This comic lays out 2000 years of musical history. A neglected part of musical history. Again and again there have been attempts to police music; to restrict borrowing and cultural cross-fertilization. But music builds on itself. To those who think that mash-ups and sampling started with YouTube or the DJ’s turntables, it might be shocking to find that musicians have been borrowing—extensively borrowing—from each other since music began. Then why try to stop that process? The reasons varied. Philosophy, religion, politics, race—again and again, race—and law. And because music affects us so deeply, those struggles were passionate ones. They still are.
To understand this history fully, one has to roam wider still—into musical technologies from notation to the sample deck, aesthetics, the incentive systems that got musicians paid, and law’s 250 year struggle to assimilate music, without destroying it in the process. Would jazz, soul or rock and roll be legal if they were reinvented today? We are not sure. Which as you will read, is profoundly worrying because today, more than ever, we need the arts.
Notes from the Talk
Artistic musical expressions like mash-ups and sampling are often thought of as unique and new phenomena emerging from participatory culture in the digital age. However, as James Boyle and Jennifer Jenkins, Professors of Law at Duke University, argue in their recent talk, “remix isn’t America’s future; remix is America’s past.” Boyle and Jenkins drew from their comic book, Theft: A History of Music, in which they tell the story of 2,000 years of musical borrowing.
Boyle and Jenkins chose to tell this story in a comic book format for two reasons. The first was to make scholarship accessible to a wider audience, outside of academia. The second was to use “remix in the service of talking about remix.” In other words, in the book, they use copyright limitations and exceptions within their own writing and art, in order to explain these same phenomena.
Two recent developments in copyright and its applications in the music industry concern Boyle and Jenkins. The more recent is the “Blurred Lines” case, in which a jury found that Robin Thicke and Pharrel Williams infringed on the copyright of “Got To Give it Up” by Marvin Gaye. The verdict was recently upheld by the 9th Circuit. The other development is a lawsuit involving unlicensed sampling of Funkadelic’s “Get Off Your Ass and Jam,” wherein the sample is largely unrecognizable, but the court still ordered that sampling more than one note requires a license. These developments are reflective of Lawrence Lessig’s idea of a “permission culture,” in which every time we “re-make” culture, we need to pay a fee, get a license, or at least ask permission.
Boyle and Jenkins ask the audience to consider the fact that if we had applied today’s legal rules during the times of jazz, blues, and rock 'n roll, we would likely not have these musical genres. Boyle summarizes this point, asking about the future: “what forms of music will we not have, and not know that we didn’t have, because we didn’t have them?” Overall, however, Boyle and Jenkins maintain some optimism for the outlook of music in American culture. They conclude with a quote from their book that expresses this confidence: “The staff of music is long, but it bends to harmony.”