from j.c. bach to hip hop m b c ii. the construction of … · 2013-04-25 · hip hop as musical...

FROM J.C. BACH TO HIP HOP: MUSICAL BORROWING, COPYRIGHT AND CULTURAL CONTEXT

I. INTRODUCTION 1 II. THE CONSTRUCTION OF MUSIC COPYRIGHT: SAMPLING, POSTMODERNITY AND LEGAL VIEWS OF MUSICAL BORROWING 2

A. COPYRIGHT, MUSIC AND TECHNOLOGY IN THE INTANGIBLES PARADIGM 2 B. FROM BACH V. LONGMAN TO BRIDGEPORT MUSIC: MUSIC COPYRIGHT AND HIP HOP

MUSIC 3 1. The Inexact Fit of Copyright for Music 3 2. Hip Hop as Musical and Cultural Phenomenon 4 3. Copyright Doctrine and Hip Hop Music : Situating Hip Hop in Copyright Law 5

C. DICHOTOMIES AND CONTINUITIES: REPRESENTING THE “OTHER” IN MUSIC COPYRIGHT LAW 10

III. MUSICAL COMPOSITION AND MUSICAL BORROWING: MUSICAL AUTHORSHIP IN HISTORICAL AND CULTURAL PERSPECTIVE 12

A. CANONIC CLASSICAL MUSIC: THE HISTORICAL SPECIFICITY OF VISIONS OF MUSICAL COMPOSITION 12

1. Sacralization and Hierarchies of Taste: Aesthetic Value and Musical Composition 13 2. Inventions and Themes: Historicism and the Development of the Classical Canon 16

a. The Classical Music Canon: Development of an Invented Tradition 17 b. Classical Music Practices: Musical Composition and Creativity 21

3. Improvisation and Musical Borrowing by Classical Composers 21 a. Nature and Types of Musical Borrowing 21 b. Borrowing, Improvisation and Commercial Interests 24

B. COMPOSITION AND MUSICAL PRACTICE IN AN AFRICAN AMERICAN TRADITION: CULTURAL ASSUMPTIONS AND MUSICAL AUTHORSHIP 27

1. Creativity in African American Music and Cultural Forms 27 a. Repetition and Revision: Core Features of an African American Aesthetic 28 b. African American Cultural Production and Copyright Standards: Recontextualizing

Hip Hop Musical Practices 29 2. The Social Roles and Social Meanings of Music: Context and Living and Museum

Traditions 31 IV. COPYRIGHT, LIABILITY RULES AND HIP HOP MUSIC 32

A. SAMPLING AS AN ESSENTIAL AND NECESSARY FEATURE OF HIP HOP 32 B. HIP HOP AND THE GOALS OF COPYRIGHT: CONTROL AND COMPENSATION IN MUSICAL

WORKS 33 C. HIP HOP, MUSIC INDUSTRY PRACTICES & COPYRIGHT: MUSICAL BORROWING AND

LIABILITY RULES 35 1. Music Industry Licensing Practices 35 2. Liability Rule Frameworks for Hip Hop Music 36 3. A Hip Hop Sampling Framework 37

V. CONCLUSION 39

2005 LAW & HUMANITIES JUNIOR SCHOLAR WORKSHOP

From J.C. Bach to Hip Hop 1

I. INTRODUCTION

What do Beethoven and Public Enemy have in common? Both have been enormously popular

performers and composers.1 Both are credited with transforming music composition and performance

during their respective times in a fundamental way.2 In addition, both have copied existing works of their

own or others and incorporated such music into their own works,3 thus illustrating continuity with respect

to musical borrowing. The importance of musical borrowing in musical practice remains largely

unreflected in copyright law.

Musical borrowing is a pervasive aspect of musical production in all genres and all periods.

Current copyright structures are based on a vision of musical authorship that is both historically and

culturally specific. Such structures are rooted in a notion of musical practice and authorship that is linked

to the formation of the classical music canon, an invented tradition that had largely emerged by the last

half of the nineteenth century. Copyright legal structures and the classical music canon have relied on a

common vision of musical authorship that embeds Romantic author assumptions. Such assumptions are

based on a vision of musical production as autonomous, independent and in some cases even reflecting

genius. The centrality of the individualistic and autonomous vision of musical authorship to both copyright

law structures and conceptions of the canonic classical music tradition has resulted in a deemphasis of the

importance and continuity of musical borrowing practices generally.

Current copyright structures also reflect a pervasive bias toward features of music that lend

themselves more readily to established forms of musical notation. As a result, such structures reflect an

emphasis derived from the classical music tradition of fidelity to the musical text,4 which has become

predominant in the classical tradition in the period since the formation of the classical music canon in the

late nineteenth century.5 In contrast, other types of musical expression have generally related to musical

texts in a different way. In jazz practice, for example, the musical text, rather than being a final authority

for assessing performance, is to a far greater extent a guide on which a performance might be based.

Improvisation is yet another way in which performance might differ from text. The decline of

improvisation in the classical tradition is similarly connected to Romantic notions of authorship and



fidelity to sacred musical texts that became part of the emerging classical music canon in the nineteenth

century. 6

This paper focuses on the implications of musical borrowing for visions of musical authorship and

copyright law and their application to hip hop and other music that use existing works in their creation.

Part II of this paper looks at the construction of music copyright, focusing on the implications of the vision

of musical authorship inherent in the recent Bridgeport Music hip hop music cases as well as legal

commentary and other cases in the music copyright area.7 Part III focuses on the vision of authorship and

performance in music copyright in historical and cultural context. Part IV discusses potential ways to

incorporate a liability rule based framework for sampling based partly upon existing statutory frameworks

and current musical industry licensing practices.

II. THE CONSTRUCTION OF MUSIC COPYRIGHT: SAMPLING, POSTMODERNITY AND LEGAL VIEWS OF MUSICAL BORROWING

A. Copyright, Music and Technology in the Intangibles Paradigm

Hip hop musical practices have been greatly facilitated by changing technology in music, which

illustrates a recurrent theme in music history more generally. The application of copyright to music has

been tested historically by the introduction of new technologies in musical performance and practice.8

Consequently, the advent and adoption of printing technology,9 the phonograph and player piano,10 radio,11

recorded song media12 and digital music content13 have all presented challenges for copyright regimes in

place at the time such technologies were introduced.14 In the case of music, changing technology has led to

major changes in musical industry organizational structures, which have influenced copyright doctrine.15

Copyright legal structures have in turn had a significant influence on music industry organization and

business structures. In some instances, organizational structures and entities have arisen to enforce legal

rights granted under copyright laws.16

Technological changes since the late twentieth century have profoundly influenced many areas,

including music and copyright.17 Peer-to-peer file sharing reflects the introduction of new technologies of

music dissemination in the digital era.18 Digital technology has significantly influenced music production



as well.19 Changing digital technology has facilitated music borrowing and has helped put hip hop in

particular on a collision course with an expansive copyright framework.20

The conceptual difficulties at times said to characterize copyright are in part a consequence of

changing technologies of dissemination and production and a copyright framework with an increasingly

broad reach.21 They are also a result of greater abstraction with respect to the essence of copyright.22 This

increasing abstraction, which may also be characterized as an increased degree of intangibility, is evident

in the form of derivative rights that cover all “acts of exploitation relating to the protected work.”23

Treatment of hip hop within copyright law should be placed within the context of changing technological

standards, expanding application of copyright doctrine and historically rooted notions of musical

authorship and originality, all of which have significantly influenced musical borrowing and perceptions

of such practices.

B. From Bach v. Longman to Bridgeport Music: Music Copyright and Hip Hop Music

1. The Inexact Fit of Copyright for Music

Copyright statutes were originally enacted for literary property.24 Consequently, how copyright

came to be applied to music is a subject of considerable historical interest.25 The application of literary

copyright to music is also significant in that the literary copyright model has provided an inexact fit for

music in a number of important respects. The engagement of copyright with music reflects an attempt to

adapt copyright to the context of music in a process that has not always been a smooth one.26

Music is not an ideal field in which to apply principles derived from literary copyright. Court

considerations of music tend to limit discussion of to three principal features: melody first and foremost,

and to a lesser extent, harmony and rhythm,27 which largely reflects the historical emphasis of certain

European musical traditions. The Western musical scale essentially has twelve tones from which musical

works may be constructed.28 This means that musical composition choices are necessarily restricted both

by the limited number of tones as well as constraints that emanate musical and cultural conventions in a

way that choices about literary texts are not. In addition, producers of certain types or genres of music

may incorporate similar features. For example, certain general harmonic chord progressions may be



typical of particular music types.29 Music is inherently relational in its construction, which means that the

meaning of a particular note or series of notes from the perspective of harmony depends on the context

within which the notes occur.30 Music is also intrinsically related in some way to performance, which

plays a role in musical practice and which is also a significant distinguishing feature as compared to

reception of other types of cultural production such as literature. Music is also to a greater extent

nonrepresentational as compared with literature, which has implications for the relationship between

copyright and music.31 The restricted nature of the musical scale, limitations from cultural and musical

conventions, existence of music as an art form based on performance and fact that music is

nonrepresentational and a relational system rather than a substantive one are all factors complicating the

ease of translation of literary copyright to the musical context.

From the first application of the Statute of Anne32 to music in the seminal 1777 case Bach v.

Longman,33 to the recent Bridgeport Music cases about hip hop music, courts and commentators have

grappled with how to apply copyright to music.34 The first U.S. copyright statute was enacted in 1790.35

Music became protected under U.S. copyright law in 1831 with the first general revision of the 1790 act.36

Although the broader history of the application of copyright to music will not be a focus of this paper,37

aspects of the cultural history of music and music copyright will be central. Particular emphasis will be

given to the conceptual underpinnings in the application of copyright to musical forms such as hip hop.38

2. Hip Hop as Musical and Cultural Phenomenon

Although hip hop, which just celebrated its thirtieth birthday, emerged from the of African

American and Latino urban, working class and initially largely male youth,39 it has since expanded within

the U.S. and is now the second most popular musical genre, surpassed only by rock and roll,40 and has

become a dominant musical force internationally.41 Hip hop has become increasingly commercial since

the 1980s.42 Domestic U.S. record sales of hip hop music in 2001 were $1.6 billion or 12 percent of total

domestic record sales,43 reaching 13.3 percent of total domestic record sales in 2003.44 Although hip hop

is now a major commercial force, it originated as a range of cultural practices, including rap music, graffiti

and break dancing, in live performance in parks, along New York City blocks and in select clubs.45 In



addition to having broad influence in the music sphere, hip hop has also had a strong cultural influence

globally, as is reflected in fade hair cuts, untied sneakers, conspicuous gold jewelry and baseball caps

worn sideways,46 as well as words introduced into mainstream American English such as dis, def, yo, chill,

wack, blunt and fly.47 Hip hop music is now also mixed in all types of music, including rock, reggae, jazz

and electronica.48

In the short time of its existence as a commercial phenomenon, hip hop has garnered significant

legal attention, particularly surrounding the practice of sampling, which has emerged as an essential core

aspect of hip hop musical production.49 Sampling is “a process in which sound is taken directly from a

recorded medium and transposed onto a new recording.”50 Originally done using vinyl records during live

performances,51 sampling is now accomplished with digital technology.52 Although closely associated

with hip hop music, sampling is actually widespread in the recording industry.53

3. Copyright Doctrine and Hip Hop Music: Situating Hip Hop in Copyright Law

Although hip hop has been discussed extensively by legal commentators,54 much of this dialogue

focuses on hip hop in isolation or with respect to twentieth century postmodern forms of cultural

production.55 Analyses that situate hip hop in isolation as a peculiar form of piracy or as simply a

postmodern art form fail to comprehend fully hip hop as an aesthetic form, both in relation to other

musical forms generally as well as in connection with the African American aesthetic traditions from

which it derives.56 Any consideration of hip hop and copyright must assess hip hop within the broader

scope of music borrowing generally, so as to identify the extent to which practices in the hip hop genre

may not be as atypical as they might seem from a narrower examination. Court cases involving hip hop

reflect the extent to which the aesthetics of genres not based on existing musical notation do not fit

comfortably within the rubric of copyright law assumptions. 57 This same lack of fit, however, is also true

to some extent for the traditions at the core of copyright law assumptions as well, particularly the classical

tradition.

One key aspect of the development of copyright in the United States, particularly from the

nineteenth century onwards, has been an overriding focus on what constitutes sufficient originality to



make a creation copyrightable.58 Although originality is not explicitly included in the Intellectual Property

Clause of the U.S. Constitution,59 the notion of originality as satisfying the Constitutional mandate with

respect to “authors” and their “writings,” is a fundamental assumption of current copyright law.60 It thus

serves as a minimum threshold for copyrightability. As is the case with literary copyright, concepts of

originality in music copyright are full of pervasive assumptions about the nature and manner of artistic

creation that are largely based on an image of a Romantic author. In the music context, Romantic author

discourse highlights a number of features presumed to be the essence or core of true authorship, including

the role of individual and autonomous acts or even genius in the creation of original cultural products.61

Although courts and legal commentators sometimes acknowledge the existence of collaborativity,62 the

full implications of this rarely filter through in the application of copyright doctrine in particular contexts

that actually involve collaboration. Judges have also increasingly incorporated a higher standard for

creativity into the originality and authorship requirements of copyright law generally.63

Within the musical arena, Romantic notions of musical authorship are particularly associated with

composers in the European classical music tradition. Romantic author assumptions are problematic for

forms of music such as hip hop that borrow extensively.64 A clear tension exists surrounding the concept

of originality as applied in copyright law, which highlights the fact that originality is and has historically

been “a highly contested idea in the West.”65 Consequently, although concepts of originality create issues

for types of music not within core European musical traditions, it must be emphasized that such concepts

present problems for such core traditions as well and do not adequately or accurately reflect how musical

production has actually occurred within such traditions.66 Questions about originality are thus in large part

questions about how to represent adequately the process of music production and creation that forms the

basis upon which copyright rules operate.

Copyright protection may cover different aspects of a particular piece of music. Historically,

copyright has attached to the musical composition, which is the notated, written score, including the music

and any lyrics.67 Although this musical work must demonstrate some originality to receive copyright

protect,68 the required amount of originality is not defined statutorily, but is discussed extensively in court



cases. Court cases and commentary do not consistently define what constitutes an original musical work.

One core element that runs across many definitions is that originality requires an independent creation,

which essentially appears to rule out borrowing.69 In addition to a copyright connected to the composition

itself, since 1972, U.S. federal law has recognized recordings as being a distinct expression requiring

separate copyright protection.70 For this reason, hip hop cases usually involve alleged infringements with

respect to two different copyright protected expressions: the recording that is actually sampled and the

musical composition from which the recording derives.71

The application of copyright law to hip hop reflects an evolving doctrine that is by no means

standardized or consistent. The legal standard used to assess improper appropriation or infringement

generally may vary depending upon whether the alleged infringer copied a portion of the work or the

work’s overall structure. Tests of infringement typically involve analysis of the substantial similarity of

the works involved.72 Fragmented literal similarity is the test of substantial similarity in cases where only

a portion of a work is copied, without copying of the work’s overall essence or structure.73 Hip hop cases

tend to involve this type of borrowing. A test of comprehensive nonliteral similarity is the measure

substantial similarity used when comparing works with comprehensive similarity as a whole to both

evaluate whether copying has occurred as well as determine whether such copying constitutes

infringement.74 The distinction between fragmented literal similarity and other measures of substantial

similarity is not necessarily clear.75

A finding of copyright infringement rests on two distinct elements: copying and unlawful

appropriation.76 Although varied terminology is used, the copying element is sometimes also described as

the defendant’s having access to the copied work and the unlawful appropriation element often discussed

as involving a test of substantial similarity.77 Courts have even found copyright liability where access is

not proved, including for subconscious infringement.78 Standards of infringement for a musical

composition and a recording are not necessarily the same, and the Sixth Circuit in its recent Bridgeport

Music ruling, for example, imposed a different standard of infringement for a musical composition and a

sound recording.79



Under current copyright standards, any work that is based on an existing work may be considered

a derivative work of the existing work,80 at least with respect to the portions of the derivative work that

meet the copyright originality standard.81 This conception of a derivative work in copyright is a key

reason why a tension exists in the application of copyright to music forms that use existing works.82 Since

music borrowing is a pervasive feature of musical composition across various traditions and times,83 the

application of the derivative work concept, combined with the emphasis on originality that pervades

copyright law, is potentially problematic when applied to music.

