Theft! A History of Music

November 17, 2010 - Professor Jennifer Jenkins, Director of the Center for the Study of Public Domain, will discuss the history of musical borrowing and regulation from Plato to hip hop.

[Bell]
[Announcer] This is Duke University.

(The Center for the Study of the Public Domain presents: "Theft! A History of Music"
17 November 2010 - Duke Law)

[James Boyle] Welcome to this lecture put on by the Center for the Study of the Public Domain.

We bring - as part of our Center, we bring some of the leading figures in intellectual property

to come and speak here and today, the same is true,

and today, the same is true, but in this case we are introducing one of own:

Jennifer Jenkins is the director of the Center for the Study of the Public Domain.

She is a lecturing fellow, a senior lecturing fellow at the Law School,

teaching classes in Intellectual Property, the Public Domain and Free Speech,

and in music's copyright.

She's also the author of a number of things:

a comic book, which she co-authored with me and another one that she's going to talk about today,

and an article - a very prescient article - on the American system of protecting, or in this case,

not protecting fashion designs in intellectual property.

Jennifer is a frequently quoted academic in the media.

She has recently appeared in the New York Times, Newsweek, and on NPR.

And today, she's going to be talking to us about her research project on the history of music. Jennifer.

[Applause]

[Jennifer Jenkins] Hem... so.

Why did Plato argue that remixing music should be banned by the state?

Why did the Holy Roman Empire encourage the use of musical notation?

What threats were jazz and rock 'n roll supposed to present to society in mainstream culture?

Would the development of genres like jazz and soul even be possible under today's legal regimes?

These are some of the topics I'm going to talk about today, but with a twist:

I'm going to describe to you a research project

that Professor Boyle and I have been working on for about four years.

A project that focuses on the history of musical borrowing,

an over 2000 year exploration of the way that norms, aesthetics, law, politics, technology, economics

have influenced the conditions of creativity in music

and tried to limit the mutability of musical forms.

The project has taken us in some interesting directions.

For example, in 2006, ........ (?) with professor Anthony Kelly (2:38)

who is in this room, a course composed of half law students, half graduate level composers

that examined the way that musicians, on the one hand, and copyright law, on the other hand,

view different types of musical borrowing.

But the component of the project that I'm going to talk about today is a little bit different.

So, as anyone of our students' generation knows, we are currently in the middle of the musical wars.

On the one side, you hear about a whole generation of law-breakers,

pirating and remixing music without authorization,

completely indifferent to authors' needs.

On the other hand, you hear about record companies

resorting to the law to prop up an obsolete business model,

while trying to criminalize new forms of creativity and access enabled by technology.

And what our research showed us is that both of these accounts are both inaccurate and a-historical,

and that the history of music that I'm going to talk about,

can actually teach us a lot about today's debates.

So we wondered, how should we present all of these findings to the public?

So, one of the goals of our Center is - and of the Law School as a whole - is translation:

taking abstruse legal or academic findings and research,

and making those findings available and accessible to a wider audience.

So, the form we chose for translation in this instance is one that we used successfully in the past

to explain Fair Use and copyright law to documentary film makers, namely -

a comic book!

That's - he's very generous, by the way - that's me, that's Professor Boyle flying in his -

actually this suit looks very much like the one he's wearing here, [laughter] that's amazing!

That's actually Professor Kelly and these are all the warrior zombies.

So, the comic book is called "Theft, A History Of Music".

It's being co-authored by Professor Boyle from the Law School, by me and by professor Keith Aoki

who works at the University of California at Davis,

and while I'm going to tell you a little bit about our findings on musical borrowing,

I'm also going to tell you about the adventures, frustrations, delights,

of trying to present 2000 years of history in the form of a comic book.

(The struggle to control music is a very old one)
So my first theme today is that the struggle to control music is a very old one.

There is something different about music.

As we did our research, one of the things that struck us most

was that music arouses very strong fears and very strong feelings

that lead to persistent, repeated attempts throughout history to regulate and control music,

whether legally, aesthetically or culturally.

