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Excerpted From: Olufunmilayo B. Arewa, From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context, 84 North Carolina Law Review 547 (January 2006) (540 Footnotes) (Full Document)


OlufunmilayoArewaWhat do Beethoven and Public Enemy have in common? Both have been enormously popular performers and composers. Both are credited with fundamentally transforming music composition and performance during their respective times. Both have copied and incorporated existing works of their own or others into their own works. As such, Beethoven and Public Enemy illustrate the continuity of musical borrowing. This continuity and the importance of musical borrowing remain largely unacknowledged by the legal commentary and unreflected in copyright law.

Musical borrowing, which includes a range of practices from copying to more subtle influences, is a pervasive aspect of musical production. Current copyright doctrine does not adequately reflect the reality of musical borrowing. Existing copyright structures are based on a vision of musical authorship that is both historically and culturally specific. This vision has led to representations of musical authorship in the legal sphere that do not adequately consider the ways in which musical borrowing is an integral part of authorship of many genres of music, not just hip hop music. Existing copyright 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 thus 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 autonomous vision of musical authorship to both copyright law structures and conceptions of the canonic classical music tradition reflects an increasing tendency to minimize the importance and continuity of musical borrowing practices generally.

Further, current copyright structures reflect a pervasive bias toward musical features that lend themselves more readily to established forms of musical notation. As a result, these structures reflect an emphasis on fidelity to the musical text. That emphasis is derived from the classical music tradition and has become predominant since the formation of the classical music canon in the nineteenth century. In contrast, other types of musical expression, including classical music prior to the last half of the nineteenth century and jazz, have generally related to musical texts in a different way. Improvisation was once an important part of classical music practice. However, aside from a few limited cases such as cadenzas and ornamentations in da capo arias, improvisation is no longer typical in classical music performance today. The decline of improvisation in the classical tradition is 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.

This Article focuses on some implications of musical borrowing for visions of musical authorship and copyright law. It considers how such visions relate to representations of musical authorship that largely fail to take into account the pervasive and widespread borrowing that characterizes much musical production. In addition, it discusses how hip hop and other forms of music that use existing works in their creation have challenged such representations. One such challenge in the case of hip hop is its unmistakable and overt use of musical borrowing through sampling. Part I examines the construction of music copyright, focusing on the implications of the vision of musical authorship or composition evident in legal commentary and court cases in the music copyright area. Part II focuses on the vision of authorship and performance in music copyright in historical and cultural context. Part III discusses potential ways to incorporate a liability rule-based framework for sampling based partly upon existing statutory frameworks and current musical industry licensing practices.

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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. The assumed characteristics and musical composition practices of the European classical tradition, essentially 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 musical creation occurs. 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 role should not 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, better standards must be developed to determine what constitutes acceptable and unacceptable sampling practices. 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.

As musicologist Susan McClary has noted, a succession of African American musical genres, including ragtime, blues, jazz, rhythm and blues, 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.” 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. Further, the legal standards applied in music infringement cases need to reflect current and past actual music practice rather than be based upon idealized and inaccurate notions of music creation that emanate from an invented classical music tradition. Such notions of music creation are often not conducive to the development of vibrant and living music traditions. As we apply such legal standards, we should be careful and be alert to the implications of such actions, as well as to the fact that musical production may in the end come to mirror the conceptions contained in the copyright standards applied to it.

Visiting Assistant Professor, University of Georgia School of Law (Fall 2005); Assistant Professor, Case Western Reserve University School of Law.

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