Copyright law gives copyright owners the exclusive right, among others, to reproduce the

copyrighted work and prepare derivative works from the copyrighted work.84 For this reason, the scope of

derivative works is quite important. Although the scope of what is considered a copyrightable derivative

work and where such lines are drawn is not always clear,85 a derivative work of a copyrighted work is

protected by copyright in the same manner as the copyrighted work. This has serious implications for

music forms such as hip hop, which borrow from existing works and may limit the ability of creators of

such forms to receive copyright protection since works they create that might be deemed unauthorized

derivative works of an existing work.86

Current copyright doctrine does, however, permit copying in certain limited instances. An alleged

infringer may be deemed to have not infringed in instances of de minimis copying. Although a clear

standard for de minimis use has not yet been established by courts, courts have applied the de minimis

standard in a number of cases.87 One test used to assess whether a use is de minimis is whether an average

audience would recognize the appropriation.88 In determining when a particular use is de minimis, courts

have tended to look at the amount of use and the extent to which the portion used was central to the

composition from which it was taken.89

In the event that infringement is found by a court, a defendant may assert a fair use defense, which

may serve as a shield against copyright liability when the defendant is deemed to have infringed.90

Current interpretations of fair use, however, generally tend to favor primarily borrowings that are

essentially either parodies or that in some way constitute transformative copying of existing works.91 This



focus on transformative uses results a wide range of outcomes in cases involving use of existing works.92

Factors used by courts to determine whether transformative uses exist include “whether the new work

merely supersedes the objects of the original creation or instead adds something new, with a further

purpose or different character, altering the first with new expression, meaning or message.”93 In addition

to raising serious questions about what constitutes a transformative use and how this might be determined,

this standard privileges certain types of borrowings but results in other types of borrowings being deemed

infringements.94 The notion of transformative use as a primary basis for fair use is also a concept that does

not really translate well from literary copyright to music copyright, particularly given the historical role

that critical commentary, parody and satire have played in literary traditions and the inherent limitations in

using music notes, in particular, in the development of such transformative uses in music. This difference

between music and literature arises in part from the fact that musical notes, in contrast to lyrics, appear to

be non-representational in that they do not involve everyday world phenomena and consequently are more

abstract as well as based on principles often “known explicitly only by initiated practitioners.”95

In addition, the notion that transformative fair use is more acceptable because it involves

borrowings that are somehow more creative than other types of borrowings is based on assumptions about

the nature of copying and creativity that are not sustainable either in light of hip hop practices or the

European classical tradition generally. In both of these traditions, we see instances of borrowing being a

basis for creativity even if the copying of the existing work is not fundamentally transformative. The

notion of what is transformative and what is not is also highly subjective, particularly with regard to

music. This suggests that reconsideration needs to be given both to the categories used to analyze types of

borrowing in the legal arena as well as the fact that copying and creativity are not mutually exclusive. As

a result, assumed dichotomies need to be reexamined in light of actual musical composition practice. Such

reexamination would necessitate recognition that many composers and musicians, from Johann Sebastian

Bach to Georg Friedrich Handel to Pete Townshend to Public Enemy and other hip hop groups have found

founts of creativity in copying, some of which has not necessarily been transformative.



C. Dichotomies and Continuities: Representing the “Other” in Music Copyright Law

Discussions of copyright in legal scholarship and court cases are at least implicitly grounded in

dichotomies applied and used to depict the nature of musical production. Such dichotomies tend to

distinguish actual types of music or musical production from certain ideal types of musical production.96

These ideal types then serve as the basis for making determinations about how to regulate legal

relationships within the musical arena. As a consequence of this focus on distinguishing types of musical

production through assertions of dichotomies, manifest continuities in music production and practice may

be discounted or even ignored. Prominent among such overlooked continuities is the manner in which

musical borrowing has long been and continues to be a widespread and pervasive aspect of musical

production.97

Grand Upright v. Warner Brother Records was the first case to rule on the use of sampling in hip

hop music.98 The discussions of hip hop in Grand Upright and other hip hop cases reveal a disdainful, if

not contemptuous view by judges for the type of musical borrowing involved in hip hop as a genre. This

evaluation of the aesthetic merit of works is certainly not limited to hip hop, although it is at time a

pronounced feature of discussions about hip hop.99 Although Grand Upright is on the negative end of

portrayals of hip hop both in terms of the language used (theft) and the framing of the decision, which

begins by quoting the Seventh Commandment prohibition “Thou Shalt Not Steal,”100 the characterization

of such borrowings as appropriation or even theft forms the basis for a negative view of hip hop as a genre

that effectively distinguishes and isolates hip hop borrowing from other types of borrowing in music.

Even if hip hop borrowing practices are deemed unacceptable in specific instances, they should be

seen in light of a continuity of musical borrowing practices that extend from the earliest days of known

music to the present time.101 Use of dichotomies is central to representations of hip hop and hip hop

musical practices as representative of an “other” and is evident in both legal commentary and the language

of court cases about hip hop. The construction of this “other” implicates historical, political and cultural

assumptions, categories and hierarchies and is underscored by the existence of ideal types of artistic

production based on a conception of Romantic authorship.102 Such legal commentary reflects what might

be termed discourses of difference. Discussions of hip hop at times include a series of explicit



dichotomies within which hip hop is placed and by which hip hop practices are marked and evaluated,

including serious and superficial, original and copied, composition and performance, creative and copied,

transformative and nontransformative, individual and collective, autonomous and collaborative and artistic

and pirated. Also evident, but at times only implicit, in such discussions are dichotomies of elite and

popular, intellectual and entertainment, suburban and inner city, high and low class and white and black.103

The focus on such differences has the potential to distort representations of the music so characterized,104

as well as essentialize the object being considered.105 Views of hip hop reflect the general use of

nineteenth century hierarchies in describing music as is evident in categories of music such as folk music,

popular music, religious music and art music.106 In the case of hip hop, this discourse of difference has

the effect of characterizing and framing hip hop in a particular way that may serve in some way as a

justification for evaluations of hip hop’s aesthetic value that are often part of discussions of hip hop

generally.107

Even those with more positive views of hip hop than Grand Upright often rest their analyses on

many of the same underlying dichotomies as do critics. Such proponents tend to interpret dichotomies in

different ways, placing hip hop, for instance, together with postmodern forms of cultural production as

forms of creation that are appropriative in nature.108 Although self-conscious borrowing may be

characteristic postmodern forms of artistic production,109 views of postmodern production often reflect the

same dichotomy between original and copied material, albeit in the form of transformative as opposed to

nontransformative uses. Such views similarly obscure historical continuities with respect to musical

borrowing and other practices and minimize or ignore the role of borrowing as a characteristic feature of

musical production in different contexts and historical periods.

Recognition of the importance of borrowing has been obscured by Romantic author conceptions of

musical composition embedded in copyright doctrine that became predominant at a particular historical

junction in relation to high culture forms of cultural production such as classical music.110 The

implications of this historically specific view of composition are quite significant, both with respect to



classical music itself, as well as with regard to other forms of cultural production that are also evaluated in

light of this same model.

Dichotomies and discourses of difference are also combined with hierarchies that essentially rank

different types of musical production as well as different types of borrowing. As a result, classical music

lies at the apex of a musical hierarchy at which hip hop is most certainly at or near the bottom.111

Similarly certain types of borrowings, particularly transformative borrowings, are more acceptable than

others. This represents a fundamentally flawed vision of music and the nature of musical authorship that

creates problems not just with regard to hip hop, but which collides particularly forcefully with the

aesthetic values and musical practices inherent in hip hop.

The framing of discourse about hip hop is important because copyright reflects and projects

cultural assumptions with respect to appropriate aesthetics of cultural production. Copyright is thus not

only shaped by conceptions of authorship but is also a powerful force in melding notions of authorship and

delineating appropriate and inappropriate methods of artistic production. As a consequence, what is

characterized as unacceptable copying within copyright law can play a critical role in determining what

types of cultural production may occur.112

Current conceptions of authorship assume a dichotomy between copying and creativity and that

copying or borrowing is somehow inimical to creativity and innovation. By focusing upon a dichotomy

between originality and copying, such views of musical authorship fail to recognize that the use of existing

works for new creations can be an important source of innovation. Examination of the historical

development of conceptions of musical composition sheds light on the manner and nature of their

construction.

III. MUSICAL COMPOSITION AND MUSICAL BORROWING: MUSICAL AUTHORSHIP IN HISTORICAL AND CULTURAL PERSPECTIVE

A. Canonic Classical Music: The Historical Specificity of Visions of Musical Composition

Hip hop is often discussed in legal discourse as an example of a form of musical production based

on appropriation.113 Implicit and at times even explicit in such discussions is a comparison to other



models of cultural production that are assumed to fit within Romantic author concepts.114 Romantic author

notions of musical composition have become implicit assumptions in the construction of musical

authorship and how we engage in the experience of music.115 Such concepts have influenced notions of

canonicity.116 Furthermore, the notion of originality that has been a core aspect of copyright debates from

the eighteenth century onwards was also a key aspect of discussions about musical composition in the

eighteenth and nineteenth centuries. Notions of originality also played an important role in the process by

which the pieces comprising the classical music canon were identified, distinguished and emulated by

composers who created music after the formation of the canon and who sought to add their works to the

existing canon.

As was the case in literature, the distinction between genius and craftsmanship was a key aspect of

formulations of musical authorship,117 a distinction that is still evident today, for example, in discussions

of whether hip hop should be considered music.118 This vision of musical and other authorship based upon

notions of creativity, invention, originality and even genius, is reflected in the formation in the United

States of hierarchies of cultural forms as well as the development of a pervasive discourse in copyright

doctrine concerning originality that construes borrowing as reflective of a lack of originality.119 Such

notions of independence, autonomy and genius in artistic production obscure the reality of their social

construction.120

1. Sacralization and Hierarchies of Taste: Aesthetic Value and Musical Composition

Although copyright laws existed and were initially applied to music in Britain in the eighteenth

century as a result of the Bach v. Longman case, the nineteenth century is an important time period for the

development of both intellectual property structures such as copyright, as well as refinement of the

underlying rationales for such structures. The development of truly modern copyright frameworks may be

traced back to the first half of the nineteenth century.121 Concurrent with the development of these modern

frameworks, cultural hierarchies began to develop in the United States with respect to forms of cultural

production such as music, literature and museums. Historian Lawrence Levine highlights the process of

what he terms “sacralization,” which entailed the separation of elite culture from popular culture and the



creation of sacred authors whose works could not be abridged or altered and whose works should be

performed in worship-like settings in which audience participation was not permitted.122 This process of

sacralization and development of rankings of cultural production contributed to what may described as

hierarchies of taste, or rankings of forms of cultural production according to their deemed aesthetic

value.123 Hierarchies of taste influenced the formation, development and operation of intellectual property

frameworks.124

Hierarchies of taste were marked in the musical arena, where the “process of sacralization

endowed the music it focused upon with unique aesthetic and spiritual properties that rendered it inviolate,

exclusive, and eternal.”125 This reflected a significant change in views of composers, particularly since

prior to the nineteenth century composers’ names were not always included in programs.126 One

consequence of sacralization in music was thus to enhance composers’ prestige through a process akin to

deification.127

Although such sacralization and hierarchies depicted ideal types, they nonetheless became a

significant cultural force.128 The power of such hierarchies ultimately rested in their function in

legitimating social hierarchy,129 and thus marginalizing “the voices of all musicians who stand outside of

the canon, representing those who stand at the margins of social power.”130 These hierarchies are

intimately and inescapably intertwined with notions of authorship upon which copyright laws are also

based.131 Sacralization and the formation of hierarchies of taste suggest that notions of authorship that

currently pervade copyright law are both historically and culturally specific.132 They are historically

specific in that they emerged at a particular historical context and served to project and reinforce cultural

norms developing or established in that context and were then applied to reinterpret the nature of present

and past artistic production. In addition, such notions of musical authorship are culturally specific in that

they are not broadly applicable and were initially applied in their most idealized form to certain particular

types of cultural production that fell at the top of such hierarchies. Lying not far beneath the surface of

categories of sacralized cultural forms is the complex issue of musical borrowing or the use of existing

works in music more generally.133



Although cultural production forms categorized as postmodern do typically engage in borrowing

as an important aspect of the manner of production, the use of existing works in the musical arena is by no

means limited to hip hop or postmodern forms of production that use extensive borrowing. Rather, such

uses of existing works have historically been core features of the musical composition process.134 The fact

that borrowing and other uses of existing music were characteristic in the classical music tradition is often

not noted or discussed in any detail, at least in legal discourse,135 although it is a focus of discussion in

musicology.136

Sacralization and the vision of authorship inherent in discussions of musical composition obscure

the processes by which music has actually been produced historically and replaces them with an idealized

view of sacred works reflecting the operation of individual composers some of whom demonstrate genius

but most of whom operate autonomously and individually in the creation of musical works.137 That is not

to say that the idealized view is utterly without validity, but to bring attention to the fact that it presents a

highly distorted and incomplete picture.

The classical music category is important because is the source of implicit comparisons in

discussions of hip hop and other music. At times, such comparisons are made explicit, as is evident in

court cases that appeal to the authority of sacred authors and composers.138 It has also had a powerful

influence in shaping broader cultural ideas about musical authorship. Understanding how the classical

tradition and traditions that model themselves after the classical tradition are constituted can shed light on

the assumptions upon which both the classical tradition and views of musical authorship rest. Not

surprisingly, music forms seeking to establish canons in the twentieth century have modeled themselves

after the nineteenth century classical tradition.

The ascension of jazz in the twentieth century reveals something of both the sacralization inherent

in Romantic author processes and the operation of hierarchies of taste.139 Borrowing from the classical

model, jazz has effectively achieved a status in the U.S. of the sort formerly associated with the classical

tradition based on similar strategies to those used in the invention of the classical tradition.140

Consequently, the establishment of the jazz canon also reveals some of the tensions inherent in the process



of institutionalization of elite music forms.141 In the process of its ascension, the jazz tradition came to be

characterized in a way that emphasized “individualism rather than collectivism [and] autonomous

statements rather than dialogue and collaboration.”142 Discourse associated with establishing jazz in the

model of the classical tradition also blurred “its variety and its debt to the collective struggles of African-

Americans, and [effaced] the fact that jazz has long flourished outside of the United States.”143 Much like

the jazz canon, the Broadway canon aspires to the same standards as the classical music canon.144

Creators of hip hop music are clearly caught at the bottom of a number of hierarchies of taste,

including those in relation to race or ethnicity, class and age.145 The characteristics of hip hop in terms of

its composition, construction and broader social context make it virtually impossible to fit hip hop within

the autonomous Romantic author model of musical production associated with the classical music

tradition.146

2. Inventions and Themes: Historicism and the Development of the Classical Canon

The status of as hip hop in the twentieth century reflects the operation of hierarchies of taste and a

sacralization process that became widespread by the end of the nineteenth century.147 The nineteenth

century was a particularly rich time for the development of sacralized cultural forms that served to define

and delineate emerging hierarchies of taste. The social context of the late nineteenth century played an

important role, and the sacralization process in the United States took place within a broader context

within which high culture forms were increasingly separated from the broader culture, development of a

middle class who wanted to emulate upper classes and increased industrialization and importance of mass

produced goods.148

The development of such hierarchies is noteworthy for several reasons. First and foremost, such

hierarchical categories functioned to segregate certain types of cultural production at the apex of

hierarchies of cultural forms, and as such, demonstrate how aesthetic rankings of cultural forms derived

from social distinctions.149 Secondly, the sacralization process had significant implications for the

relationship of music and audience in that audiences were now expected to passively receive classical

music and other elite forms of cultural production with silence and without participation.150 The



experience of the music listener was thus also “regarded as an individual one.”151 Audiences prior to this

time in opera and public concerts behaved in a similar fashion to audiences today at popular music

concerts.152 Finally, the sacralization process also influenced the semiotic value and signifying power of

music. Examining the construction of the sacralized classical music sphere can shed light on the

implications for copyright law of classical music as a sacralized category. Such an examination should

begin with an awareness of the category of classical music as a constructed grouping of music and

composers that emerged at a particular point in time historically.

a. The Classical Music Canon: Development of an Invented Tradition

The classical music tradition as generally conceived today is a decontextualized museum tradition

that in most respects is no longer a living musical tradition.153 Aside from religious music, which did have

classical tradition prior to the eighteenth century, European music did not have a “learned, classical

tradition comparable to that of literature and the fine arts.”154 Production of musical works was oriented to

the immediate present.155 As a result, music and music audiences were intermingled, producing a lack of

clear delineation between high and low culture musical forms prior to the last half of the nineteenth

century.156

The classical music category is as a consequence an invented tradition that arose partially through

hierarchies of taste. 157 The rise of a classical tradition in music has been attributed to the “simultaneous

collapse of the patronal tradition and the rise of the printing industry.”158 In addition to being the time

period during which hierarchies of taste emerged in force, the late nineteenth century was also a fertile

time for the development of invented traditions.159 The corpus of the invented classical music tradition

was largely assembled during the latter half of the nineteenth century.160

The invention of the classical music tradition as comprised of museum pieces was at least partially

a function of the development of commercial interests with respect to music and the emergence of early

forms of musical mass culture. The rise of the secular deity masters of classical music in the 1850s and

1860s is associated with the evolution of European mass culture from 1770 to 1870, particularly the

growth of the printing industry.161 The typical listing of the members of the cannon “begins with Bach and



Handel in the eighteenth century and continues through Schoenberg and Stravinsky in the twentieth.”162

Although most American music is excluded from the canon, a number of pieces have been admitted.163

During the nineteenth century, the changing relationship between composer and audience that

characterized the operation of hierarchies of taste was reflected in the development of a classical music

concert hall tradition that served “primarily [as] a museum for the display of works of art from previous

generations.”164 This shift is evident in concert programs, where the works of dead composers came to

characterize concert life in Europe,165 where by the 1860s, some 30 to 40 percent of concert works were by

living composers, as compared to some 60 to 70 percent in the late eighteenth century.166 In fact, by the

1870s, new music in concert life was looked upon with suspicion.167

A number of factors have been proposed to explain why this shift occurred, including the advent

of the mass music market fostered by virtuosi composers and performers of the early nineteenth century

such as Liszt and Paganini,168 whose success was at least partly based on the market for sheet music.169

The development of this mass music market directly related to copyright. 170 The virtuosi and increasing

influence of the mass market also had implications for the institutional structure of classical music

performance and led to the development of a “new profession of concert managers” and the transformation

of “recitals into internationally managed, large-scale events,”171 and eventually orchestras playing in dance

halls and after 1850 in formal orchestral concert halls.172 This transformation is the root of the

professionalism of performance that in the contemporary context has been characterized as widening the

distance between audience and performer.173

The development of the classical museum tradition has serious implications for the production of

music: “[j]ust as the experience of music as a listener was regarded as an individual one, so each composer

was considered to speak with an individual voice.”174 This individualistic model focused on the creation

of “musical works of lasting value,”175 which was a departure from the practices of the masters, who had

actually sought to “create music which had current value, however ephemeral: providing music for a

specific function, whether that be ceremony, worship, public entertainment, dancing, or amateur music-

making.”176 As part of the development of the museum tradition, the rediscovery of works of past time



periods increasingly became the source of new music.177 The predominant notions of musical composition

in the invented classical music tradition thus came to echo the Romantic author conception upon which

emerging copyright structures were also based.