This is especially true when it comes to remix.

Throughout history, there has been a persistent urge

to police the boundaries of musical forms and genres.

So, to take one example, here is Plato, as promised,

inveighing against the dangers of musical music over 2000 years ago. In Plato's words:

"This is the point to which, above all, the attention of our rulers should be directed:

that music, and gymnastics,be preserved in their original form, and no innovation made.

Any musical innovation is full of danger to the whole state

and ought to be prohibited."

So, Plato's arguing that musical innovation should be banned by the state.

Now, the mixing of ancient musical modes, such as the Dorian, Phrygian, Lydian etc.,

is obviously not the same as ...... to known mashing ups, radio head and jazzy (Jaycee?) radio head, (6:38)

or DJ Earworm mashing up the year's greatest pop hits,

but it's still fascinating to find that over 2000 years ago,

people were still arguing about banning a form of mash-up.

So, why would that be?

(comic: "Remember that to the ancient Greeks, Music was part of a set of universal norms ... a deep logic of the universe which combined geometry and sounds, ethics, politics and beauty.")
Well, if you see music as a reflection

of the order of the cosmos, as the Greeks did,

or as a mode of communication that can jump the firewall of the brain

and communicate directly to the emotions,

then of course, you would worry about remix, because the results of the wrong remix -

(Comic: "Mixing musical forms was actually meddling with ethos, and the order of this cospos. It threatened Anarchy. So Plato did want some kinds of "sampling" forbidden. But not because of "property rights.")
could be dramatic. [laughter]

Star-spangled Banner not being well received by the ancient Greeks.

So now, the Platonist view of music may seem outmoded - pun - so to speak.

Most of us aren't Platonists anymore.

But the belief in music's subversive power, about the danger of crossing musical boundaries,

is an enduring one.

So, these boundaries might be religious as with contrafactum (?)

and sacred-secular borrowing in the Middle Ages,

or cultural, or even racial

(Etude Music Magazine: "Jazz Problem - Opinions of Prominent Public Men and Musicians" August 1924)

So, this is the cover of the 1924 Etude Magazine that was brought to my attention,

actually given to us by Professor Anthony Kelly here, from the Music Department,

featuring the "Opinions of Prominent Public Men"

- there were actually women featured in there, but the cover says "Men" -

"and musicians on the Jazz problem".

What's the problem?

Here is a quote that I'm going to read from one composer,

with rather racist concerns about stylistic mingling. He said, just from this issue:

"Jazz is to real music what the caricature is to the portrait.

Jazz originated from the dance rhythms of the Negro.

It was at least interesting as a self-expression of a primitive race.

When jazz was adopted by the highly civilized white race,

it tended to degenerate it towards primitivity."

So here the boundaries that are being policed are as much racial as they are musical.

And this theme continued, whether it was composers such as this one,

worrying about the corrupting powers of jazz on white music in the 1920's,

or a few decades later, the segreationists in the American South,

that wanted rock 'n roll banned, because they saw it as a subversive crossing of lines

by Black R and P (?) music (9:21)

that might corrupt, among other things, white womanhood

and fill their heads with pounding rhythms and an attraction for African American performers.

(Comic: "It wasn't only Hazz that made people scared... Here's George Wallace's speech writer, Asa Carter, on Rock and Roll...'[Rock is the heavy beat music of the Negroes. It appeals to the base in man; it brings out animalism and vulgarity...'"
These are real quotes - I don't know if you can see them -

from Isa Carter, who was George Wallace's speech writer.

In other words, the segregationists thought that this was a form a musical miscegenation

that would lead to actual miscegenation.

Musical lines were race lines, and crossing them was dangerous.

(Cartoon: "And peddling paranoia was a big business... 'Rock and Roll inflames and excites youth like jungle tom-toms.'")
This is a preacher from the same amount of (?) time, and that's one of his quotes. (10:00)