Theft! A History of Music

by on March 6, 2017 at 7:13 am in Books, Economics, Law | Permalink

Theft! A History of Music is a graphic novel by James Boyle, Jennifer Jenkins and the late Keith Aoki. It’s about musical borrowing and the laws that have attempted to regulate musical borrowing and inter-mixing over the past 2000 years.

The history in this book runs from Plato to Blurred Lines and beyond. You will read about the Holy Roman Empire’s attempts to standardize religious music with the first great musical technology (notation) and the inevitable backfire of that attempt. You will read about troubadours and church composers, swapping tunes (and remarkably profane lyrics), changing both religion and music in the process. You will see diatribes against jazz for corrupting musical culture, against rock and roll for breaching the color-line. You will learn about the lawsuits that, surprisingly, shaped rap. You will read the story of some of music’s iconoclasts—from Handel and Beethoven to Robert Johnson, Chuck Berry, Little Richard, Ray Charles, the British Invasion and Public Enemy.

Theft! is informative and quite fun. I enjoyed it a lot. You can buy a paperback or get a free download. Here’s one page:

1 dan1111 March 6, 2017 at 7:31 am
2 Tom Anichini March 6, 2017 at 9:33 am

This Onion article reminds me of a 1990 satire by Bill Wyman in The Chicago Reader called “The Big Sample.”

“That’s Sgt. Pepper,” I said. “No,” said the kid, “that’s my new album.”

3 Rich Berger March 6, 2017 at 5:36 pm

I thought it was the real Bill Wyman, but I was disappointed.

4 prior_test2 March 6, 2017 at 7:46 am

Hey, this is neat – Marginal Revolution links to a free comic book. And starting around page 87, one can read about how the threat of uncontrolled mechanical music reproduction was beaten back, so as to preserve the American music industry – in 1909.

Even better, anyone can distribute or remix this work non-commercially.

Full credit where due – Prof. Tabarrok is providing increased visibility to people who believe the following concerning their creative output – ‘We want this book to be widely available, whether or not you have the money to buy it.’

5 Thiago Ribeiro March 6, 2017 at 7:54 am

Talking about “borrowing” and its importance for music:
“Caz admits that he himself stole new equipment that night. ‘I went right to the place where I bought my first set of DJ equipment, and I went and got me a mixer out of there.’ He continues, ‘After the blackout, all this new wealth … was found by people and they just—opportunity sprang from that. And you could see the differences before the blackout and after.'”
Well, during he civil disturbances of the last month, I did not loot anything – it is a shame one can’t buy morals… or loot it. Maybe his is why our music fals to interest most Americans.

6 jim jones March 6, 2017 at 7:54 am

Wow, the first time I have actually enjoyed an article on MR

7 Hua Wei March 6, 2017 at 8:26 am

And yet you keep coming…

8 Horhe March 6, 2017 at 8:50 am

Even Michelle Obama waited until she was First Lady to be proud of her country for the first time.

9 Thiago Ribeiro March 6, 2017 at 9:34 am

Probably what she meant was that, electing Obama, America made itself great again. Anyway I was told in 2016 it is not great. Maybe it is just adequate.

10 John Mansfield March 6, 2017 at 7:59 am

Is the complaint there that Clinton and Fogerty held copyrights, or only that they were able to sell them?

11 dan1111 March 6, 2017 at 8:17 am

I don’t know. Music copyright admittedly has some problems, but I see nothing objectionable about the scenario described here.

It makes sense that it is illegal to take someone else’s recording and sell it as part of your own work without paying for it.

I don’t see why the fact that it is a really short sample should change that.

It also makes sense that people should be free to reassign the rights to their work to someone else.

12 Troll me March 6, 2017 at 8:57 am

Unless you’re also copying a dozen other things like the amount of delay, distortion, various additional effects, and then remaster it to be precisely the same as some other thing …

… for a given three notes, there are almost certainly literally thousands of songs plays tens or hundreds of years previous with the sequence.