The recent emphasis on historically accurate performances, particularly of early music, is a

contemporary example of both the invention of a musical tradition as well as the dominant historist

discourse that has come to characterize discussions of the classical canon.178 This historicism is reflected

in “the understanding that the past has become alien to us and the desire to recapture what is slipping

away.”179 Consequently, the quest for authenticity in music performance, much like the construction of

the classical invented tradition, is in many respects much more a commentary on the sociocultural system

in which an emphasis on authenticity arises than it is about the original context to which concerns about

authenticity relate.180 Not surprisingly, the current emphasis on authenticity in performance of Baroque

music only extends so far and excludes from the requisite authenticity certain aspects of Baroque

performance that fall outside current conceptions of classical music practice, particularly those relating to

improvisation, which was an important feature of Baroque music performance.181

The museum tradition had significant implications for the production of music as well as the social

context within which music was performed and operated. The thread of a tradition that was collaborative

was transformed and “both emulation and renewal acquired a new character during the transformation of

the concert hall into a museum.”182 Young composers in the post-museum era and surrounded by museum

thus came to focus on developing distinctive person styles in order to create works that could merit a

showing in the music museum.183 They thus modeled their activities based upon what “they perceived

composers of previous eras to have done,” while ignoring the goal of such composers to create music with

current value for an audience.184 Consequently, progressivism, which focused attention on and fostered

continuation of the assumed forward progress of music, was closely intertwined with increasingly hidden

emulation, which caused composers of new music to model their works after the masters of the past but to

do so in an increasingly elusive and esoteric fashion.185 Progressivism may also be seen as a quest for

novelty in music, which touches upon conceptions of originality.186



The development of the classical music museum tradition has significant implications for

copyright in a number of ways. Most importantly, many contemporary conceptions about how musical

production occurs are at least implicitly based on a model of individual and autonomous production that is

also at the core of post-museum perceptions about how music production should occur.187 This model is

not an accurate representation of how musical production actually occurred even with respect to works

produced in much of what is now termed the classical music tradition.188 The invention of the classical

tradition also has significant implications for the social role of music. As a result of the twin processes of

progressivism and emulation that were complementary sides of the historicist mainstream in classical

music,189 classical music has become increasingly esoteric since the invention of the classical tradition.190

Consequently, the relationship between audience and composer has changed significantly as has the nature

of the audience, which no longer reflects the intermingling typical of musical life prior to the latter half of

the nineteenth century.191 A final aspect of the museum tradition that is important relates to signification

or meaning. The classical museum tradition involves significant degree of decontextualization, in that

“specific significations of the music” are flattened out into “neutralized cultural monuments.”192 This

decontextualization has had significant financial implications for the classical recording industry, for

example, since the recordings of new versions of classical standards may be impeded significantly by the

existence of past classic performances and limited latitude for change in new recordings since classical

music performance is restricted by conventions that emphasize fidelity to text.193

The classical museum tradition also has implications for assumed dichotomies and characteristics

attributed to hip hop and other forms of non-classical music. The notions of musical authorship at the core

of the invented classical tradition became predominant as the classical tradition ceased to be an active

tradition to which works were being added in any large number. In addition, the shift in contexts of

musical meaning means that how listeners relate to music may have changed, partly because the classical

tradition is not an active one, but also a consequence of the decontextualization of a museum tradition,

which means that audiences today may know little about the actual social context within which classical

music they might hear in a concert was actually developed. Characteristic practices within the classical



tradition actually point toward continuity in artistic production with respect to borrowing as compared

with certain postmodern forms such as hip hop.

The view of artistic creation as a product of independent autonomous acts of origination is well

suited to a museum tradition where copying and borrowing are necessarily limited by virtue of the fact that

new music is rarely being added to the canon. After the development of the canon, the reverence and

sacralization of past creations led to a form of historicism that placed prior works in a category of those

that cannot and should not be altered,194 which had significant implications for the reality of musical

production that did not actually reflect these notions of creation.

b. Classical Music Practices: Musical Composition and Creativity

Views of musical composition as individualistic and autonomous fail to take adequate note of the

centrality of borrowing in the creative processes of many composers throughout music history as well as

an aesthetic underpinning to the compositional practice of individual composers, some more than others,

as well as particular musical traditions and genres. Transformation of the classical tradition from a living

tradition to a museum tradition has made sustaining a individualistic, autonomous or genius model of

musical composition much easier. Taking this model and applying it to living traditions today is more

problematic. The vision of classical music authorship under the invented tradition is in serious friction

with actual practices of classical composers, many of whom made extensive use of existing works.

Comparing actual practices evident, particularly during the pre-museum period, can demonstrate

the extent to which the Romantic view of the sacred musical author has skewed visions of musical

composition. In looking at historical context, the power of dichotomies may be undermined, since many

dichotomies expressed in distinguishing classical music from other types of music such as those relating to

improvisation and borrowing, are at best misleading.

3. Improvisation and Musical Borrowing by Classical Composers

a. Nature and Types of Musical Borrowing

Classical music composers often recycled themes, motifs and segments of prior works.195 Musical

borrowings have been studied by musicologists for over a century.196 Discourse concerning classical



music does not always recognize the “context of a long tradition of musical borrowing” in classical

music.197 The nature of borrowing in the classical tradition was varied in many respects. Some composers

borrowed more than others. In addition, the range of types of borrowings varied immensely, from overt

and clear borrowings that copied existing music, to more elusive and hidden quotations or suggestions of

existing pieces in the later work that borrows.

The tension between visions of musical composition and actual practice is most evident in

discussions of the uses of existing music by George Frederick Handel.198 Handel used existing works of

others extensively in his musical compositions, which by the early nineteenth century had engendered

significant discussion as to whether Handel should be considered a plagiarist.199 The debate about Handel

became more pronounced in the late eighteenth and early nineteenth centuries as changing views of

originality became more evident.200 In addition to borrowing from others, Handel similarly borrowed from

himself numerous times.201 Although Handel may have been at one end of the scale in terms of his use of

existing music,202 such practices were by no means atypical among canonical classical composers.203

Tracing the influences and borrowings is easier in the case of certain composers, including Beethoven,

Brahms and Elgar,204 than is true with respect to others, such as Chopin and Debussy.205 This underscores

the fact that different composers may have divergent approaches toward musical production and derive

inspiration to create innovative works from different sources. Musicologists use a number of terms to

describe composers’ uses of existing works, including borrowing, self-borrowing, transformative

imitation, quotation, modeling, emulation, recomposition, influence and indebtedness. The variety and

breadth of such terminology gives a good indication of the widespread nature of borrowing in the

European classical tradition.206 Such borrowing includes a range of practices from verbatim copying of

musical phrases to uses of existing works that involve some level of influence of allusion to prior works.

Handel was by no means the only classical composer to base compositions on uses of existing

works.207 Johann Sebastian Bach, for example, in addition to borrowing from other family members,208

practiced extensive self-borrowing,209 as well as borrowing from composers such as Telemann,

Frescobaldi and Albinoni.210 Bach’s transcriptions of Italian and German concerti for keyboard are



“regarded as an important early stage” in his process of assimilation of Vivaldi’s principles of concerto

form.211 Bach, thus altered, arranged and developed both his own work and works of other composers.212

J.S. Bach’s son, C.P.E. Bach, borrowed extensively from his father and Telemann during his tenure as

music director in Hamburg.213 Mozart’s fugal Gigue for Piano (K 574) was influenced by Haydn’s Quartet

in C Major, op. 20, no. 2.214 Mozart also converted J.C. Bach sonatas into concertos.215 In the nineteenth

century, Gounod, adapted the first Prelude from J.S. Bach’s Well-Tempered Clavier into a version of the

Ave Maria.216

Beethoven frequently reworked existing music, and in fact reworked existing music in more than a

third of his compositions.217 Beethoven also borrowed from other composers, including Cherubini and

Clementi.218 Schubert,219 Richard Strauss220 and Mahler,221 among others, also practiced self-borrowing.

Debussy’s opera Pelleas and Melisande was strongly influenced by Wagner’s opera Tristan and Isolde.222

Wagner borrowed extensively from other composers and was also borrowed from a great deal.223 Rossini

was frequently parodied.224 Schubert borrowed from Beethoven, particularly in the early part of his

career,225 as well as Mozart.226 Brahms, who has been described as a master of allusion,227 composed

pieces that demonstrate an influence from Beethoven and Chopin.228 Brahms also composed Variations on

a Theme from Haydn, which borrow from a theme attributed to Haydn.229 Mendelssohn’s early works

emulated certain aspects of Beethoven’s later works.230

In the twentieth century, Charles Ives made extensive used of borrowed materials that included

hymns, songs, ragtime, college songs and patriotic songs.231 Bartok, Grieg, Glinka, Kodály, Vaughan

Williams, Falla and Moussorgsky were enormously influenced by folk music232 and Richard Strauss by

Liszt.233 Gershwin borrowed from blues, Villa-Lobos from Brazilian popular music and Schoenberg and

Bernstein from Jewish scales and motifs.234 Schoenberg, Stravinsky and Webern composed works that

were recompositions of existing works imposing a new, post-tonal music structure on an existing tonal

model.235 Similarly, Alban Berg borrowed in the final adagio of his Violin Concerto, a chorale from J.S.

Bach, incorporating the Bach choral into his 12-tone model.236 Wuorinen’s 1988 piece Machault mon

chou borrowed material from a fourteenth century mass by Guillaume de Machault,237 Respighi’s The



Birds borrows “almost note-for-note from keyboard pieces from the seventeenth and eighteenth

centuries,”238 Mahler borrowed from his Songs of the Wayfarer for his Symphony No. 1,239 while Aaron

Copland’s Symphony No. 3 was partially based on his Fanfare for the Common Man.240 Shostakovich

quotes from the Rossini opera William Tell in his Symphony No. 15 from 1971,241 while Rachmaninoff

borrowed a theme from Paganini and Puccini from the Star-Spangled Banner and Japanese music for his

opera Madama Butterfly.242

The classical music canon thus offers numerous examples of borrowings and uses of existing

music. The pervasiveness of such borrowings has been at least partially obscured by the process of

creation of the classical canon, which was at least partly a function of the development of commercial

interests.

b. Borrowing, Improvisation and Commercial Interests

The influence of commercial interests is another important factor in the creation of the classical

museum tradition.243 The development of the classical tradition highlights the continuing reciprocal

relationship between commercial interests and copyright.244 The classical invented tradition arose in part

as a result of the mass market for sheet music. As a result, it represents an early prominent example of the

influence of commercial interests on copyright law.245 Just as Beethoven was a prominent advocate of

copyright law as a mechanism for obtaining a legal market, commercial interests have been a significant

force in the adoption of copyright legal regimes in music for their benefit.

The development of international copyright systems also reflects such interests.246 Commercial

interests played a role in how the U.S. engaged in international copyright systems that were developed by

the end of the nineteenth century. United States publishers, who operated in much of the nineteenth

century at a net loss with respect to the import and export of cultural products, did not “embrace reciprocal

arrangements with foreign publishers” at the time of the Berne Convention in 1886.247 U.S. dominance in

popular music began following the birth of Tin Pan Alley in the 1880s.248 As U.S. popular music became

a more important force internationally, U.S. music publishers began to focus on obtaining legal

protection.249



Although the protection and advancement of commercial interests has been a key aspect of

expanding copyright law protection, the legal regimes that have been adopted in response to such

commercial pressures and concerns have had potentially deleterious consequences in the long run for the

creation of music. The promotion of Romantic author inspired sacralized musical masters in the

nineteenth century was one aspect of the development of both musical mass culture and music copyright

protection. This conception of authorship has, however, been significantly harmful to the creation of

future music in that borrowing and changing past music, which have long been an intrinsic and important

part of musical production, are essentially no longer seen as legitimate methods of creativity under this

new worldview.

Such views of authorship highlight the fundamental tension between varying conceptions of

authorship and originality that have formed essential elements of discourse about how copyright should

apply to music that became prominent in the nineteenth century, but which reflect more longstanding

tensions.250 One view of authorship and originality based on Romantic authorship conceptions has been

used to promote commercial interests that could be advanced through the expansion of copyright

protection. Such commercial interests were evident in the nineteenth and early twentieth centuries during

the time that the classical canon and modern music copyright frameworks were both being formed.

During that time, such interests were associated with the development of copyright frameworks that

increasingly perceived and consequently represented borrowing as inappropriate and indicative of a lack of

originality. Such views of borrowing, however, are distinguishable from musical practice, which has

consistently been grounded upon a variety of types of borrowing and collaborativity.

As a result, hip hop is not the only form of music that might encounter problems with respect to

contemporary copyright standards. Current copyright standards would also present problems if applied to

typical musical borrowings in the classical tradition.251 Contemporary views of authorship within

copyright frameworks would suggest that compositional techniques that use borrowing are antithetical to

originality.252 Self-borrowing, even of style, may also present a potential problem under current copyright

standards.253 This focus on originality and discouragement of borrowing is a fairly recently historical



development that was solidified by the end of the nineteenth century, but which was not the dominant

view in music long prior to that time.254 Such views were not universally held, however, and even as late

as the first half of the eighteenth century when an older conception of creativity existed in which

“borrowing was not only acceptable, but in fact was a preferred method of composition.”255 This theory of

imitation thrived from the Renaissance to the eighteenth century in literature, the visual arts and music.256

Borrowing in such contexts might have occurred for a number of reasons from a young composer

learning his or her craft to use of borrowing as a part of a composer’s standard compositional practice. 257

For example, “[f]or the young [Johann Sebastian] Bach, arranging other composers’ works was a means of

analyzing and coming to terms with the various musical traditions that he was attempting to assimilate.”258

Similarly, Monteverdi’s early music exposes its indebtedness to other works more openly than do his later

pieces.259 Others might borrow to pay homage or acknowledge an important musical influence.260

The existence of borrowing is obscured in legal commentary by the pervasiveness of the vision of

authorship and originality that is now so dominant in copyright law doctrine and discourse. The classical

cannon also obscures other aspects of musical practice. The reverence of the past can also play an

important role in shaping actual practice. This is evident in the fate of improvisation in the classical music

tradition following the development of the canon. Improvisation remained and “indispensable ability for

most professional musicians” well into the nineteenth century,261 but was greatly diminished by the

development of the classical canon.262 Thus, although improvisation was largely eliminated from the

European classical tradition by the early twentieth century,263 it was an important factor in classical music

prior to that time. 264

Since the establishment of the canon, attitudes towards improvisation have changed drastically.265

This is likely a consequence of sacralization and the reverence given music of the past in the canonized

classical tradition.266 The decline of improvisation in the classical tradition and emphasis on autonomous

authorial composition have both served to minimize innovation in performance of existing music and

separate musical composition from meaning and understanding associated with musical production and



performance.267 Improvisation demonstrates clearly that views of musical production and authorship can

and have shaped actual musical practice.

