In most parts of the world, and in European/American culture until about 200 years ago, music was not something that could be owned. Musical traditions were freely shared among musicians. If you heard a troubadour play a particular tune, and if you were clever enough to remember the melody afterward, you could work it out on your lute, add your own verses if so inclined, and sing it yourself.
As Big Bill Broonzy said, “It’s all folk music. I never heard no horse play none of it.”
All this began to change around 1800. Musical ensembles were growing larger, and the system of patronage, in which the ruling class paid for the privilege of hearing fine music, was breaking down. In order to make a living, composers could no longer rely on a duke or prince to hire and pay the musicians who would perform new works. Increasingly, composers needed to be able to get income through publishing sheet music.
Various nations established copyright laws to prevent one publisher from pirating the material of another publisher — but there was no legal framework that could prevent a British publisher from stealing the material brought out by a German or French publisher, or vice-versa. It wasn’t until near the end of the 19th century that composers and authors could rely on an international copyright convention to protect their sources of income.
I’m totally in favor of musicians (and authors) being able to earn a living from their work! But I also recognize that the law of copyright can inhibit artists’ creativity in rather horrible ways.
This year I uploaded a set of radically re-envisioned arrangements of Beatles songs. It’s on my bandcamp page. It’s called Reimagine. Now, these songs are covered by copyright. In order to do this upload legally, I had to pay a licensing fee. I acquired the licenses through the Harry Fox Agency, which handles this sort of thing in the U.S. The process is fairly simple, and the cost, if you’re not planning on selling a lot of copies, is rather modest. But the licenses have to be renewed every year, so there’s an ongoing cost.
Thus far, my income from Reimagine is precisely zero. I hope a few people have listened to the streaming audio, but nobody has yet bought a download. The question naturally arises, is it even faintly sensible that I’m required to drop money into the groaning coffers of the Beatles’ song licensing apparatus every year in order to make available to listeners what is, in some limited way, my own creative work? Paul, Ringo, and whoever else is making money off of the Beatles catalog is not going to miss my paltry contribution. But if I don’t re-license, I’m a criminal.
I’m thinking of possibly doing a similar collection of non-Beatles tunes from the ’60s and ’70s. They were great tunes! And I have no intention of copping the original arrangements. I’ll be making rather extensive creative contributions of my own to the recordings. Nonetheless, the fact that “Paint It Black” or “Wooden Ships” will be recognizable even after I’ve wrestled it to the ground is very much the point of the endeavor. Doing original music with the same digital orchestrations wouldn’t have the same aesthetic impact at all. So I am gaining something by using these well-known songs. But I’m making no money at it. If Harry Fox wanted 50% of my gross proceeds, I’d be perfectly happy to send them $0. But that’s not how the licensing is set up. There’s a minimal fee for up to, I forget, 250 downloads, something like that. Ka-ching.
Oddly enough, if I were playing the same arrangements of these well-known tunes live, I could do it for free. ASCAP and BMI would take the songwriters’ cut from the club owners, and to the best of my knowledge the club owner is specifically prohibited by law from passing this expense on to the musicians. So I could play live (if I had a band — and that’s a subject for another time). Or I can pay yearly fees to support the infrastructure of Big Music, Inc., which will not do Mick Jagger or Paul Simon a bit of good, because they’re already rich. Or I can just make the music for fun and not upload it anywhere, which is a rather lonely prospect. Or I can be a criminal.
None of these is a very appetizing choice. But it’s a choice I have to make, because the world of modern music does not function socially in the way that music has functioned throughout history and everywhere in the world. If I were spiritually inclined, I’d say that the system we’re burdened with is spiritually deadening.
The same thing happens in book publishing, of course. Anybody can write a novel about Sherlock Holmes, because the Holmes stories were written so long ago that they have entered the public domain. But you can’t write about Harry Potter. Don’t even think of it. No matter how talented you are as a writer, and no matter how profoundly your work might enhance the Harry Potter legend, you can’t do it, because a certain billionaire owns the copyright. Not that I begrudge her the money. She’s a fine writer, and I love seeing writers succeed! But Harry Potter is her personal property. You could no more go skinny-dipping on a private beach than poach on the Potter fields.
Musicians have, at least, the benefit of compulsory licensing. If a song has been recorded and publicly released, you can’t be prevented from releasing your own version; you just have to pay for the privilege. With books, the author of a derivative work has no such option. But even with compulsory licensing, the limitation is still rather galling.
If you’re a high-level professional musician — a Lady Gaga, let’s say — you can do what you like. You have money to cover the up-front licensing fees, and you have people to file the paperwork. You just say, “Hey, I’d like to record ‘Paint It Black.’ Get me the rights.” And someone will make it so. Ordinary artists have no such luxury. We have no apparatus at all. The deck is stacked in favor of Big Music, Inc., and the individual troubadour is not the one who ends up with the lute.
(Terrible pun. Sorry. I couldn’t resist.)