Imagine starting with Beethoven’s Fifth. The first few notes. And then doing something funky with it. It has been done many times. Beethoven’s Fifth is also not copyrighted. But even if it were, isn’t that incredibly consistent with “fair use” rules which are intended to facilitate artist’s ability to be inspired by others in their creative works?

Imagine if I were to take your first three words, “I don’t know”, and then you were to tell me this was a copyright infringement.

13 dan1111 March 6, 2017 at 9:06 am

We are talking about sampling here: literally replaying someone else’s recorded music in your own. To me, that is a clear line.

I agree that a copyright infringement claim based on a few notes in a composition being the same would be absurd.

14 Troll me March 6, 2017 at 9:55 am

Fair use allows you to quote people’s exact words, take short cutouts from copyrighted Hollywood content, and all sorts of other stuff.

As a musician, I think it’s abusrd that taking a few note sample is infringement on that basis alone. Only a subjective evaluation can indicate whether, in sum, substantive copying was done with essentially no original contribution.

The laws are driven by IP holders who want to make a buck, with laws interpreted by judges who probably haven’t picked up an instrument in 20 years if ever. And are basically never written, driven or interpreted by musicians themselves, who are quite obviously best positioned to determine whether a) the riff is a bopy and b) whether they did something substntively new or cool with it.

15 dan1111 March 6, 2017 at 11:24 am

I agree that copyright protections are getting out of control. However, I don’t have a problem with restrictions on sampling, because sampling seems like more directly “theft”, and also it’s a clear, bright line restriction that an artist will know if they are breaking. One of the biggest problems with expansive copyright rulings are that they create a gray area that inhibits creativity, because you never know whether you are going to be in violation.

16 Sam Haysom March 6, 2017 at 11:13 am

So I take it you were appalled by the Blurred Lines ruling.

17 rayward March 6, 2017 at 8:57 am

I’m reminded of George Harrison’s alleged theft of He’s So Fine with his song My Sweet Lord, his “defense” being that his theft was of the out-of-copyright Christian hymn Oh Happy Day. I’m not a musician but I understand that most music from an era is intended to sound alike (i.e., the same “time signature”), music innovators (such as Dave Brubeck – Take Five) the exception. Of course, one could make the same case with respect to books of fiction (or films), as genres in literature (or films) follow the same basic construction.

18 Asher March 6, 2017 at 9:24 am

Well that’s a substantive defense. It’s not claiming that no song can ever infringe another song. In fact, I think the songs DO have a remarkable similarity to “Oh Happy Day”. The court decided it wasn’t close enough but it was on substance not on principle. As I recall the Stairway to Heaven/Spirit case had a similar defense, namely that the contested section had precedents prior to both songs. In that case the court agreed that there was enough new in Stairway compared to the precedents to make it a new song.

Likewise Fogerty didn’t claim that he was allowed to play Run through the Jungle without acquiring rights. That would have been pretty idiotic, he would have had to return the money to Fantasy. He just claimed that the songs weren’t really that similar and the court agreed. The comic is extremely misleading.

It sounds like Alex is claiming that no one could ever be guilty of plagiarizing his own song, which would of course mean that no artist could ever sell the copyright to his own song which would of course make it pretty hard to make a living as a musician. Don’t know if Alex cares. He sounds like Richard Stallman only much more extreme.

19 Mike S March 13, 2017 at 5:22 am

I had never realized that was part of Harrison’s defense but My Sweet Lord does sound remarkably similar to this version of Oh Happy Day.

20 ohwilleke March 6, 2017 at 9:10 am

We do our society no favors by trapping the public domain in 1923. It is becoming increasingly dystopian.

21 Asher March 6, 2017 at 9:27 am

Never heard of Ray Charles described as an iconoclast. On the contrary, he tended to model himself on other artists. I think this blog post is pretty careless.