The variety of compositional practices in the classical tradition and the extensive use of borrowing

and improvisation in this tradition, have enormous implications for views of contemporary musical

composition and copyright. Looking at the classical tradition highlights the fact that even on its own

terms, contemporary views of originality, creativity and musical authorship are both historically specific

and often not accurate reflections of how compositional practice actually occurred even within the

classical music tradition that has so relied on such autonomous conceptions of musical production.268

Recontextualizing the classical tradition in light of actual practice highlights the ways in which borrowing

can be a source of innovation. Such recontextualization should also involve looking at the cultural impact

of visions of authorship, for in addition to being historically specific, the construction of copyright and the

classical music invented tradition have both been highly culturally specific. 269

B. Composition and Musical Practice in an African American Tradition: Cultural Assumptions and Musical Authorship

1. Creativity in African American Music and Cultural Forms

Hip hop, like other musical traditions in the U.S. such as blues, rags, jazz and rock, derives from

or demonstrates a strong influence from African traditions brought to the new world with African

slaves.270 How copyright can and should engage with forms of musical production that exist at least

partially outside the mainstream of the European classical musical tradition remains a critical question for

hip hop. The first step in any such engagement should be recognition of the historical specificity of

notions of musical authorship and the fact that such conceptions do not even apply to the European

tradition as actually practiced as opposed notions about such practice. It should come as no surprise that

such views are also culturally specific and not easily applicable to musical forms such as hip hop.

Aesthetic features in hip hop and the social context within which it operates have served to place

hip hop at the bottom of hierarchies of taste. Hip hop derives from African musical practices.271 Among

the aesthetic features associated with hip hop are intensive borrowing, which contradicts contemporary

perceptions of composition that see borrowing as necessarily signaling a lack of originality.272 Intensive



borrowing in hip hop is evident in sampling, which is an indispensable aspect of hip hop musical

composition and practice that is closely connected to other aesthetic traditions evident in the African

diaspora in which available media, texts and contexts are selected for use in performance.273 Other

aesthetic features of hip hop that influence its evaluation include the dominance of the oral tradition as

evident in the practice of rapping,274 and greater emphasis on rhythmic density and polyrhythm with less

emphasis of melodic and harmonic structures,275 which are more typically characteristic of the European

classical tradition in general.276 These differences are really a matter of intensity of degree rather than

differences in kind. Consequently, polyrhythm, for example, although more typical in African and African

derived music, is not unheard in European musical traditions.277 Understanding the core features of this

African American cultural aesthetic can clarify where hip hop falls along a number of continuums relating

to music and how hip hop fits within the context of these broader aesthetic traditions.

a. Repetition and Revision: Core Features of an African American Aesthetic

In his exploration of the relationship between African and African American vernacular traditions

and literature, Henry Louis Gates emphasizes the importance of Signifyin(g) as a double-voiced rhetorical

principle in African American vernacular discourse.278 Signifyin(g), which involves both “parodic

narration and the hidden, or internal polemic, ”279 and which is based on an aesthetic of repetition and

revision, 280 has been characterized as fundamental to African American artistic forms, including painting,

sculpture, music and language use.281 Representing a complex of African American forms of discourse,282

Signifyin(g) is thus a complex rhetorical device that serves as “a metaphor for textual revision.”283

Hip hop represents a continuation of syncretic African-derived musical traditions.284 The

fragmentation in sampling and reassembly in hip hop music works has been characterized as reflective of

this historical and cultural experience.285 As a result, examination of hip hop from the perspective of

copyright law must properly situate hip hop as an example of African American postmodern expressive

culture and properly contextualize hip hop musical practices in light of this location.286 An important part

of situating hip hop in this light would require recognition of the hierarchies of taste that often at least

implicitly color considerations of hip hop.



b. African American Cultural Production and Copyright Standards: Recontextualizing Hip Hop Musical Practices

Signifyin(g) entails a confrontation between parallel discursive universes on a linguistic level that

enacts and recapitulates the historical confrontation between African Americans and the broader American

culture.287 The conflict between hip hop aesthetics and musical production practices and current copyright

frameworks reflects elements of this confrontation. Court cases and legal commentary on hip hop do not

adequately situate hip hop in two respects: the relationship of hip hop in the broader historical context of

musical practices such as borrowing generally as well as the specific features of hip hop musical practice

in light of their sociocultural context and origin. This entails understanding copying and repetition within

the hip hop tradition as reflective of a particular African derived cultural aesthetic in which repetition and

borrowing are not only valued, but are also a major source of innovation.288 This would also entail

recognizing innovation in borrowing across varied musical traditions, including the classical European one

as well as the continuing relevance of representations of musical traditions and practices more generally.

As a result of the standards emphasized through such representations, for example, repetition is largely

disfavored in the European classical tradition and even clear instances of repetition demanded by

composers are actually ignored in modern performance practice.289 This disapprobation for repetition has

implications for the framing of discourse about forms of cultural expression that use existing works in

their creation.

In addition to framing hip hop in light of its historical placement and sociocultural origins,

treatment of specific features of hip hop should also be modified. Reflecting a bias towards aspects of

musical expression that lend themselves to notation, in analyzing infringement, copyright cases tend for

largely focus on melody in particular, and to a far lesser extent on harmony and what some courts refer to

as rhythm.290 The ways in which courts focus on these three elements in musical compositions

underscores the cultural specificity of notions of musical composition and practice embedded in

discussions of music and copyright.291 Further, the usual focus on melody or specific notes in a melodic

line also obscures the relational aspects of music harmonically and the fact that notes and pitches do not

necessarily have a fixed meaning or significance, but are highly context dependent.292 The limited musical



elements considered by courts means that even within existing copyright standards, forms of music such as

hip hop are not really viewed in their entirety based upon characteristics within such music.293 Rather,

specific features of such music, typically relating largely to melody, are extracted and used to determine

infringement. Even within existing standards, this represents a distorted lens through which hip hop music

is often viewed.

Court cases and other legal analyses of hip hop also pay insufficient attention to or seriously

misconstrue the nature of rhythm. This is in part due to the emphasis in copyright law on notated aspects

of music, which presents problems with respect to rhythm for varied types of music.294 The reduction to

rhythm to a matter of time signature or meter, generally inattention to rhythmic complexities in hip hop

music and view that rhythm cannot be original,295 further diminish the importance of other dominant

characteristics of African derived music, including more complex rhythmic structures and polyrhythms.

Legal commentary on music tends to consider rhythm to be the equivalent of time signature or meter. This

is reflected in both court cases and legal commentary about music.296 Time signature is one way in which

the meter of a musical piece may be indicated,297 but is by no means necessarily equivalent to rhythm.

Views of rhythm are important in considering hip hop music, in large part because rhythmic

structures in hip hop music can involve syncopation or polyrhythmic elements, which means that

consideration of meter alone will not adequately function in assessing hip hop music.298 Further, hip hop

music often involves complex rhythmic elements. In the case of the Public Enemy song Fight the Power,

for example, the bass line involves what can be seen as a syncopated or polyrhythmic pattern.299

In a tradition such as hip hop, in which orality and linguistic play are key elements,300 focusing on

melody and harmony in legal considerations of hip hop is unlikely to result in a comprehensive

examination of the allegedly infringing work. Other than in cases of overt parodies, courts also rarely look

at the text that accompanies the music in any comprehensive way in making determinations of

infringement.301 Given the role and significance of Signifyin(g) in hip hop and other African derived

aesthetics, inattention to text means that a major source of creativity in hip hop musical production is



ignored. The importance of text is reflected more specifically in hip hop in terms of the complex and

interlinked relationship between music and text in hip hop, including with respect to rhythmic elements.302

2. The Social Roles and Social Meanings of Music: Context and Living and Museum Traditions

Context and meaning are key elements to be considered in assessing the engagement of hip hop

with copyright law. Through legal consideration of sampling, hip hop, which arises from a tradition in

which intertextuality is an important aspect, is confronted with a tradition of copyright law that is based on

decontextualization. This decontextualization is most evident in perceptions about how music is created

and the focus in copyright law on individual, autonomous authors who are largely independent of

historical or any other context. Recontextualizing hip hop within copyright law would entail looking at

hip hop in its totality rather than from the perspective of specific individual features such as melody,

which do not adequately encompass hip hop in its entirety.

In addition, the context of meaning in performance in the classical tradition has changed

significantly since the time when the classical tradition was a living tradition and was not so divorced from

social context.303 Prior to the development of the classical museum tradition, music performance was

associated with specific events in peoples’ lives: marriages, funerals, name days and Saints’ days, for

example.304 The relationship underlying the event of music performance was often more important than

music itself.305

Context in musical performance often implicates meaning. The classical music milieu in which

borrowing was a core feature had significance for the meaning that audiences derived from performances.

Similarly, in the hip hop context, audiences often derive meaning both from the rapped lyrics as well as

the sampled and other elements of the music. Hip hop in many respects exemplifies characteristics of

other living music traditions: musical borrowing, improvisation, connection to the broader context other

activities, such as dancing,306 and significant social meaning that extends far beyond what is typically

considered by courts, for example, who often give hip hop music the consideration that it is implicitly

deemed to merit in light of its status within hierarchies of taste. Legal views of hip hop need to recognize



and recontextualize considerations of hip hop music with explicit recognition of the effects of Romantic

notions of authorship and the influence of such views on conceptions of musical composition and practice.

IV. COPYRIGHT, LIABILITY RULES AND HIP HOP MUSIC

A. Sampling as an Essential and Necessary Feature of Hip Hop

Current assessments of hip hop within copyright doctrine are shaped by historical and cultural

forces similar to those that helped form the classical canon and establish the basis for copyright

assumptions about authorship. At the core of such assessments is the generally negative evaluation

accorded sampling in hip hop copyright infringement cases that largely derives from the repetition

inherent in sampling practices and consequent assumption that such repetition is contrary to originality.

Views and representations of repetition and originality are thus central to understanding evaluations of

both sampling and hip hop. Repetition expressed through sampling and looping is an inherent part of what

makes hip hop music identifiably hip hop.307 Consequently, the question of whether and how sampling

should be permitted is in some measure an inquiry about how and to what extent hip hop can and should

continue to exist as a musical form. Copyright standards, particularly in the music area, must have greater

flexibility to accommodate varying styles and types of musical production whether based on an African

American aesthetic of repetition and revision, a postmodern style, transformative imitation in the manner

of Handel, allusion as practiced Brahms or another aesthetic that in some other way fails to conform to the

Romantic author ideal that has to this point been integral to copyright.

Musical borrowing is not necessarily connected to originality or creativity at all. The conceptions

of creativity and originality that pervade copyright discussions should also be recognized as reflective of

notions that may not apply to actual musical production, particularly as such production relates to

collaborative aspects of musical practice such as borrowing. Similarly, views of past musical composition

should be tempered with recognition of the operation of invented traditions and cultural ideals that play a

powerful role in shaping both representations and contemporary beliefs and attitudes.



B. Hip Hop and the Goals of Copyright: Control and Compensation in Musical

Works

Understanding the goals and purposes of copyright is a necessary step in considering how

copyright might better engage with hip hop. Copyright reflects a constellation of rights that have been

assembled over time, some of which may have been added as a result of particular perceived problems in

the application of copyright law or at the behest of specific industries.308 Copyright reflects an attempt to

balance between granting private ownership rights that are often thought to incentivize the production of

creative works and maintaining public access to creative works.309

In discussions of copyright and its goals, the compensatory and control aspects of copyright on the

incentive side of the balance are frequently conflated and assumed to be equivalent.310 Private control of

access with respect to existing material, which should be distinguished from compensation for uses of such

material,311 needs to be balanced against the public benefit of access to existing cultural production.312

This is particularly true since the scope copyright has become increasingly broad and of longer duration.313

The recent Copyright Term Extension Act (the “CTEA”) continues this trend by increasing the term of

copyright protection by 20 years.314 The passage of the CTEA has been characterized as reflecting lack of

Congressional attention to the public benefit rationales underlying copyright law.315

The legislative history of early U.S. copyright statutes underscores the fact that copyright has

historically been viewed primarily as an economic right that enables authors to receive compensation for

their creations.316 The use of copyright as a tool to secure the “fruits of intellectual labor” is a clear focus

on the legislative report for the 1831 Copyright Act.317 The 1909 House Report similarly notes that “[t]he

main objective to be desired in expanding copyright protection accorded to music has been to give the

composer an adequate return for the value of his composition.”318 Although varied rationales for copyright

protection have been asserted by courts and in legal discourse, including those based on Lockean theories

as well as moral rights grounds, instrumentalist rationales have been dominant ones underlying the

adoption copyright law regimes in the U.S.319



Discussions of copyright typically assume that current control structures in copyright, through

which a copyright owner may exert control over most uses of knowledge protected by its copyright, are

necessary or appropriate for compensating creators.320 The vision of copyright in legislative and other

discussions can be characterized as an economic right for which a monopoly right is given to the creator to

ensure receipt of economic returns by the creator. This is typically discussed in relation to the monopoly

right that copyright gives its holder and the need to balance between the rights of copyright holders and

public access.321 This conflation of compensation and control is by no means necessary or inevitable.322

In addition, it is possible to structure a compensation system that does not involve control as the

mechanism by which compensation is effectuated.323 The current copyright structure of combining control

and compensation imposes unnecessary transaction costs in that issues relating to allocation of economic

returns are needlessly combined with issues relating to control over future uses of copyrighted works.

In the end, copyright requires balancing the promotion of incentives to encourage creation of new

works with public access to copyright protected materials, which must be tempered by recognition that

many forms of artistic production need such access to promote the creation of new works. Evaluating this

balance is complicated somewhat by the fact that little if any evidence exists to even support the notion

that copyright actually encourages creativity.324 Although it is not evident that copyright actually

stimulates production, copyright can considerably limit the type and nature of cultural production by

considering certain types of production to be infringement. The balancing of interests of future creators or

those who use existing works with current creators is often not fully considered in copyright discourse. In

determining the appropriate balance between public and private interests and what type of access should

be permitted for existing works, the cultural and historical specificity of models of musical production

should be taken into account to a much greater extent than is currently the case. As part of this balancing

process, the objections of creators of existing music to hip hop sampling should not be ignored, but should

similarly not be the basis upon which production of music by hip hop artists or others who use existing

works in their creations is denied.325



C. Hip Hop, Music Industry Practices and Copyright: Musical Borrowing and Liability Rules

1. Music Industry Licensing Practices

A number of legal commentators on hip hop and copyright have proposed compulsory or statutory

licensing systems as the best way to address legal issues arising from hip hop.326 The focus on compulsory

licensing as a solution is one taken from the existing fabric of the copyright framework and music industry

business and commercial practices. By virtue of established types of agreements that govern business

relationships among those with potential claims to music copyrights, music already represents a

specialized application of copyright in many ways. Through commercial practices evident in typical music

licensing transactions, copyright has thus effectively been particularized in its application to musical

composition and practice.327 Such practices also highlight the fact that copyright has increasingly become

a regulatory system within which standardized business and commercial practices that have developed to

facilitate transactions.328 Such practices in music also underscore how a copyright model based on

autonomous and individualistic notions of composition is melded in actual practice with a reality that does

not reflect such notions.

As a result, business structures and practices that currently exist within music copyright as applied

are one starting point from which to consider ways in which hip hop musical production may be

accommodated, at least in the short term.329 The manner and nature of hip hop uses of existing music

suggest that the most feasible mechanism, within the confines of the current system, would involve some

type of licensing.

Licenses are used extensively in the music industry today.330 Many of these licenses are not

individually negotiated. 331 Current industry practice with respect to hip hop involves individually

negotiated licenses.332 Two types of existing licenses are particularly relevant to consideration of any

potential hip hop compulsory licensing system: mechanical licenses333 and compulsory or statutory

licenses.334 Under the statutory licensing requirements in Section 115 of the Copyright Act, once the

owner of a copyright has permitted public distribution of recordings of a musical composition in audio

form, the owner must grant licenses for other recordings.335 The commercial practices that subsequently



developed in the music recording industry for such licenses clearly attempt to streamline the permission

process as much as possible.

The existing compulsory licensing provisions of copyright law reflect a balancing of the rights of

owners of copyrights with those who need access to their copyrighted works for various purposes,

including making cover recordings, which are rerecordings of existing copyrighted musical

compositions.336 Congress has explicitly limited the scope of compulsory licenses by preventing uses that

might be considered “perverted, distorted, or travestied.”337 Consequently, both compulsory license and

mechanical license provisions typically incorporate Section 115(a) statutory language preventing changes

in the melody or fundamental character of a work.338 This existing framework of commercial practices

developed around a statutory framework, represents a potential model for treatment of hip hop under the

Copyright Act.

2. Liability Rule Frameworks for Hip Hop Music

A clear need exists for an approach that will facilitate access to existing copyrighted works for

those whose aesthetic style incorporates use of existing works while retaining the economic rights of

copyright owners to continue to receive compensation for uses of their creations in line with the goals of

copyright. Moving in the direction of a liability rule as opposed to a property rule, would also help reduce

transaction costs and other costs with respect to hip hop sampling.339

The current copyright system is in most respects a property rule under which nonconsensual

takings are discouraged.340 In music copyright, such nonconsensual takings are conceived of as copyright

infringement and are only permissible if the copyright owner consents to such use, most often through the

granting of some type of license.341 Actual musical practice, however, which has always entailed

borrowing, is far better suited to a liability rule, which would permit infringement of the legal entitlement

with ex post determination of appropriate compensation.342

The current copyright system may arguably be a property rule with an administrative structure that

effectively functions as a statutory liability rule that may give the benefits of lower transaction costs.343

Such rule, however, entails other costs in the form of a potentially distorting effect on the creation of



music by virtue of the fact that borrowing is more difficult under a property rule.344 Further, initial

allocations of rights often matter.345 As a result, the application of a property rule in the music area has the

effect of privileging incumbents or existing creators over future users because initial creators, who also

borrow, are permitted to garner strong ownership rights through a property rule over their creations

irrespective of the fact that their creations are also based on borrowing. In contrast, later creators cannot

use borrowing in the same fashion without infringing on existing property rights. The ideology of

Romantic authorship bolsters and provides a rationale for earlier creators to exclude others from creating

future works based on such creators’ productions. This potentially has significant negative long term

implications for the continuation of vibrant and creative musical traditions. An overt liability rule

structure can help focus on regulating transmissions of knowledge rather than concentrating on delineating

ownership status and allocating ownership rights with respect to existing knowledge.346 As a result, a

liability rule structure may avoid some of these negative effects by removing factors that effectively

impede future creations, while providing the compensation to creators for uses of their works by others.

