Music Think Tank

In the case of the written word, I can quote a few words from the latest best-seller and know that I am legally protected by the doctrine of fair use. In the case of digital media, the US 6th Circuit Court of Appeals ruled that no such fair use exists at all when it comes to sampling. In the case of the written word, it is possible to quote and rearrange concepts as a form of criticism, satire, parody, or public discourse, but the record industry claims there is no such right when it involves quoting from their music catalogs. In the case of the written word, it is possible to draw inspiration (and characters) from multiple sources and to bring those characters together in a new context to reveal new truths (or at least discussions) about the human condition, but when this is attempted with musical materials (such as Danger Mouse’s The Gray Album), the music industry demands no less than total destruction of all such works.

Whatever freedoms have been won when it comes to the textual world of the printing press have been forfeited when it comes to the digital presses of the musical world, which is surprising because both the written word and the musical sound are fundamentally covered by precisely the same law: copyright. Why should copyright treat one expression, one media so differently than another?

In the US Constitution copyright law is predicated on the belief that such law will have the effect of “promoting science and the useful arts”. It is a bargain, refereed by the government, between a private interest and the public’s interest. The Creative Commons community has argued long an eloquently how much the terms of the bargain have shifted over the past 100 years to favor the private parties over the interests of the public and I shall not repeat those arguments here. But I will point out a voice that made these same arguments in the 1960s, years before modern technologies and a runaway legal system produced the copyright nonsense that is systematically and comprehensively destroying our cultural vitality: Glenn Gould.

Gould knew that music gives voice to the composer, that the instrument gives voice to the artist, and that the concert hall provides a space in which music and artistry can be experienced: a moment of the sublime. More than most artists at the time, Gould recognized the power of a recording studio to honor music and artistry, but also to employ such technology that moments of the sublime can be captured, imagination can become reality, and intention can be expressed beyond the limits of a single space, a single audience, a single moment in time. Such has always been the highest aspiration of any recording project.

But such aspirations are not without their own self-made challenges. As Gould wrote in his essay The Prospects of Recording “Recordings deal with concepts through which the past is re-evaluated, and they concern notions about the future which will ultiumately question even the validity of evaluation.” Gould suggest that the solution to this problem lies not with the composers, performers, or engineers per se, but with the listeners themselves:

At the center of the technological debate, then, is a new kind of listener—a listener more participant in the musical experience. The emergence of this mid-twentieth-century phenomenon is the greatest achievement of the record industry. For this listener is no longer passively analytical; he is an associate whose tastes, preferences, and inclinations even now alter peripherally the experiences to which he gives his attention, and upon whose fuller participation the future of the art of music waits.

He is also, of course, a threat, a potential usurper of power, an uninvited guest at the banquet of the arts, one whose presence threatens the familiar hierarchical setting of the musical establishment. Is it not, then, inopportune to venture that this participant public could emerge untutored from that servile posture with which it paid homage to the status structure of the concert world and, overnight, assume decision-making capacities which were specialists’ concerns heretofore?

We can well imagine why the existing establishment may not welcome such participation from the listening audience, but what about culture itself? Culture should welcome any participation that promotes progress in the arts!

Gould also says this:

The keyword here [in the immediately preceding quotation] is “public.” Those experiences through which the listener encounters music electronically transmitted are not within the public domain. One serviceable axiom applicable to every experience in which electronic transmission is involved can be expressed in that paradox wherein the ability to obtain in theory an audience of unprecedented numbers obtains in fact a limitless number of private auditions. Because of the circumstances this paradox defines, the listener is able to indulge preferences and, through the electronic modifications with which he endows the listening experience, impose his own personality upon the work. As he does so, he transforms that work, and his relation to it, from an artistic to an environmental experience.

Gould’s essay from 1966 ends with this thought: “The audience would be the artist and their life would be art.” But this can never happen as long as copyright law dictates that being a listener makes one a priori eternally beholden to all that is first listened to. Our current copyright regime denies as a fact the very idea of a free culture, because it prohibits that which can be heard from being transformed and transmitted anew, at least not without signing legal agreements every single step of the way. And as many of the cases have shown, even that is not enough, you have to sign and agreement and then win the right in court to use what you paid for. In such a world, the audience and the artist alike become the defendants, and their life is not art, but trials and punishment. That is not the sustainable basis for any culture, other than a culture of fear.

Michael Tiemann’s website.

Update on October 6, 2009 by

Michael Tiemann

Thanks, all, for writing your comments, and thus contributing to this discussion.