22 dan1111 March 6, 2017 at 9:42 am

The comic itself has quite a thorough treatment of Charles’ borrowing from other artists. I think they probably call him an iconoclast because of his controversial adaptation of religious music styles and songs to secular themes, which scandalized many people of his day.

23 Urso March 6, 2017 at 10:15 am

More likely that the author believes iconoclast means iconic.

24 dan1111 March 6, 2017 at 11:18 am

On second thought, maybe you’re right. It’s hard to see how, say, Handel could really be called an iconoclast.

25 Sam Haysom March 6, 2017 at 11:17 am

That’s not an example of iconoclasm (either definition) either though. The mixing of the sacred and the profane is one of the oldest themes in art- Ray Charles did not invent this idea. Ray Charles didn’t invent anything musically.

26 dan1111 March 6, 2017 at 11:20 am

Adapting religious music and making it secular might be perceived as an attack on established institutions. But I admit it’s kind of a stretch. It’s probably true that they are just misusing the word.

27 carlospln March 6, 2017 at 3:43 pm

“Ray Charles didn’t invent anything musically”

Except a little something called ‘Rhythm & Blues’.


28 Sam Haysom March 6, 2017 at 4:51 pm

Yikes them someone forgot to tell the people that tracked the R&B top 100 charts that. They were recording those lists all the way back to the 1940s. (Hint that’s earlier than Ray Charles-who Im guessing is the only R&B artist you know, correct?)

There is a certain species of white person-like carlospn and Nathan- that has very little interaction with and knowledge about African-American culture. It’s highly amusing to chuckle loudly at their hot takes. Super sigh.

29 Urso March 6, 2017 at 10:18 am

Counterpoint – if all that NWA sampled was a simple three note arpeggiated guitar chord (c – e – g), why not just buy a guitar? I could literally teach you to play c – e – g in less than a minute. Perhaps part of the appeal of sampling is that listeners will explicitly recognize it as a George Clinton riff. If that is the case, and they are directly attempting to benefit from Clinton’s preexisting familiarity, then the case for copyright violation is stronger than they’ve laid out here.

30 Ray Lopez March 6, 2017 at 11:44 am

Strawman by AlexT. It’s one thing to file a suit, another to win. In the UK, they have the “English Rule” which means if you file a frivolous suit and lose, you pay the winners fees. This cuts down on “troll” lawsuits. I think the US should adopt the UK rule.

Bonus trivia: do you remember the early 1990s ‘grunge’ movement? I distinctly recall a bunch of 1980s songs that were copies, almost chord for chord, in nameless ‘grunge’ hits. Since I don’t follow music–but I know my rap music, as msgkings–I can’t name specifics.

31 msgkings March 6, 2017 at 1:35 pm

Not sure there were a “bunch” of grunge songs that took from 1980s songs. But the guitar chords for the uber-grunge Nirvana song “Smells Like Teen Spirit” were pretty much identical to the chords in the chorus of Boston’s “More Than a Feeling”

The point being, as the comic makes plain, music is almost entirely about taking the old and making it new.

32 Wonks Anonymous March 6, 2017 at 3:23 pm

I was expecting you to reference taking the riff from Killing Joke’s “Eighties” for “Come as You Are”.

33 Sam Haysom March 6, 2017 at 4:58 pm

Nirvana’s Man who sold the world sounded nothing like Bowie’s Man Who Sold the World. Which kind of summarized why grunge sucks.

34 msgkings March 6, 2017 at 5:11 pm

It sounded pretty different but I like them both. As I said, taking the old and making it new. I like Peter Gabriel’s cover of “Heroes” too.

35 Mike S March 13, 2017 at 5:27 am

Are you mixing up tunes? “Smells Like Teen Spirit” and “More Than A Feeling” are not the same chords considering they’re in different keys. Also, there are a million songs that share the same chords, it’s generally the melody which would be considered lifted.

36 Wonks Anonymous March 6, 2017 at 3:24 pm

I clicked the link on how musical notation supposedly “backfired”, but it didn’t actually explain what backfire happened.

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