Compulsory licensing solutions in the hip hop area should thus clearly reflect a liability rule. Such

a solution would be both like and unlike existing compulsory licensing structures for mechanical

licenses.347 Hip hop compulsory licensing would similarly arise from a need to balance the rights of

copyright owners with those who need access to works protected by copyrights. Unlike existing

compulsory licensing statutory requirements, however, the proposed uses by hip hop samplers, would

change the melody or fundamental character of a work. As a result, the existing statutory provisions

providing that a statutory license should change the melody or fundamental character of the work, are not

transferable to a hip hop.

3. A Hip Hop Sampling Framework

A hip hop sampling framework should distinguish three types of sampling: sampling in which the

original source is not recognizable, sampling in which the original source recognizable but de minimis and

sampling in which the original source is recognizable and not de minimis.348 Identification of the type of

sample that exists should be made by the person proposing to use the sample.349



Payment structures of hip hop sampling should be based on a rewards-like payment structure.350

Under such a system, rather than compensating copyright owners directly, sampling artists would pay a

flat fee based on the type of sampling that they propose to undertake. Payments would then be allocated

among copyright owners based on the frequency of sampling.351 Determination of appropriate fees would

be an important aspect of such a system. Sampling fees should be graduated based on the nature of the

sampling involved.

In instances when the original source is not recognizable, the hip hop compulsory licensing system

should patterned as much as possible after the existing compulsory licensing system,352 except with respect

to the Section 115(a)(2) limitation on changing the melody or fundamental character of the work and the

structure of payment.353 Recognizing that the interests of the creator of a sampled work may be

heightened in instances when the sample is recognizable, two categories of recognizable sampling should

be created: recognizable de minimis samples and recognizable samples that are not de minimis.354 De

minimis recognizable samples should not constitute copyright infringement. Recognizable samples that

are not de minimis should be subject to the standards outlined in the 1976 House Report with respect to

compulsory licenses.355 Other than with respect to proposed uses of the copyrighted work and payment

structure, the hip hop compulsory license could incorporate existing compulsory licensing provisions,

including the mandatory issuance of compulsory licenses following first public distribution of recordings

of the composition in audio form.

This compulsory licensing system would have the advantage of ensuring the copyright owners

receive compensation for use of their works in accordance with the goals of the current copyright system,

while providing needed access to such works for other creators who base their creations on existing works.

To the extent that statutory licensing provisions are too burdensome, as is the case with statutory licenses

and mechanical licenses, the hip hop statutory license provisions could serve as a guideline for negotiated

hip hop licenses.

Although in the end a substantial revision of copyright toward a rewards system may be

desirable,356 in the immediate short term, commercial practices through licensing are a potentially effective



tool for dealing with hip hop within existing copyright structures. A key aspect of this process will be

developing commercial processes to facilitate hip hop sampling, keep transaction costs low and protect the

interests of copyright owners, particularly their right to receive compensation for uses of their copyrighted

work.

Another example of commercial processes that encourage sampling is music distributed under a

Creative Commons license. Creative Commons is distributing compact discs and making content

available on the Internet that is intended to be sampled.357 Such commercial practices, along with a hip

hop compulsory license framework, will help ensure greater access to existing copyrighted works, meet

copyright goals of protecting creators’ economic interests, assist in restoring the access side of the

copyright balance and promote the continued development of musical works based on an aesthetic of using

existing works.

V. CONCLUSION

Historical and cultural context shapes analyses of hip hop on two levels. The first relates to the

assumed historical development of music generally and locates hip hop in relation to this history.

Assessments of hip hop from this perspective are distorted by the fact that the tradition against which hip

hop is at least implicitly measured, the European classical tradition, is itself an invented tradition whose

assumed characteristics and musical composition practices, particularly with respect to musical borrowing,

do not reflect actual practice within this tradition, particularly during the time that it was an active, living

tradition. The second level concerns the broader contemporary cultural contexts within which hip hop

operates. Musical creations in this environment can be significantly affected by copyright standards that

negate or disallow particular musical practices.

In mediating between these historical and sociocultural factors, courts play an important role in

helping to determine the shape and nature of acceptable cultural production. This is not a role that should

be undertaken without fully understanding and considering the broader contexts within which musical

production occurs. Although recontextualization of hip hop within these broader aspects is necessary, in

the end, as a number of commentators have suggested, standards need to be developed to address hip hop



and sampling and determine what constitutes acceptable and unacceptable practices with respect to

sampling. Understanding hip hop and other forms of cultural production based upon use of existing works

represents a step in the right direction towards fully appreciating the contributions of varied traditions,

styles and methods of artistic production.

A succession African American musical genres, including ragtime, blues, jazz, R&B, gospel, Doo-

Wop, Soul, rock, reggae, funk, disco and rap, have “stamped themselves indelibly on the lives of

generation after generation . . . [as] the most important tributary flowing into today’s music”, which is a

function of “the exceptional vitality, creativity, and power of musicians working within these idioms.”358

Legal considerations of music need to incorporate far greater understanding of music and its broader

history and context into analyses of music under copyright law.359 Further, as we apply legal standards

embedded in copyright law based upon idealized and inaccurate notions of music creation not even truly

connected to musical production in an invented classical music tradition that is no longer a vibrant and

living music tradition,360 we should be careful and be alert to the implications of such actions, as well as

the fact that musical production may in the end come to mirror the conceptions contained in copyright

standards applied to it.

ENDNOTES

1 Beethoven’s achieved fame first as a keyboard virtuoso and later as a pianist-composer. See TIA DENORA, BEETHOVEN AND THE CONSTRUCTION OF GENIUS 130 (1995). Public Enemy, which is described as one of the holy trinity of hip hop music, is a platinum-selling hip hop music group that has been on the cutting edge of hip hop music in a number of ways. See infra note 2. Public Enemy’s classic 1988 album It Takes a Nation of Millions to Hold Us Back “is widely cited as the greatest rap album of all time.” Ernest A. Jasmin, Chuck D Muses on State of Rap, NEWS TRIB., Sept. 5, 2004, at D01; Robert Walser, Rhythm, Rhyme and Rhetoric in the Music of Public Enemy, 39 ETHNOMUSICOLOGY 193, 193 (1995). 2 Beethoven is often characterized as a “revolutionary” composer. See DeNora, supra note 1, at 2. Public Enemy is crediting with having revolutionized rap music, transforming it from party music into a serious political force. See Monte Young, Thirty Years of Hip Hop, NEWSDAY, Oct. 13, 2004, at B4. 3 In addition to borrowing from others, Beethoven reworked his existing music in some way in more than one third of his compositions. See infra notes 217 to 218 and accompanying text. Through extensive use of sampling, Public Enemy and other hip hop music groups incorporate existing music into their works. See infra notes 50 to 52 and accompanying text. 4 See Jose A Bowen, The History of Remembered Innovation: Tradition and Its Role in the Relationship between Musical Works and Their Performances, 11 J. MUSICOLOGY 139, 139-140 (1993); Robin Moore, The Decline of Improvisation in Western Art Music: An Interpretation of Change, 23 INT’L REV. AESTHETICS & SOCIOLOGY MUS. 61, 62 (1992). 5 See Moore, supra note 4, at 79; James Parakilas, Classical Music as Popular Music, 3 J. MUSICOLOGY 1, 6 (1984). 6 Parakilas, supra note 5, at 6. 7 See Bridgeport Music, Inc. v. Dimension Films, 2004 U.S. App. LEXIS 18810 (6th Cir. 2004); Bridgeport Music, Inc. v. Boutit, 101 Fed. Appx. 76 (6th Cir. 2004); Bridgeport Music, Inc. v. Still N the Water Publishing, 327 F.3d 472 (6th Cir. 2003); Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 830 (M.D. Tenn. 2002). 8 See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 47 (1976), reprinted in 2076 U.S.C.C.A.N. 5659 (hereinafter, “1976 House Report”). The 1976 general revision to United States Copyright Law, as amended, is hereinafter the “Copyright Act.”



9 Improvements in printing technology facilitated the development of the sheet music industry. William Weber, Mass Culture and the Reshaping of European Musical Taste, 1770-1870, 8 INT’L REV. AESTHETICS & SOCIOLOGY MUS. 5, 10 (1977). 10 The introduction of the player piano and phonograph seriously damaged the sheet music industry. See Lisa Gitelman, Reading Music, Reading Records, Reading Race: Musical Copyright and the U.S. Copyright Act of 1909, 81 MUS. QTLY 265, 275 (1997). See also White-Smith Music v. Apollo, 209 U.S. 1 (1908). 11 See Reebee Garofalo, From Music Publishing to MP3: Music and Industry in the Twentieth Century, 17 AM. MUS. 318 (1999).; Lucia S. Schultz, Performing-Rights Societies in the United States, 35 Notes 511, 516 (1979). 12 See MICHAEL CHANAN, REPEATED TAKES: A SHORT HISTORY OF RECORDING AND ITS EFFECTS ON MUSIC (1995); Garofalo, supra note 11, at 336 ; CHRISTOPHER SMALL, MUSIC OF THE COMMON TONGUE: SURVIVAL AND CELEBRATION IN AFRICAN AMERICAN MUSIC 395 (1987) 13 See generally JESSICA LITMAN, DIGITAL COPYRIGHT (2001); See also Congressional Budget Office, Copyright Issues in Digital Media 19 (Aug. 2004), at http://www.cbo.gov/ftpdocs/57xx/doc5738/08-09-Copyright.pdf (hereinafter, “CBO”); Simon Frith & Lee Marshall, Making Sense of Copyright, in MUSIC AND COPYRIGHT 1, 3 (Simon Frith & Lee Marshall eds. 2d ed., 2004). 14 Gitelman, supra note 10, at 265. 15 See Garofalo, supra note 11, at 319. 16 See Schultz, supra note 11, at 522. 17 See Paul Théberge, Technology, Creative Practice and Copyright, in MUSIC AND COPYRIGHT 139-156 (Simon Frith & Lee Marshall eds. 2d ed., 2004). 18 See, e.g., A&M Records et al. v. Napster, Inc., 284 F.3d 1091 (2002); Joseph A. Sifferd, The Peer-to-Peer Revolution: A Post-Napster Analysis of the Rapidly Developing File-Sharing Technology, 4 VAND. J. ENT. L. & PRAC. 92 (2002); Jane C. Ginsburg, Copyright and Control Over New Technologies of Dissemination, 101 COLUM. L. REV. 1613 (2001); CBO, supra note 13, at 17-20; Felix Oberholzer & Koleman Strumpf, The Effect of File Sharing on Record Sales (March 2004). 19 See TIMOTHY D. TAYLOR, STRANGE SOUNDS: MUSIC, TECHNOLOGY AND CULTURE 3 (2001); Andrew Goodwin, Sample and Hold: Pop Music in the Digital Age of Reproduction, in ON RECORD: ROCK, POP, AND THE WRITTEN WORD 258, 263 (Simon Frith & Andrew Goodwin eds., 1990). 20 See 1976 House Report, supra note 8, at 51-52; Jessica Litman, Copyright in the Twenty-First Century: The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29, 34 (1994); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 290 (1996). 21 JAMES BOYLE, SHAMANS, SOFTWARE, & SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 19 (1996); BRAD SHERMAN AND LIONEL BENTLY, THE MAKING OF MODERN INTELLECTUAL PROPERTY LAW 55 (1999)); David McPhie, Access Made Accessible: Shaping the Laws and Technologies That Protect Creative Works, 55 J. COPYRIGHT SOC’Y U.S.A. 521, 523 (2004). 22 Kretschmer & Friedemann Kawohl, The History and Philosophy of Copyright, in MUSIC AND COPYRIGHT 21, 35 (Simon Frith & Lee Marshall eds. 2d ed., 2004); Sherman & Bently, supra note 21, at 55. 23 Kretschmer & Kawohl, supra note 22, at 33, 35; see also Stowe v. Thomas, 23 F. Cas. 201, 208 (C.C.E.D. Pa. 1853) (holding that translation of Harriet Beecher Stowe’s Uncle Tom’s Cabin into German did not constitute copyright infringement); Wendy J. Gordon, Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship, 57 U. CHI. L. REV. 1009, 1018 (1990) (Review of PAUL GOLDSTEIN, COPYRIGHT: PRINCIPLES, LAW AND PRACTICE (1989; Meredith L. McGill, The Matter of the Text: Commerce, Print Culture, and the Authority of the State in American Copyright Law, 9 AM. LIT. HIST. 21, 50-51 (1997). 24 See MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT 1-9 (1993). 25 See Michael W. Carroll, Whose Music is It Anyway?: How We Came to View Musical Expression as a Form of Property, 72 U. CIN. L. REV. (2004); Michael W. Carroll, Owning Music: From Publisher’s Privilege to Composer’s Copyright (manuscript on file with author) (2004) (hereinafter, “Carroll, Owning Music”). 26 See Gitelman, supra note 10, at 273. 27 Rhythm and pitch are two essential elements of music. Justin London, Rhythm, NEW GROVE DICTIONARY. Melody and harmony relate to pitch. Melody may be defined as “pitched sounds arranged in musical time in accordance with given cultural conventions and constraints.” Alexander R. Ringer, Melody, NEW GROVE DICTIONARY. In contrast to melody, harmony involves: “[t]he combining of notes simultaneously, to produce chords, and successively, to produce chord progressions.” Harmony, NEW GROVE DICTIONARY. Rhythm is more difficult to define, but whereas pitch relates to musical notes, rhythm, “is concerned with the description and understanding of their duration and durational patternings.” London, supra. 28 These 12 tones occur in a single octave. There are many potential octaves in which tones might be placed at relatively lower and higher pitch registers, but each octave contains the same 12 tones of C, C#/D-flat, D, D#/E-flat, E, F, F#/G-flat, G, G#/A-flat, A, A#/B-flat and B. See MARJORIE MERRYMAN, THE MUSIC THEORY HANDBOOK 2 (1997). 29 Id. at 36-38. See also SIVA VAIDHYANATHAN, COPYRIGHTS AND COPYWRONGS: THE RISE OF INTELLECTUAL PROPERTY AND HOW IT THREATENS CREATIVITY 118 (2001); FRANK ZAPPA WITH PETER OCCHIOGROSSO, THE REAL FRANK ZAPPA BOOK 187-188 (1989). 30 V. KOFI AGAWU, PLAYING WITH SIGNS: A SEMIOTIC INTERPRETATION OF CLASSIC MUSIC 15 (1991). 31 Susan McClary, The Blasphemy of Talking Politics during Bach Year, in MUSIC AND SOCIETY: THE POLITICS OF COMPOSITION, PERFORMANCE AND RECEPTION 13, 16 (Richard Leppert & Susan McClary eds., 1987). 32 The Statute of Anne is generally considered to be the first British copyright statute. Ann., c. 19 (Copyright 1709). Music was not at first protected under the Statute of Anne. See Kretschmer & Kawohl, supra note 22, at 27. 33 98 Eng. Rep. 1274, 1275 (Ct. 1777); see also Carroll, Owning Music, supra note 25, at 47; John Small, J.C. Bach Goes to Law, 126 MUSICAL TIMES 1711 (1985); Ronald J. Rabin & Steven Zohn, Arne, Handel, Walsh and Music as Intellectual Property: Two Eighteenth-Century Lawsuits, 120 J. ROYAL MUSICAL SOC’Y 112 (1995); David Hunter, Music Copyright in Britain to 1800, 67



