stifle fair and approved uses of traditional music, which embellish and sometimes even give new life to that music. For example, jazz thrives on building on earlier music, very often with the consent of the composers themselves.

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