Center for Arts and Cultural Policy Studies
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Intellectual Property and
the Making and Marketing of Music
in the Digital Age


Friday, April 23
Walking on the Other Side of the Law: Sampling, Intellectual Property, and Commerce

Mattin, Independent Basque-based Artist and Editor
Devour Your Limitations
During my talk I will try to explain why I think  the practice of noise & improvisation challenge notions of intellectual property and its foundations: clear delimitation of what is the work and what is not and clear definition of authorship producing a separation between producer and consumer. Intellectual property has grown hand in hand with capitalism as a way of commodifying the intangible, the indefinable, the elusive... as a way of taming culture in order to frame it,  make it stable and to be able to give it a value. Any classification or categorization works as a way of achieving mastery and social control.  But when I think of  improvisation I think of it as elusive liquidity, in Duchamp's and Bergson's lingo, as a matter of 'passages' rather than 'stoppages'. In an improvised concert situation, one throws a sound without knowing what other people will do with it. One of course is aware of the people that one is playing with but basically one is open to anything. Why should it be different when one makes a record? Somebody mentioned the word plagiarism but this is nothing but a capitalist fallacy. As The Comte de Lautréamont said, plagiarism is necessary. Whenever one person takes something and uses it in another context, there is always a level of creativity going on. I do not want to make hierarchies between different levels of creativity. I have invented nothing. All I have done is take from somewhere else, and to think of this as theft is simply applying the logic of the police, which basically is what the notion of authorship does. How can we find ways of dismanteling authorship without ending up in  reproducing “managerial authorship” (an artist or musician capitalising on other's general intellect and activities)?

Marc Perlman,
Brown University
The Difference ‘Traditional’ Makes
Over the past century, technological change has repeatedly acted as a solvent on settled ideas of musical property.  From the player piano to file-sharing, new modes of reproduction and distribution have called into question the existing legal balance between the interests of creators and users.  Whether or not these upheavals produce any change in the law, they reveal a spectrum of opinion ranging from absolute affirmation of creative ownership to vindication of the rights of users—as we see in the debates over sampling. Yet even advocates of the freedom to sample make an exception for traditional music.  For example, Negativland’s Mark Hosler has refused to condone Michel Cretu’s sampling of a Taiwanese folk song in his “Return to Innocence.” Indeed, activists trying to scale down the rigor of copyright protection in the developed world often support expanded property rights in traditional culture.  For several decades now, international jurists and diplomats have been trying to design a treaty that would recognize group rights in folk music.  I will describe the status of this initiative, the stakes involved, and the peculiar history of the debate.

Imani Perry, Princeton University
Remixing Theft: The Matrices of Ownership in an Unequal World 
This is a reconsideration of how the concept of property in artistic production (intellectual, cultural, community) is fundamentally vexed in a social order that is shaped by inequality; in this case, racial inequality in the 20th century U.S. 

Alan Stanbridge, University of Toronto
Don’t Fence Me In: Music, Sampling, and Creativity on the Digital Frontier
John Oswald’s now-famous aphorism – “If creativity is a field, copyright is the fence” – has served as something of a rallying-cry for sampling and collage artists, suggesting a radically expanded vision of the public domain that supersedes outmoded conceptualizations of authorship, prompting calls for a revised approach to issues of copyright and intellectual property. Over the last two decades or more, a diverse range of groups and individuals have actively lobbied for copyright reform, addressing the new and intensified forms of musical creativity that the digital age has engendered. In an era when technological advance has exponentially outstripped legislative change, there can be little doubt about the need for reform of outdated copyright laws, and equally little doubt that standard record industry models, and the laws that protect them, have long exceeded their shelf life. In this paper, however, and in the context of what has become an unhelpfully polarized debate – with conceptual fences firmly in place on both sides of this cultural battleground – I explore the continuing validity of concepts of authorship (although not necessarily those concepts of authorship enshrined in copyright law), querying the often exaggerated claims made on behalf of the creativity and originality inherent in sampling techniques, and addressing critically the intellectual hubris that underlies much anti-copyright, culture jamming rhetoric.

Steinski, Independent Artist
Basic Truths about Copyright and Intellectual Property
There are certain basic truths about the copyright and IP situation in the US (and increasingly, all over the world) which, it seems to me, are ignored when discussing artistic and social concerns in this area; the inequities between corporations and the citizens they threaten so routinely, the control the corporations exert over the lawmaking process, and certain assumptions about human endeavors that have become ubiquitous in Western culture. My presentation will discuss what I see as the realities of the situation and what I consider to be appropriate responses.