MUS. & LETTERS 269 (1986); Nancy A. Mace, Haydn and the London Music Sellers: Forster v. Longman & Broderip, 77 MUS. & LETTERS 527 (1996). 34 Difficulties in music copyright reflect difficulties in copyright more generally. See LYMAN RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 213 (1968). 35 Id. at 197. 36 Id. at 201. 37 See Carroll, Owning Music, supra note 25 for a discussion of the history of the application of copyright to music. 38 The term hip hop is used herein as “a collective term for black American urban art forms that emerged in the late 1970s.” David Toop, Hip Hop, NEW GROVE DICTIONARY. See also TRICIA ROSE, BLACK NOISE: RAP MUSIC AND BLACK CULTURE IN CONTEMPORARY AMERICA (1994); Walser, supra note 1. 39 See HOUSTON A. BAKER, JR., BLACK STUDIES, RAP AND THE ACADEMY 62 (1993). 40 See Rap, THE HARVARD DICTIONARY OF MUSIC 704-705 (Don Michael Randel ed. 4th ed., 2003); Paul Butler, Much Respect: Toward a Hip-Hop Theory of Punishment, 56 STAN. L. REV. 983, 984 (2004); Neil Strauss, The Pop Life; Crossing Racial Boundaries, Rap Gains Ground, N.Y. TIMES, Oct. 15, 1998, at E1; Christopher John Farley, Hip-Hop Nation; There’s More to Rap Than Just Rhythms and Rhymes; After Two Decades, It has Transformed the Culture of America, TIME, Feb. 8, 1999, at 54; Lisa W. Foderaro, Our Towns; Finding Hope in a Museum of Hip-Hop, N.Y. TIMES, July 28, 1999, at B1. 41 Butler, supra note 40, at 984; Mark Espiner, Hip-Hop on the Frontline; Globalised Rap Music May Have Lost Its Bite, But in the Middle East It's Giving Voice to Both Sides in the Conflict, GUARDIAN, Oct. 26, 2004; Ben Jacobson, Rappers of the World Unite, JERUSALEM POST, June 24, 2004, at 24; Juan Ferero, For Colombia's Angry Youth, Hip-Hop Helps Keep It Real, N.Y. TIMES Apr. 16, 2004; Tony Mitchell, Questions of Style: Notes on Italian Hip Hop, 14 POP. MUS. 333 (1995); Dietmar Elflein, From Krauts with Attitudes to Turks with Attitudes: Some Aspects of Hip-Hop History in Germany, 17 POP. MUS. 255 (1998). 42 Some associate commercialization with the decline of hip hop as a vehicle for positive social change. See, e.g., Ricardo Baca, At Weekend’s Summit, It’s More Message Than Music, DENVER POST, May 14, 2004, at FF-01. 43 Jeff Leeds, The Great White Rapper Hope: Searching for the Next Eminem, CHIG. TRIB., Nov. 17, 2002, at C14; Christopher John Farley, A Whiter Shade of Pale; Eminem Taunts Gays; Bashes His Mom and is a Wizard at Wordplay, TIME, May 29, 2000, at 73. 44 . See John Leland, Feuding for Profit: Rap’s War of Words; In Rap Industry, Rivalries as Marketing Tool, N.Y. TIMES, Nov. 3, 2003, at 1; 45 Greg Dimitriadis, Hip Hop: From Live Performance to Mediated Narrative, 15 POP. MUS. 179, 179 (1996). 46 Hip Hop, THE HARVARD DICTIONARY OF MUSIC 391, 392 (Don Michael Randel ed. 4th ed., 2003); Sonia Murrai, 25 Years of Hip-Hop: Atlanta’s Dupri is a New-Style Mogul, ATLANTA J-CONST., Sept. 26, 2004, at 1A. 47 Id. 48 Gamboa, supra note 43. 49 Taylor, supra note 19, at 153; AL KOHN & BOB KOHN, KOHN ON MUSIC LICENSING 1477-1548 (3d. ed., 2002). 50 Will Fulford-Jones, Sampling, NEW GROVE DICTIONARY. Other hip hop production practices include looping, or repetitive reiterations of a particular sample. See Stephen R. Wilson, Music Sampling Lawsuits: Does Looping Music Samples Defeat the De Minimis Defense?, 1 J. HIGH TECH. L. 179 (2002), 51 See Fulford-Jones, supra note 50. 52 Théberge, supra note 17, at 139; Matthew G. Passmore, A Brief Return to the Digital Sampling Debate, 20 HASTINGS COMM. & ENT. L.J. 833, 838-839 (1998). 53 See Jeffrey H. Brown, Comment, “They Don’t Make Music the Way They Used To”: The Legal Implications of “Sampling” in Contemporary Music, 1992 WIS. L. REV. 1941, 1942; Sharon Colchamiro, Note, To Clear or Not to Clear: Licensing Digital Samples, 5 HOFSTRA PROP. L.J. 157, 157 (1992; Sherri Carl Hampel, Note, Are Samplers Getting a Bum Rap?: Copyright Infringement or Technological Creativity?, 1992 U. ILL. L. REV. 559, 589 (1992); Mary B. Percifull, Digital Sampling: Creative of Just Plain “CHEEZOID?”, 42 CASE W. RES. 1263, 1266 (1992); A. Dean Johnson, Music Copyrights: The Need for an Appropriate Fair Use Analysis in Digital Sampling Infringement Suits, 21 FLA. ST. U.L. REV. 135, 136 (1993). 54 See, e.g. Jason H. Marcus, Don’t Stop that Funky Beat: The Essentiality of Digital Sampling to Rap Music, 13 HASTINGS COMM. & ENT. L.J. 767 (1991); Michael L. Baroni, A Pirate’s Palette: The Dilemmas of Digital Sound Sampling and a Proposed Compulsory License Solution, 11 U. MIAMI ENT. & SPORTS L. REV. 65 (1993); Robert M. Szymanski, Audio Pastiche: Digital Sampling, Intermediate Copying, Fair Use, 3 UCLA ENT. L. REV. 271 (1996). 55 Eric Shimanoff, The Odd Couple: Postmodern Culture and Copyright, 11 MEDIA L. & POL’Y 12, 20-22 (2002); Naomi Abe Voegtli, Rethinking Derivative Rights, 63 BROOKLYN L. REV. 1213, 1221 (1997). 56 Andrew Bartlett, Airshafts, Loudspeakers, and the Hip Hop Sample: Contexts and African American Musical Aesthetics, 28 AFR. AM. REV. 639, 650 (1994); Houston A. Baker, Jr., Handling “Crisis”: Great Books, Rap Music, and the End of Western Homogeneity (Reflections on the Humanities in America), 13 CALLALOO 173, 183 (1990). 57 Théberge, supra note 17, at 140; see also Kurt Blaukopf, Westernisation, Modernisation, and the Mediamorphosis of Music, 25 INT’L REV. AESTHETICS & SOCIOLOGY MUS. 337, 344 (1994) 58 17 U.S.C. § 102(a) (2003). 59 The Intellectual Property Clause of the Constitution states: “The Congress shall have Power. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. CONST. ART. I, § 8, cl. 8. 60 See 1976 House Report, supra note 8, at 51.



61 A number of cases highlight this view of artistic production. See, e.g., Alfred Bell v. Catalda Fine Arts, 191 F.2d 99, 103 (2d Cir. 1951); West Publishing v. Mead Data Central, 799 F.2d 1219, 1223 (8th Cir.1986); Grove Press. v. Collectors Publication, 264 F. Supp. 603, 605 (C.D. Cal. 1967); Jollie v. Jaques, 13 F. Cas. 910, 913, 914 (S.D.N.Y. 1850); Northern Music v. King Record, 105 F. Supp. 393, 400 (1952); L. Batlin v. Jeffrey Snyder, 536 F.2d 486, 491 (2d Cir. 1976). 62 See Emerson v. Davis, 8 F. Cas. 615, 619 (CCD Mass. 1845); Pierre N. Leval, Nimmer Lecture: Fair Use Rescued, 44 UCLA L. REV. 1449, 1450 (1997). 63 See Robert A. Gorman, Copyright Courts and Aesthetic Judgments: Abuse or Necessity, 25 COLUM. J.L. & ARTS 1, 2 (2001). See J. Peter Burkholder, Borrowing, NEW GROVE DICTIONARY (hereinafter, “Burkholder, Borrowing”). 65 Martin Rudoy Scherzinger, Music, Spirit Possession and the Copyright Law: Cross-Cultural Comparisons and Strategic Speculations, 31 YEARBOOK TRAD. MUS. 102, 105 (1999). 66 See KOFI AGAWU, REPRESENTING AFRICAN MUSIC: POSTCOLONIAL NOTES, QUERIES, POSITIONS 64 (2003). 67 17 U.S.C. § 102(a)(2) (2003). 68 17 U.S.C. § 102(a) (2003) . 69 See, e.g., Jarvis v. A&M Records, 827 F. Supp. 282 (D.N.J. 1993); Consolidated Music Publishers v. Ashley Publications, 197 F. Supp. 17, 18 (S.D.N.Y. 1961); Shapiro, Bernstein v. Miracle Record, 91 F. Supp. 473, 474 (N.D. Ill. 1950); McIntyre v. Double-A Music, 166 F. Supp. 681, 683 (S.D. Cal. 1958); Tempo Music v. Famous Music, 838 F. Supp 162, 169 (S.D.N.Y. 1993); Callaghan v. Myers, 128 U.S. 617 (1888); Cooper v. James, 213 F. 871, 872 (N.D. Ga. 1914)l Jean v. Bug Music, Inc., 2002 WL 287786 (S.D.N.Y. 2002). 70 17 U.S.C. § 102(a)(7) (2003). 71 Ulloa v. Universal Music, 303 F. Supp. 2d 409, 412 (S.D.N.Y. 2004). 72 Nimmer discusses two major types of substantial similiarity: comprehensive nonliteral similarity and fragmented literal similarity. Nimmer § 13.03[A]. See also Roth Greeting Cards v. United Card Company, 429 F.2d 1106, 1110 (9th Cir.1970); Jarvis, 827 F. Supp. at 290. 73 See Nimmer § 13.03[A][2]; Newton v. Diamond 394 F.3d. 591, 596 (9th Cir. 2003); Williams v. Broadus, 2001 WL 984714 (S.D.N.Y. 2001), at *3. 74 See Nimmer § 13.03[A]. 75 See Williams 2001 WL 984714, at *3. 76 Arnstein v. Porter, 154 F.2d 464, 468-469 (2d Cir. 1946); see also Stephanie J. Jones, Music Copyright in Theory and Practice: An Improved Approach for Determining Substantial Similarity, 31 DUQ. L. REV. 277 (1993). 77 See Alan Latman, “Probative Similarity” As Proof of Copying: Toward Dispelling Some Myths in Copyright Infringement, 90 COLUM. L. REV. 1187, 1190, 1204 (1990). 78 See Taxe, 380 F. Supp. at 1014; Tuff ‘N’ Rumble Management Inc. v. Profile Records Inc., 1997 U.S. Dist. LEXIS 4186 (S.D.N.Y. 1997), at 12; Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976). 79 Bridgeport, 2004 U.S. App. LEXIS 18810 at 11. 80 17 U.S.C. § 101 (2003); see also Williams, 2001 WL 984714 , at *2. 81 U.S. v. Taxe, 380 F. Supp. 1010 (C.D. Cal. 1974); Woods v. Callicoon Music, 60 F.3d 978 (2d Cir. 1995; Gorman, supra note 61, at 6; Rebecca Morriss, When is a CD Factory Not Like a Dance Hall?: The Difficulty of Establishing Third-Party Liability for Infringing Digital Music Samples, 18 CARDOZO ARTS & ENT. L.J. 257, 266 (2000); 17 U.S.C. § 114(b) (2003). 82 See Peter Jaszi, Contemporary Copyright and Collective Creativity, in THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE 29, 40 (Martha Woodmansee & Peter Jaszi eds., 1994). 83 See Burkholder, Borrowing, supra note 64. 84 17 U.S.C. § 106 (2003). 85 See Paul J. Heald, Reviving the Rhetoric of the Public Interest: Choir Directors, Copy Machines and New Arrangements of Public Domain Music, 46 DUKE L.J. 241, 244 (1996). 86 See Stephen R. Wilson, Rewarding Creativity: Transformative Use in the Jazz Idiom, 6 PGH J. TECH. L. & POL'Y 2 (2003). 87 See Susan J. Latham, Newton v. Diamond: Measuring the Legitimacy of Unauthorized Compositional Sampling - A Clue Illuminated and Obscured, 26 HASTINGS COMM. & ENT. L.J. 119, 139-140 (2003). 88 See Fisher v. Dees, 749 F.2d 432 (9th Cir. 1986); Newton, 349 F.3d at 591. 89 See, e.g., Elsmere Music, Inc. v. National Broadcasting Company, Inc., 482 F. Supp. 741 (S.D.N.Y. 1980); Sandoval v. New Line Cinema, 147 F.3d 215 (2d Cir. 1998); Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997). 90 Fair use is an originally judicial doctrine that was incorporated into the Copyright Act as Section 107. 17 U.S.C. § 107 (2003). See Campbell v. Acuff-Rose, 510 U.S. 569 (1993); see also SunTrust Bank v. Houghton Mifflin, 268 F. 3d 1257 (11th Cir. 2001); Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REV. 1105 (1990); Wilson, supra note 86; Jeremy Kudon, Note: Form Over Function: Expanding the Transformative Use Test for Fair Use, 80 B.U.L. REV. 579 (2000). 92 See Gorman, supra note 61, at 14-16. 93 Campbell, 510 U.S. at 579. 94 Matthew D. Bunker, Eroding Fair Use: The “Transformative” Use Doctrine After Campbell, 7 COMM. L. & POL'Y 1, 24 (2002); Liebovitz v. Paramount Pictures, 137 F.3d 109 (2d Cir. 1998); Castle Rock Entertainment v. Carol Publishing Group, 150 F3d 132 (2d Cir. 1998); Elisa Vitanza, Intellectual Property: A. Copyright: 2. Derivative Works: a) Popular Culture Derivatives: Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 14 BERKELEY TECH. L.J. 43 (1999) 95 See McClary, supra note 31, at 16.



96 See Max Weber, The ‘Objectivity” of Knowledge in Social Science and Social Policy, in THE ESSENTIAL WEBER 359, 387-399 (Sam Whimster ed., 2004); see also John Drysdale, How Are Social Scientific Concepts Formed: A Reconstruction of Max Weber’s Theory of Concept Formation, 14 SOC. THEORY 71 (1996). 97 J. Peter Burkholder, The Uses of Existing Music: Musical Borrowing as a Field, 50 NOTES 851 (1994) (hereinafter, “Burkholder, Uses”); Burkholder, Borrowing, supra note 64; see also Latham, supra note 87, at 121. 98 Grand Upright v. Warner Brothers Records, 780 F. Supp. 182 (S.D.N.Y. 1991); see also, Santrayll v. Burrell, 993 F. Supp. 173 (S.D.N.Y. 1998).; Ulloa, 303 F. Supp. 2d at 409; Jarvis, 827 F. Supp. at 295; Williams, 2001 WL 98714; Tuff ‘N’ Rumble Management Inc., 1997 U.S. Dist. LEXIS 4186. 99 See, e.g., Amy B. Cohen, Copyright Law and the Myth of Objectivity: The Idea-Expression Dichotomy and the Inevitability of Artistic Value Judgments, 66 INDIANA L.J. 175 (1990); Hein v. Harris, 175 F. 875, 876-877 (S.D.N.Y. 1910); Fisher v. Dillingham, 298 F. 145, 147 (S.D.N.Y. 1924). 100 Judge Duffy in Grand Upright begins his decision by quoting the Seventh Commandment of “Thou shalt not steal.” See also Jarvis, 827 F. Supp. at 295. 101 See Burkholder, Borrowing, supra note 64; see also infra notes 115 to 154 and accompanying text. 102 See JOHANNES FABIAN, TIME AND THE OTHER: HOW ANTHROPOLOGY MAKES ITS OBJECT (2002[1983]). 103 See Amy Binder, Constructing Racial Rhetoric: Media Depictions of Harm in Heavy Metal and Rap Music, 58 AM. SOCIOLOGICAL REV. 753, 754 (1993). 104 See Kofi Agawu, Contesting Difference: A Critique of Africanist Ethnomusicology, in THE CULTURAL STUDY OF MUSIC: A CRITICAL INTRODUCTION 227, 234 (Martin Clayton, Trevor Herbert & Richard Middleton eds., 2003). 105 See Philip V. Bohlman, Musicology as Political Act, 11 J. MUSICOLOGY 411, 424 (1993). 106 See Philip V. Bohlman, On the Unremarkable in Music, 16 19TH-CENTURY MUSIC 203, 205 (1992); Robert Walser, Eruptions: Heavy Metal Appropriations of Classical Virtuosity, 11 POP. MUS. 263, 301 (1992). 107 See Binder, supra note 103, at 754. 108 See, e.g, Passamore, supra note 52; Marcus, supra note 54; Szymanski, supra note 54; Negativland, The Public Domain: Two Relationships to a Public Domain, 66 LAW & CONTEMP. PROB. 239 (2003). 109 See David Sanjek, Fairly Used: Negativeland’s U2 and the Precarious Practice of Acoustic Appropriation, in MUSIC AND TECHNOCULTURE 358, 359 (René T.A. Lysloff & Leslie C. Gay, Jr. eds., 2003). 110 Janet Wolff, Foreword: The Ideology of Autonomous Art, in MUSIC AND SOCIETY: THE POLITICS OF COMPOSITION, PERFORMANCE AND RECEPTION 1, 2 (Richard Leppert & Susan McClary eds., 1987) . 111 See Garofalo, supra note 11, at 325; HOUSTON A. BAKER, JR., BLUES, IDEOLOGY AND AFRO-AMERICAN LITERATURE: A VERNACULAR THEORY 11 (1984) 112 See, e.g., Latham, supra note 87, at124.. 113 See supra note 55. 114 Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of “Authorship”, 1991 DUKE L.J. 455; Martha Woodmansee, On the Author Effect: Recovering Collectivity, in THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE 15, 21 (Martha Woodmansee & Peter Jaszi eds., 1994). 115 See SCOTT BURNHAM, BEETHOVEN HERO xiii (1995). 116 See Trevor Ross, Copyright and the Invention of Tradition, 26 EIGHTEENTH-CENTURY STUDIES 1, 19, 21 (1992). 117 Edward E. Lowinsky, Musical Genius—Evolution and Origins of a Concept, 50 MUS. QTLY 321, 338 (1964); Hans Lenneberg, The Myth of the Unappreciated (Musical) Genius, , 66 MUS. QTLY 219, 221 (1980); Scherzinger, supra note 65, at 103; Martha Woodmansee, Genius and the Copyright, in THE AUTHOR, ART, AND THE MARKET 35, 37 (1994). 118 Walser, supra note 1, at 195. 119 See _____________ (hereinafter, “Cultural Autonomy”); Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). See also Russ VerSteeg, Rethinking Originality, 34 WM. & MARY L. REV. 801 (1992-1993). 120 See DeNora, supra note 1, at 189. 121 See generally Sherman & Bently, supra note 21; Patterson, supra note 34. 122 See generally LAWRENCE LEVINE, HIGH BROW, LOW BROW: THE EMERGENCE OF CULTURAL HIERARCHY IN AMERICA (1988). 123 See Cultural Autonomy, supra note 119. 124 Id. 125 Levine, supra note 122, at 72. 126 Id. at 72. 127 Id. at 137; Weber, supra note 9, at 5. 128 Levine, supra note 122, at 168. 129 Moore, supra note 4, at 75; JACQUES ATTALI, NOISE: THE POLITICAL ECONOMY OF MUSIC 51 (1985). 130 Walser, supra note 106, at 265; see also Moore, supra note 4, at 76; WILLIAM WEBER, MUSIC AND THE MIDDLE CLASS: THE SOCIAL STRUCTURE OF CONCERT LIFE IN LONDON, PARIS AND VIENNA BETWEEN 1830 AND 1848 (2d ed., 2004). 131 See ALAN P. MERRIAM, THE ANTHROPOLOGY OF MUSIC 260 (1964). 132 See Wolff, supra note 110, at 5. 133 Jaszi, supra note 82 at 47. 134 See Burkholder, Borrowing, supra note 64. 135 See, e.g., Hampel, supra note 53.