To the question “doesn’t culture primarily advance through people creating new works, as opposed to recycling old ones?” I would say the answer is beyond my ability to answer in a perfectly factual manner. Since we’re talking about Gould, perhaps his perspective on the matter could be enlightening. The article in question (from The Glenn Gould Reader, edited by Tim Page) is “Strauss and the Electronic Future”, and he writes:

We tend to visualize a greatly exaggerated concept of historical transformation, and, for reasons that seem expedient in helping us make history approachable and teachable (in order to make history captive is perhaps closer to the point), we tend to prefer antithetical descriptions of historical point and denial, and to those we assign descriptions, term that are consequently infected with all sorts of extraneous notions about progress and retrogression.

By way of example, he asks the reader to imagine an improvisation of a piano sonata in the style of Haydn so artfully done that one could pass it off, and have it accepted as a previously unknown work of Haydn. Gould then asserts that it would be accorded value commensurate with Haydn’s reputation. But he then suggests that if one were to change this false attribution, and say it is in fact a work by Mendelssohn, “the reaction to this bit of news would run something along the lines of ‘Well, a pleasant trifle, obviously old-fashioned but certainly shows a good command of an earlier style’—in other words, bottom-drawer Mendelssohn.” He then continues the thought experiment by considering what would happen if the work were attributed not to a later composer, but an earlier one, like Vivaldi. Gould says “with that condition in mind, this would be greeted as one of the true revelations of musical history—a work that would be accepted as proof of the farsightedness of this great master, who managed in this one incredible leap to bridge the years that separate the Italian baroque from the Austrian rococo, and our poor peice would be deemed worthy of the most august programs.” He continues:

In other words, the determination of most of our aesthetic criteria, depsite all our proud claims about the integrity of artistic judgment, derives from nothing remotely like an “art-for-arts-sake” approach. What they really derive from is what we could only call an “art-for-what-its-society-was-once-like” sake.

When you begin to examine terms like “originality” with reference to those constructive situations to which they do in fact analytically apply, the nature of the description that they provide thends to reduce the imitation-invention ratio in a work of art quite properly to a simple matter of statistic. Within this statistic no work of art is ever genuinely “original”—if it were, it would be unrecognizable. All art is really variation upon some other art, and the more we divorce the application of terms like “originality” from those analytical observations to which they can profitably apply, the more uncertain is the ground upon which we erect our evaluations of art.

Gould is obviously talking about cultural valuation, not financial valuation, and he’s talking about music originality instead of a specific property right, but I agree with him that to the extent that the question asked above (“doesn’t culture primarily advance through people creating new works, as opposed to recycling old ones?”) reduces to an either-or evaluation of creativity vs. recycling, the question is not based in reality. And to the extent that it does not, the question becomes merely aesthetic. I may write as pompously as Gould, but I’m not going to be the arbitrary judge of what makes music worthy or garbage for anybody but my own aesthetic self.

Another reader comments “One last thought: look at the EXPLOSION in the arts, since copyright law was established. It might not be perfect, but it’s far from out and out wrong. What’s needed is not less technology, but more.” I agree with the conclusion, but not the assumption. Namely, I agree that more technology creates more art, as can be seen by the contrast of the cave dwellers of Lascaux (who did not have agricultural technologies) to the city-states of Egypt (who did). Gould takes this a step further (in the same article, “Strauss and the Electronic Future”) by saying

implicit in electronic culture is an acceptance of the idea of multilevel participation in the creative process

which I completely agree with. Thus, more technology does create more opportunity for art. However, I think it is an error in logic to attribute this to copyright, for two reasons. First, because the term copyright is overbroad. If we were talking about copyright at the time of Thomas Jefferson, which was 14 years, then I’d have no complaints. The second because not just in term (from 14 years to what has become, for all practical purposes due to constant legal goalpost moving, perpetuity), but because copyright has become so broad, and in some cases, so retroactive, that whatever creativity one might attribute to its existance is disingenuous. By way of example, consider the Eiffel Tower. As blogged by Michael Mikelthwaite

The Eiffel Tower’s likeness had long since been part of the public domain, when in 2003, it was abruptly repossessed by the city of Paris. That’s the year that the SNTE, the company charged with maintaining the tower, adorned it with a distinctive lighting display, copyrighted the design, and in one feel swoop, reclaimed the nighttime image and likeness of the most popular monument on earth. In short: they changed the actual likeness of the tower, and then copyrighted that.

As a result, it’s no longer legal to publish current photographs of the Eiffel Tower at night without permission…

Is it really proper to credit the beauty of the Eiffel Tower to copyright, even though copyright now applies? I don’t think so.

Finally, as to the question of how much control the artist should have over the disposition of their works, it’s an age old question. Once upon a time, the Church argued that none but the highest priests should have access to the Word of God, lest the uninitiated, or worst, the heretics, make a mess of it. Gutenburg changed that. But for all the freedoms we have gained when it comes to words and the press, we seem to have fewer and fewer when it comes to music, and I lament that loss.