Saturday, April 24

Panel I: The Nature of the Work: Sampling, Improvisation, Oral Traditions, and the “Score”

Seth Cluett, Princeton University
Site-specific and unspecified: the problematics of alternative production spaces and sound sources at the nexus of intellectual property and creative practice
The ‘what’ and the ‘where’ of contemporary sound practice are in flux. Art galleries, clubs, and a wide array of both virtual and tangible spaces have become viable and likely performance venues for composers and artists creating sound works outside the concert hall. Works for loudspeakers, unspecified forces, or non-human sound making elements have become commonplace in our pervasively technologized landscape. What are the implications of these expanded notions of performance space and instrumental forces for issues related to intellectual property? How could a consideration of these progressive practices help us clearly assess the needs of the creative class as mobile and portable media alter the production and presentation landscape?

Peter Manuel,
City University of New York
Oral Tradition, Copyright, and the “Song”: Case Studies from World Music
Commercial mainstream Euro-American popular music over the course of the last century has been dominated by the institution of the “song,” connoting an original and legally protectable composition, generally with an original melody and chordal accompaniment and a known author or authors. Such a song format also became standard in most commercial popular music genres outside this mainstream, as mass-mediated hybrids proliferated throughout the world.  Many such popular music styles, however, developed out of local oral traditions—especially “folk” idioms--involving compositional techniques, conceptions of authorship, and musical forms incompatible with modern notions of copyright.  In some cases these involved the use of stock melodies which could be recycled with new lyrics; in other genres, songs typically evolved and mutated as musicians freely altered them; in other cases, colorful individual renditions blurred distinctions between compositions and interpretations. In several instances, when questions of ownership were ambiguous and came to involve prodigious sums of money, high-profile lawsuits ensued, in the process exposing the underlying and conflicting notions of aesthetics and compositional norms.  In this presentation, I explore a set of case studies, from flamenco, Cuban music, salsa, and Bollywood film music, drawing on my own experiences as a copyright consultant.  Collectively, the examples illustrate the sorts of tensions and problems that can ensue when oral music traditions collide with modern conceptions of authorship, ownership, and musical form.

Zeena Parkins, Multi-instrumentalist, Composer and Improvisor
The genie out of the bottle:  Identification and Ownership: A personal journey surfing technology, translations, performance and collaboration
Zeena Parkins is well-known as a pioneer of the electric harp, has also extended the language of the acoustic harp with the inventive use of unusual playing techniques, preparations, and layers of digital and analog processing. Zeena makes use of anything within reach as a possible tool with which she can enhance the sonic capabilities of her harps. She has appeared on over 70 CD's and in hundreds of concerts in both large and small spaces all over the world, and is a sought-after collaborator.

Eric Lewis,
Professor of Philosophy at McGill University

Panel II: Distribution, Promotion, and Consumption in the Media Age

Brian Brandt, MODE Records
MODE @ 25: An independent label meets changes in materials, market, production, and distribution
Reflections on running and distributing a niche market independent label for 25 years, beginning with LPs through CDs, DVDs and downloads – and maybe back to LPs again. The apparent quandary of how to maintain quality production values in today's seemingly "it's good enough" attitude and market. How distribution, marketing and the industry itself has changed in recent years and the challenges that record labels and artists face today, and why record labels are still relevant.

Wayne Marshall, Massachusetts Institute of Technology
Brave New World, With No Money In It?
The advent of a variety of online tools for distributing music, whether for a fee or free, has allowed independent artists of all stripes to reach vastly wider audiences than was possible just a few years ago. At a moment of turbulence and transition in the mediascape, independent producers appear to be experimenting with and, in many cases, eagerly embracing a variety of platforms and approaches. The profusion of “web 2.0” style sites for distributing music — including SoundCloud, Fairtilizer, and BandCamp, but also MySpace and YouTube — offers a great number of options for those operating outside the traditional “music industry.” These services generally provide tools for facilitating “discovery” (or, the use of social networking features to help one’s music find listeners, and vice versa), distribution, robust forms of tracking, and in some cases, sales. Notably, many artists and independent labels/collectives are employing mixed methods for distributing their work and attempting to seek or share compensation with audiences and “peers” of all sorts (including DJs, bloggers, and journalists). My presentation will focus on the range of approaches with which electronic-oriented producers have been experimenting, and the ways in which particular platforms facilitate (as well as limit) one’s means for monetizing recordings or for promoting other forms of earning a musical livelihood. Surveying the scene for digital distribution on today’s social web and global DJ/remix scene, I will also offer some ethnographic perspectives on the perceived efficacy of such tools.