136 See Burkholder, Uses, supra note 97, at 861; Burkholder, Borrowing, supra note 64 (defining borrowing); J. PETER BURKHOLDER, ANDREAS GIGER & DAVID C. BIRCHLER, EDS,, MUSICAL BORROWING: AN ANNOTATED BIBLIOGRAPHY (last updated 2003), available at http://www.music.indiana.edu/borrowing/. 137 Wolff, supra note 110, at 2. 138 See, e.g., Bleistein v. Donaldson Lithographing, 188 U.S. 239, 248 (1903); Rockford Map v. Directory Service, 768 F.2d 145, 148 (1985); Northern Music, 105 F. Supp. at 400; L. Batlin, 536 F.2d at 491. 139 See Robert Walser, Out of Notes: Signification, Interpretation, and the Problem of Miles Davis, 77 MUS. QTLY 343, 347-348 (1993); Gary Tomlinson, Cultural Dialogics and Jazz: A White Historian Signifies, in DISCIPLINING MUSIC: MUSICOLOGY AND ITS CANONS 64, 78 (Katherine Bergeron & Philip V. Bohlman eds., 1992). 140 Tomlinson, supra note 139, at 75-76. 141 Id. at 76-77. 142 See Walser, supra note 139, at 348. 143 Id.; Bohlman, supra note 105, at 430 fn. 45. 144 See Geoffrey Block, The Broadway Canon from Show Boat to West Side Story and the European Operatic Ideal,, 11 J. MUSICOLOGY 525, 525 (1993). 145 See Baker, supra note 39, at 62; Zappa with Occhiogrosso, supra note 29, at 201. 146 See David Clarke, Musical Autonomy Revisited, in THE CULTURAL STUDY OF MUSIC: A CRITICAL INTRODUCTION 159, 161 (Martin Clayton, Trevor Herbert & Richard Middleton eds., 2003); Ellen T. Harris, Integrity and Improvisation in the Music of Handel, 3 19TH CENTURY MUSIC 301, 301 (1990). 147 See Walser, supra note 106, at 265. 148 Simon J. Bronner, Reading Consumer Culture, in CONSUMING VISIONS: ACCUMULATION AND DISPLAY OF GOODS IN AMERICAN 1880-1920 at 13-53 (Simon J. Bronner ed., 1989); see also Regina Lee Blaszczyk, The Aesthetic Movement: China Decorators, Consumer Demand, and Technological Change in the American Pottery Industry, 1865-1900, 29 WINTERTHUR PORTFOLIO 121, 122 (1994). 149 See Wolff, supra note 110, at 5; TIA DENORA, AFTER ADORNO: RETHINKING MUSIC SOCIOLOGY 29 (2003). 150 Levine, supra note 122, at 57, 192; Walser, supra note 106, at 281; JAMES H. JOHNSON, LISTENING IN PARIS: A CULTURAL HISTORY (1995). 151 Peter Burkholder, Museum Pieces: The Historicist Mainstream in Music of the Last Hundred Years, 2 J. MUSICOLOGY 115, 119 (1983) (hereinafter, “Burkholder, Museum”); Levine, supra note 122, at 222. 152 Walser, supra note 106, at 284; Levine, supra note 122, at 192.). 153 See Burkholder, Museum, supra note 151. 154 Weber, supra note 9, at 16; WILLIAM WEBER, THE RISE OF MUSICAL CLASSICS IN EIGHTEENTH-CENTURY ENGLAND 2 (1992). 155 Weber, supra note 9, at 16.. 156 Id.; see also Levine, supra note 122, at 57. 157 Walser, supra note 106, at 265 (citations omitted); see also Eric Hobsbawm, Inventing Traditions, in THE INVENTION OF TRADITION 1-14 (Eric Hobsbawm & Terence Ranger eds., 1983). 158 See Weber, supra note 9, at 16. 159 Eric Hobsbawm, Mass-Producing Traditions: Europe, 1870-1914, in THE INVENTION OF TRADITION 263, 263, 303 (Eric Hobsbawm & Terence Ranger eds., 1983). 160 See Robert Fink, Elvis Everywhere: Musicology and Popular Music Studies at the Twilight of the Canon, 16 AM. MUS. 135, 141 (1998); Parakilas, supra note 5, at 4. 161 See Weber, supra note 9, at 6. 162 Id.; see also Block, supra note 144, at 526. 163 See Block, supra note 144, at 526-527. 164 Burkholder, Museum, supra note 151, at 117. 165 Id. at 127. 166 Weber, supra note 9, at 18-19. 167 Id. at 19-20. 168 Id. at 16. 169 Id. at 12; see also EDWARD W. SAID, MUSICAL ELABORATIONS 4 (1991); Attali, supra note 129, at 68-69. 170 Weber, supra note 9, at 12. 171 Id. 172 Id. at 13. 173 See Said, supra note 169, at 2. 174 Burkholder, Museum, supra note 151, at 119. 175 Id. 176 Id. 177 Id. 178 See Sanford Levinson & J.M. Balkin, Essay/Book Review: Law, Music, and Other Performing Arts, 139 U. PA. L. REV. 1597, 1627 (1991). 179 Id. at 1643. 180 See DANIEL BARENBOIM & EDWARD W. SAID, PARALLELS AND PARADOXES: EXPLORATIONS IN MUSIC AND SOCIETY 126-127 (Ara Guzelimian ed., 2002).



181 See DEREK BAILEY, IMPROVISATION: ITS NATURE AND PRACTICE IN MUSIC 27-28 (1992). 182 See Burkholder, Museum, supra note 151, at 120. 183 Id. 184 Id. 185 Id. at 121-128. 186 See Levinson & Balkin, supra note 178, at 1643. 187 Burkholder, Borrowing, supra note 64, at § 9; Jaszi, supra note 82, at 48; John Carlin, Culture Vultures: Artistic Appropriation and Intellectual Property Law, 13 COLUM-VLA J.L. & ARTS 103 (1988). 188 See Levinson & Balkin, supra note 178, at 1635. 189 See Burkholder, Museum, supra note 151. 190 Id .at 125. 191 Id at 116; Robert R. Roberts, Gilt, Gingerbread, and Realism: The Public and Its Taste, in THE GILDED AGE: A REAPPRAISAL 169, 173 (H. Wayne Morgan ed., 1963); Levine, supra note 122, at 70. 192 Walser, supra note 106, at 301; Theodor W. Adorno, Bach Defended Against His Devotees, in 133, 136 PRISMS (1981). 193 See John von Rhein, Classical Record Sales, CHICAGO TRIB., Feb. 2, 2002, at C1; David Bauder & Charles Ward, American Orchestras Not The Recording Stars They Used To Be, HOUSTON CHRON., Sept. 18, 1996. 194 Burkholder, Museum, supra note 151; see also Moore, supra note 4, at 78. 195 See Burkholder, Borrowing, supra note 64, at § 1; Burkholder, Uses, supra note 97; Hampel, supra note 53, at 584-585. 196 Burkholder, Uses, supra note 97, at 851; see also J. PETER BURKHOLDER, ALL MADE OF TUNES: CHARLES IVES AND THE USES OF MUSICAL BORROWING (1995). 197 See Burkholder, Uses, supra note 97, at 858. 198 John T. Winemiller, Recontextualizing Handel’s Borrowing, 15 J. MUSICOLOGY 444, 446 (1997) (hereinafter, “Winemiller, Recontextualizing”); see also John T. Winemiller, Handel’s Borrowing and Swift’s Bee: Handel’s ‘Curios’ Practice and the Theory of Transformative Imitation (Ph.D. Dissertation, University of Chicago, 1994); George J. Buelow, The Case for Handel’s Borrowings: The Judgment of Three Centuries, in HANDEL TERCENTENARY COLLECTION 61, 62 (Stanley Sadie & Anthony Hickes eds., 1987); John H. Roberts, Why Did Handel Borrow?, in HANDEL TERCENTENARY COLLECTION 83, 91 (Stanley Sadie & Anthony Hickes eds., 1987); John H. Roberts, Handel and Vinci’s ‘Didone Abbandonata’: Revisions and Borrowings, 68 MUS. & LETTERS 141 (1987) . 199 See Percy Robinson, Was Handel a Plagiarist? 80 MUS. TIMES 573 (1939). 200 See Burkholder, Borrowing, supra note 64, at § 11. 201 See Winemiller, Recontextualizing, supra note 198, at 454; Harris, supra note 146, at 305. 202 Hugh Arthur Scott, Indebtedness in Music, 13 MUS. QTLY 497, 499 (1927); Winemiller, Recontextualizing, supra note 198. 203 Burkholder, Borrowing, supra note 64, at § 1. 204 Scott, supra note 202, at 497. 205 Id; see also Lenneberg, supra note 117, at 231. 206 See Burkholder, Uses, supra note 97, at 854; see also J. Peter Burkholder, “Quotation” and Emulation: Charles Ives’s Uses of His Models, 71 MUS. QTLY 1, 19 (1985). 207 See Christopher A. Reynolds, The Counterpoint of Allusion in Fifteenth-Century Masses, 45 J. AM. MUSICOLOGICAL SOC’Y 228, 228 (1992). 208 See Karl Beiringer, Artistic Interrelations of the Bachs, 36 MUS. QTLY 363 (1950); CHRISTOPH WOLFF ET AL., THE NEW GROVE BACH FAMILY (1983). 209 Scott, supra note 202, at 501 (noting extensive self-borrowing by Bach); J.A. Westrup, Bach’s Adaptations, 11 STUDIA MUSICOLOGICA ACADEMIAE SCIENTIARUM HUNGARICAE 517, 517 (1969). 210 James Ladewig, Bach and the Prima prattica: The Influence of Frescobaldi on a Fugue from the Well-Tempered Clavier, 9 J. MUSICOLOGY 358 (1991); Michael Talbot, A Further Borrowing from Albinoni: The C Major Fugue BWV 946, in DAS FRÜHWERK JOHANN SEBASTIAN BACHS 142, 142 (Karl Heller & Hans-Joachim Schulze eds., 1995); Steven Zohn & Ian Payne, Bach, Telemann, and the Process of Transformative Imitation in BWV 1056/2 (156/1), 17 J. MUSICOLOGY 546, 547-548 (1999); NORMAN CARRELL, BACH THE BORROWER 13 (1967). 211 Robert Hill, Johann Sebastian Bach’s Toccata in G Major BWV 916/I: A Reception of Giuseppe Torelli’s Ritornello Concerto Form, in DAS FRÜHWERK JOHANN SEBASTIAN BACHS 162, 162 (Karl Heller & Hans-Joachim Schulze eds., 1995); see also Leslie D. Paul, Bach as Transcriber, 34 MUS. & LETTERS 306 (1953). 212 Werner Breig, Composition as Arrangement and Adaptation, in THE CAMBRIDGE COMPANION TO BACH 154, 154 (John Butt ed., 1997). 213 See Stephen L. Clark, C.P.E. Bach and the Tradition of Passion Music in Hamburg, 16 EARLY MUS. 533, 534 (1988); Stephen L. Clark, The Letters from Carl Philipp Emanuel Bach to Georg Michael Telemann, 3 J. MUSICOLOGY 177 (1984). 214 Charles Rosen, Influence: Plagiarism and Inspiration, 4 19TH-CENTURY MUS. 87, 89 (1980). 215 Philip Keppler, Jr., Some Comments on Musical Quotation, 42 MUS. QTLY 473, 473 (1956). 216 217 Burkholder, Borrowing, supra note 64, at § 11; Scott, supra note 202, at 501. 218 Scott, supra note 202, at 503-504; Alexander L. Ringer, Clementi and the “Eroica”, 47 MUS. QTLY 454, 455 (1961). 219 Scott, supra note 202, at 501. Schubert also borrowed from a song he composed for his String Quartet No. 14 in D Minor. James Wierzbicki, Sampling and Quotation, ST. LOUIS POST-DISPATCH, Apr. 28, 1991. 220 Keppler, supra note 215, at 484.



221 Id. 222 Carolyn Abbate, “Tristan” in the Composition of “Pelleas”, 5 19TH-CENTURY MUSIC 117 (1981) 223 Keppler, supra note 215, at 476. 224 Keppler, supra note 215, at 478. 225 Nigel Nettheim, How the Young Schubert Borrowed from Beethoven 132 MUS. TIMES 330 (1991); Edward Cone, Schubert’s Beethoven, 56 MUS. QTLY 779 (1970); Nicholas Temperley, Schubert and Beethoven’s Eight-Six Chord, 5 19TH -CENTURY MUS. 142 (1981). 226 David Humphreys, Something Borrowed, 138 MUS. TIMES 19 (1997). 227 See Burkholder, Brahms and Twentieth-Century Classical Music, 8 19TH-CENTURY MUSIC 75, 77 (1984). 228 Rosen, supra note 214, at 91, 93; Scott, supra note 202, at 505. 229 Burkholder, Borrowing, supra note 64, at § 11. 230 Joscelyn Godwin, Early Mendelssohn and Late Beethoven, 55 MUS. & LETTERS 272, 272 (1974). 231 Dennis Marshall, Charles Ives’s Quotations: Manner or Substance? 6 PERSP. NEW MUS. 45, 46 (1968); see also Burkholder, Uses, supra note 97; Burkholder, supra note 196. 232 Scott, supra note 202, at 498; Burkholder, Borrowing, supra note 64, at § 12. 233 Scott, supra note 202, at 498. 234 See Burkholder, Borrowing, supra note 64, at § 12. 235 See Joseph N. Straus, Recompositions by Schoenberg, Stravinsky, and Webern, 73 MUS. QTLY 301, 301 (1986). 236 Wierzbicki, supra note 219. 237 Id. 238 Id. 239 Id. 240 Id. 241 James Wierzbicki, Sampling and Quotation, ST. LOUIS POST-DISPATCH, Nov. 21, 1993. 242 Id. 243 Borrowing, supra note 64, at § 11. 244 See Jessica Litman, Innovation and the Information Environment: Revising Copyright Law for the Information Age, 75 OR L. REV. 19, 22-23 (1996). 245 See Jeffrey Kallbert, Chopin in the Marketplace: Aspects of the International Music Publishing Industry in the First Half of the Nineteenth Century: Part I: France and England, 39 NOTES 535, 536 (1983) 246 See Garofalo, supra note 11, at 321. 247 Id. 248 Id.; see also Charles Hamm, “After the Ball”; or The Birth of Tin Pan Alley, in YESTERDAYS: POPULAR SONG IN AMERICA 284, 285-286 (1983); Kallbert, supra note 245, at 536. 249 Garofalo, supra note 11, at 322. 250 See Winemiller, Recontextualizing, supra note 198. 251 See Bowen, supra note 4, at 151. 252 See Winemiller, Recontextualizing, supra note 198, at 446. A number of copyright cases underscore such views. See, e.g., Carte v. Duff, 25 F. 183, 185 (S.D.N.Y. 1885). 253 See Fantasy v. Fogerty, 94 F.3d 553 (1996). 254 See Burkholder, Borrowing, supra note 64, at §9. 255 See Winemiller, Recontextualizing, supra note 198, at 447. 256 Id. at 448-449; see also Howard Mayer Brown, Emulation, Competition, and Homage: Imitation and Theories of Imitation in the Renaissance, 35 J. AM. MUSICOLOGICAL SOC’Y 1 (1982); G.W. Pigmann III, Versions of Imitation in the Renaissance, 33 RENAISSANCE QTLY 1 (1980); but c.f. Honey Meconi, Does Imitatio Exist?, 12 J. MUSICOLOGY 152 (1994). 257 Rosen, supra note 214, at 88. 258 See Breig, supra note 212, at 154. 259 See GARY TOMLINSON, MONTEVERDI AND THE END OF THE RENAISSANCE 33 (1987). 260 See Brown, supra note 256. 261 Moore, supra note 4, at 62; Valerie Woodring Goertzen, Setting the Stage: Clara Schumann’s Preludes, in IN THE COURSE OF PERFORMANCE: STUDIES IN THE WORLD OF MUSICAL IMPROVISATION 237, 239 (Bruno Nettl with Melinda Russell eds., 1998). 262 See David Delgado, Lost Art, HARVARD MAG. (Oct. 2002); Improvisation with Robert Levin, NAT’L PUB. RADIO, NPR Performance Today, Nov. 24, 1999. 263 Philip Tagg, Open Letter: ‘Black Music’, ‘Afro-American Music’ and ‘European Music’, 8 POP. MUS. 285, 290 (1989); George E. Lewis, Improvised Music after 1950: Afrological and Eurological Perspectives, 16 BLACK MUS. RES. J. 91, 102, 110 (1996). 264 Bailey, supra note 181, at 19; 29-38; see also Tagg, supra note 263, at 297 fn. 17. 265 Moore, supra note 4, at 63. 266 Id. at 79. 267 Id. 268 See Winemiller, Recontextualizing, supra note 198, at 470. 269 Garofalo, supra note 11, at 39.



270 John Shepherd, A Theoretical Model for the Sociomusicological Analysis of Popular Musics, 2 POP. MUS. 145. 150 (1982); SAMUEL A. FLOYD, JR., THE POWER OF BLACK MUSIC: INTERPRETING ITS HISTORY FROM AFRICA TO THE UNITED STATES (1995); LAWRENCE W. LEVINE, BLACK CULTURE AND BLACK CONSCIOUSNESS 190-297 (1977). 271 See Cheryl L. Keyes, At the Cross Roads: Rap Music and Its African Nexus, 40 ETHNOMUSICOLOGY 223, 241 (1996). 272 Winemiller, Recontextualizing, supra note 198, at 463. 273 See Rose, supra note 38, at 88-89; Bartlett, supra note 56, at 639. 274 Walser, supra note 1, at 208; Small, supra note 12, at 391; Luke O. Gillespie, Literacy, Orality, and the Parry-Lord “Formula”: Improvisation and the Afro-American Jazz Tradition, 22 INT’L REV. AESTHETICS & SOCIOLOGY OF MUS. 147 (1991). 275 Rose, supra note 38, at 65-66; Ringer, supra note 27; Keyes, supra note 271, at 231. 276 Rose, supra note 38, at 65. 277 See Agawu, supra note 66, at 81. 278 HENRY LOUIS GATES, JR., THE SIGNIFYING MONKEY: A THEORY OF AFRICAN-AMERICAN LITERARY CRITICISM 44 (1988); see also ROGER ABRAMS, DEEP DOWN IN THE JUNGLE (1970); Elizabeth Wheeler, ‘Most of My Heroes Don’t Appear on No Stamps’: The Dialogics of Rap, 11 BLACK MUS. RES. J. 193, 196-197 (1991). 279 See Gates, supra note 278, at 110. 280 Id. 281 Id. See also James A. Snead, On Repetition in Black Culture, 15 BLACK AM. LIT. FORUM 146, 149-150 (1981). 282 Id. at 52; see also Baker, supra note 111, at 7. 283 See Gates, supra note 278, at 88. 284 See Baker, supra note 55, at 183. 285 See Wheeler, supra note 278, at 199. 286 Houston A. Baker, Jr. Hybridity, the Rap Race, and Pedagogy for the 1990s, 11 BLACK MUS. RES. J. 217, 222-223 (1991). 287 Gates, supra note 278, at 45. 288 See Russell A. Potter, Not the Same: Race, Repetition, and Difference in Hip-Hop and Dance Music, in MAPPING THE BEAT: POPULAR MUSIC AND CONTEMPORARY THEORY 31, 33 (Thomas Swiss, John Sloop & Andrew Herman eds., 1998). 289 See James Snead, Repetition as a Figure of Black Culture, in BLACK LITERATURE AND LITERARY THEORY 59, 72 (Henry Louis Gates, Jr. ed., 1984). 290 What some courts refer to as rhythm is at times actually time signature. See Wihtol v. Wells, 231 F.2d 550, 552 (7th Cir. 1956); Northern, 105 F. Supp. at 397, 400); Hein v. Harris, 175 F. 875, 876 (S.D.N.Y. 1910). See also Ronald P. Smith, Arrangements and Editions of Public Domain Music: Originality in a Finite System, 34 CASE W. RES. 104, 117-118 (1983). 291 Further, these three elements are by no means the only elements of a musical work that might be relevant to analysis of copyright infringement. See Aaron Keyt, Comment: An Improved Framework for Music Plagiarism Litigation, 76 Calif. L. Rev. 421, 432 (1988). 292 See Agawu, supra note 30, at 15. 293 See Keyt, supra note 291, at 430.. 294294 See Agawu, supra note 66, at 64. 295 Northern Music, 105 F. Supp. at 400 (noting that rhythm is simply a matter of tempo [sic time signature] and that originality in rhythm is a rarity, if not an impossibility). Tempo is actually the speed or pace of a musical piece and is related to meter. See Justin London, Tempo, NEW GROVE DICTIONARY. 296 See Northern Music, 105 F. Supp. at 400; WILLIAM W. FISHER III, PROMISES TO KEEP: TECHNOLOGY, LAW AND THE FUTURE OF ENTERTAINMENT 39 (2004) (“Suppose I write a folk song, I select a rhythm (4/4) . . .”). 297 See London, supra note 27. 298 Syncopation and polyrhythms arise from the interaction of rhythm and meter. See Lord, supra note 27. 299 See Walser, supra note 1, at 201-204. 300 See Geneva Smitherman, “The Chain Remain the Same”: Communicative Practices in the Hip Hop Nation, 28 J. BLACK STUDIES 3, 4 (1997). 301 See Acuff-Rose, 510 U.S. at 569. 302 See Walser, supra note 1, at 204. 303 Dimitriadis, supra note 45, at 182. 304 Weber, supra note 9, at 7. 305 Id. 306 Dimitriadis, supra note 45, at 180. 307 Rose, supra note 38, at 73. 308 See Jessica D. Litman, Copyright, Compromise, and Legislative History, 72 CORNELL L. REV. 857 (1987). 309 William M. Landes and Richard A. Posner, An Economic Analysis of Copyright, 18 J. LEG. STUD. 325 (1989); Henry Hansmann and Marina Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. LEG. STUD. 95 (1997); Arnold Plant, The Economic Aspects of Copyright in Books, 1 ECONOMICA 167 (1934); Robert M. Hurt & Robert M. Schuchman, The Economic Rationale of Copyright, 56 AM. ECON. REV. 421 (1966). See also H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909), reprinted in 6 LEGISLATIVE HISTORY OF THE 1909 COPYRIGHT ACT (E. Fulton Brylawski ed., 1976 (hereinafter, “1909 House Report”). 310 See Blocking, supra note 23. 311 _____________, Copyright on Catfish Row: Control and Compensation in Porgy and Bess (2004) (manuscript on file with author) (hereinafter, “Control”).



312 Id.; 1909 House Report, supra note 309, at 7. 313 See LAWRENCE LESSIG, FREE CULTURE (2004). 314 See Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, § 102, 112 Stat. 2827, 2827-28 (codified as amended at 17 U.S.C. §§ 302, 304 (2003) (amending 17 U.S.C. §§ 302, 304 (1976)); see also Arlen W. Langvardt & Kyle T. Langvardt, Unwise or Unconstitutional?: The Copyright Term Extension Act, the Eldred Decision, and the Freezing of the Public Domain for Private Benefit, 5 MINN. INTELL. PROP. L. REV. 193 (2004). 315 See Craig W. Dallon, The Problem with Congress and Copyright Law: Forgetting the Past and Ignoring the Public Interest, 44 SANTA CLARA L. REV. 365, 437 (2004). 316 See Jimmy A. Frazier, Comment: On Moral Rights, Artist-Centered Legislation, and the Role of the State in Art Worlds: Notes on Building a Sociology of Copyright Law, 70 TUL. L. REV. 313, 335 (1995). 317 See H.R. No. 3, 21st Cong., 2d Sess. 1-2 (1830) (hereinafter, “1830 House Report”). 318 See 1909 House Report, supra note 309, at 7. 319 See Blocking, supra note 23; see also Shubha Ghosh, Deprivatizing Copyright, 54 CASE W. RES. 387, 439 (2003); Leval, supra note 91, at 1107. 320 Blocking, supra note 23. 321 See 1909 House Report, supra note 309, at 7. 322 See Blocking, supra note 23; Control, supra note 311. 323 See Fisher, supra note 295, at 199-258; see also Steven Shavell and Tanguy van Ypersele, Rewards versus Intellectual Property Rights, 44 J.L. & ECON. 525 (2001); Hurt & Schuchman, supra note 309, at 426; Julio H. Cole, Patents and Copyrights: Do the Benefits Outweigh the Costs?, 15 J. LIBERTARIAN STUD. 79, 99-101 (2001); Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 282 (1970). 324 See, e.g., RUTH TOWSE, CREATIVITY, INCENTIVE, AND REWARD : AN ECONOMIC ANALYSIS OF COPYRIGHT AND CULTURE IN THE INFORMATION AGE 21 (2001); Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of Rights Management, 97 MICH. L. REV. 462, 505 fn. 160 (1998-1999); Mark S. Nadel, Questioning the Economic Justification for (and thus Constitutionality of) Copyright Law’s Prohibition Against Unauthorized Copying: §106 (January 2003), AEI-Brookings Joint Center Related Publication 03-1. 325 See Kohn & Kohn, supra note 49, at 1495. 326 See, e.g., Note, A New Spin on Music Sampling: A Case for Fair Pay, 105 HARV. L. REV. 726 (1992); Baroni, supra note 54, at 9; Percifull, supra note 53, at 1286. 327 These commercial practices may be viewed as one way of reducing transaction costs within existing copyright statutory and regulatory frameworks. 328 See Joseph P. Liu, Regulatory Copyright. North Carolina Law Review, forthcoming 2004, available at http://ssrn.com/abstract=558681. 329 See also Control, supra note 311. 330 Kohn & Kohn, supra note 49, at 444-448. 331 Id. at 702-703. 332 See Brown, supra note 53, at 1953-1955; Kohn & Kohn, supra note 49, at 1477-1548. 333 Mechanical licenses give the right to reproduced copyrighted music on a mechanical device. Kohn & Kohn, supra note 49, at 677. Mechanical licenses have been used for music played on a number of devices, including music boxes, player piano rolls, phonograph records, compact disks and computer disks and MIDI files. Id. at 677-682. Mechanical licenses were first made possible by the Copyright Act of 1909 (the “1909 Act”), in which Congress gave copyright owners the exclusive right to make mechanical reproductions of music. Id. at 682. 334 Under the 1909 Act, Contgress established a compulsory license system for player piano rolls that permitted mechanical reproductions of songs with payment to the copyright owner of a fixed royalty at the statutory rate of 2 cents per unit. Id. at 683. Virtually all mechanical licenses are negotiated between the parties and do not conform to the statutory requirements of compulsory licenses, except with respect to payment, since the statutory rate remains a maximum. Kohn & Kohn, supra note 49, at 683-684. 335 17 U.S.C. §§ 115(a)(1) (2003); see also Kohn & Kohn, supra note 49, at 1495. 336 See Brown, supra note 53, at 1951. 337 Kohn & Kohn, supra note 49, at 697; 1976 House Report, supra note 8, at 109. This language is reflected in Section 115(a)(2) of the Copyright Act. See 17 U.S.C. § 115(a)(2) (2003). 338 Kohn & Kohn, supra note 49, at 697. 339 See Chris Johnstone, Underground Appeal: A Sample of the Chronic Questions in Copyright Law Pertaining to the Transformative Use of Digital Music in a Civil Society, 55 J. COPYRIGHT SOC’Y U.S.A. 569, 594 (2004); Ian Ayres & J.M. Balkin, Legal Entitlements as Auctions: Property Rules, Liability Rules, and Beyond, 106 YALE L.J. 703 (1996); Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972). 340 See Ayres & Balkin, supra note 339, at 704 (noting that property rules discourage nonconsensual takings). 341 See Robert P. Merges, Toward a Third Intellectual Property Paradigm: Comments: Of Property Rules, Coase, and Intellectual Property, 94 COLUM. L. REV. 2655, 2655 (1994). 342 Id. 343 Id. 344 A property rule by its nature implicitly assumes that borrowing is not the norm and should occur only with permission. In contrast, a liability rule implicitly assumes that borrowing is the norm and makes an ex post determination as to compensation.



345 See Cass R. Sunstein, Switching the Default Rule, 77 N.Y.U. L REV. 106, 112 (2002). 346 Blocking, supra note 23. 347 A number of specific compulsory licensing proposals have been advanced. See, e.g,, Baroni, supra note 54. 348 This sampling framework would require amendment of the Copyright Act. Whether a sample is recognizable should be based on the average listener of a work, which mirrors the existing standards used to determine substantial similarity. See Arnstein, 154 F.2d at 473 (noting that ordinary lay person is the standard used to determine substantial similarity). Any hip hop artist choosing to receive a license based on the sampled work not being recognizable would bear the burden of showing that a basis existed for this assumption in the event that the hip hop license is later challenged. 349 In all instances, in the event of a dispute or court case, the sampler would bear the burden of proof of showing that a reasonable basis existed for the sampler’s categorization of the sampling request upon which the hip hop license was based and be subject to severe penalties in the event that this categorization did not have a reasonable basis. 350 Rewards systems permit compensation of creators without creating rights of control with respect to intellectual property rights. See Shavell & Ypersele, supra note 323. 351 Fisher, supra note 295, at 199-258. 352 Courts have generally found either quantitatively trivial portions or unrecognizable uses of existing to constitute de minimis use. See Latham, supra note 87, at 140-141. 353 See 17 U.S.C. §§ 115(a)(1) (2003). The standard for nonrecognizable samples makes sense because the source of the sample is not recognizable to the average listener in the work created through sampling. As a result, a hip hop licensing system would ensure that the creator of the sampled work received compensation for use of such creator’s work. Chris Johnstone’s proposal is based upon a distinction between transformative samplings and “piracy” and would impose a tax for the “general privilege to sample.” See Johnstone, supra note 337, at 595. Although a proposed tax might be feasible, the distinction between transformative and nontransformative samplings is problematic in the music context. Rather than distinguish between transformative and nontransformative borrowings, Johnstone’s tax approach could be applied to all sampling and creators be reimbursed based on the type of sampling that has occurred (e.g., nonrecognizable, de minimis and recognizable and not de minimis and recognizable), with the least compensation being paid creators for nonrecognizable samples and the most paid them for non de minimis recognizable samples. 354 This distinction parallels existing standards with respect to de minimis samples. The statutory language should make clear that looping does not diminish a de minimis use as long as the original piece sampled would be considered de minimis. 355 One potential way to deal with the concerns of sampled artists would be to set specific and limited instances in which copyright owners would be able to deny hip hop compulsory licenses for recognizable samples that are not de minimis and that may significantly impact the existing market for the sampled work. When such a market impact exists, a standard based the standard set forth in the 1976 House Report relating to uses that might pervert, distort or travesty the original protected work could be a basis for such a standard. Kohn & Kohn, supra note 49, at 697; 1976 House Report, supra note 8, at 109. 356 See Shavell & Ypersele, supra note 323; Fisher, supra note 295, at 199-258. 357 Copies of compact discs with content available for sampling were distributed in the November 2004 issue of the magazine Wired. See http://www.creativecommons.org/wired. The ethos underlying the distribution of this music is that “true creativity needs to be open, fluid, and alive.” Id. 358 Susan McClary, Rap, Minimalism, and Structures of Time in Late Twentieth-Century Culture 20-21 (1998), The Geske Lectures, College of Fine and Performing Arts, The University of Nebraska—Lincoln.. 359 See Keyt, supra note 291, at 463. 360 See Tagg, supra note 263, at 290.

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