Kembrew McLeod, University of Iowa
Licensed to Ill: The Relationship Between the Current Copyright Clearance System and Alternative Licensing Systems
The belief that a downstream creator needs to license even the most minor of uses is based on the assumption that every atom of a particular work belongs to the original creator or copyright owner—regardless of the way it has been recombined with elements of other works to create something new. This amounts to a kind of one-drop rule where a new work containing a fragment of another work is legally tainted, no matter how it has been transformed or recontextualized. In reaction to this state of affairs, alternative licensing systems like Creative Commons have emerged as not just a way to legally facilitate sharing, but as a symbolic gesture—a communicative act that signals a particular perspective on cultural production and creativity. Drawing on a broad array of interview research and personal experience, McLeod will spend as much time discussing the culture of clearance as those alternative copyright licensing systems in order to show how they are mutually constitutive of each other. Fair use will also be discussed, along with the broader media systems that have largely not adapted to these new (and old) innovations in copyright. Fair use has helped carve out more elbowroom for free expression and creativity in the documentary world and elsewhere, but it only fixes a portion of the problem—and the same thing can be said about Creative Commons. McLeod’s experiences with his co-produced documentary Copyright Criminals and his book Freedom of Expression® will be used as points of departure to talk about the broader context. This talk advocates a more democratic system of checks and balances developed by real people who are directly affected by copyright—creators, active audiences, media industries, etc. We desperately need to design a copyright system that makes sense in a relatively decentralized world, a landscape populated by millions of independent creators. Otherwise, the much-heralded age of media democracy will merely be a hollow promise.

Priscilla J. (“Sally”) Mattison, Bernard M. Resnick, Esq., P.C.
Independent Artists in the Digital Age – What Gets Made, Who Gets Heard, Who Gets Paid?
It is a turbulent time for musicians and others in the music and music-related businesses.  This presentation, given from the perspective of an entertainment law practitioner, will briefly reflect on various aspects of music currently being made by independent artists before turning to consider what music is actually being heard by the broader public and which musicians are being paid for their music. Today’s digital context affects what music gets made in numerous ways – including who seeks to make music, how musicians seek to pay for their recordings, how much funding they seek, how musicians collaborate, when they record music, and what inputs they use. Similarly, the digital context affects what music is heard.  New outlets for music have arisen, and there are new ways -- and reasons -- for musicians to pursue traditional outlets. A vast array of digital services and techniques are available for marketing and promotion. An interactive audience can have more influence on what music gets heard.  Industry gatekeepers may use new digital techniques to decide what music will be more broadly exposed. Finally, the digital context affects which musicians get paid.  Although payments for various types of uses of sound recordings and compositions are set forth by statute in some cases and industry custom in other cases, the reality of who gets paid in the digital era, and how much, is more complex. Numerous factors – such as controlling 100% of one’s sound recordings and compositions, being adept at marketing, including social media, being a great live performer, and being in a position to identify and take advantage of a variety of business opportunities – can contribute to a musician getting paid.  To further elaborate on this topic, I will consider two related questions – in which circumstances are musicians not getting paid, and which musicians are getting paid “enough”?      

Richard Stumpf,
Cherry Lane Publishing


Panel III: The Purpose of Copyright: Evolution and Expression in the Commons

Mark Hosler, Negativland
Art and Creativity:  Progress, Changing Attitudes, and Reforms
Mark Hosler is a founding member of the group Negativland, which since 1980 has been creating records, video, radio and live performance using appropriated sound, image and text. The group has been sued twice for copyright infringement and, since those lawsuits, Mark has been aggressively and publicly involved in advocating significant reforms of our nation's copyright laws, with recent visits to Capitol Hill to speak to various senators and congressmen. For this event at Princeton, Mark will give an overview of the progress and changing attitudes he has seen around IP, art, and creativity in 30 years of being involved with these issues.

Tina Piper, McGill University
Separate Voices: IP in Music's Culture
As co-director of Creative Commons Canada I observed limited Canadian uptake of Canadian Creative Common licences.  I undertook an empirical project to understand the reasons for this, focusing primarily on so-called ‘independent’ music labels and artists in Canada, conducting interviews and a survey administered by PopMontreal (a local independent music festival).  I have studied licensing practices, conceptions of property in music and the role of community norms of practice in governing music making in a manner that adds some context to the licensing phenomenon in Canada. I conclude that ‘open’ licensing practices sit within a matrix of artist concerns and that, in some important respects, the phenomenon should neither be overblown nor understated.

Elizabeth Stark, Yale University
Remix Culture vs. Copyright: Can They Coincide in a World of Takedowns?
By many accounts, a wide variety of the remixing that is occurring online is potentially in violation of current copyright law. Yet members of remix communities continue to rework others' works, and are often subject to takedowns along the lines of DMCA notices or automatic blocking via fingerprinting technologies. I will explore the scenario that has emerged in remixing, including the vast disparity between norms and the law, assess the threat that takedowns can pose for remix culture, and examine what can be done to preserve it.
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