Musings

by Anne M Carley

Jazz improvisation is a rich creative art form, accessible to those who read music and those who do not; those who play an instrument and those who sing; sometimes those who dance in tap shoes, as well. A traditional jazz musician takes a "standard" from the thousands of songs comprising the classic jazz repertoire and uses the melody as written, once, followed by reiterations, each one different, recalling the composer's melody or not, but usually tracking the song's "changes" - its chord progressions and harmonic rhythm - each time around. The resulting musical performance has elements of old - the well-known standard - as well as new - the creative harmonies, melodies, and rhythmic variations superimposed over the old tune's changes.

Rather than improvise over an existing song, what if you want to make something up, create something new? You make up a melody, perhaps, to begin with, and then add on more layers: lyrics, chords for piano or guitar or other instruments (or a symphony orchestra), countermelodies, vocal harmonies, percussion parts, etc. How did that first germ of a melodic idea come about? It almost goes without saying it was the product of the totality of circumstances in your life up until this point, circumstances like listening to and playing other people's music.

Maybe your new composition is based less in melody and more in the chord progressions. In jazz circles, reworkings by Charlie Parker and others of I've Got Rhythm, some as separate, copyrighted songs, are well known. Parker added so many linear and harmonic complexities - which originated in his live improvisations, not in music manuscript - that he departed the realm of the Gershwins' show-tune, entitling Parker to consider his work a new composition. A particular improvisatory flight was codified, named, and copyrighted, no longer tethered to its past, thereby providing one more standard for everyone else to riff on.

Needless to say, that's not always the case when one artist builds on what another began. George Harrison wrote, published, and recorded a song that felt to him completely new. The tune and the lyrics' meter for My Sweet Lord may have felt new to him, but a court found them too close to the Chiffons' hit, He's So Fine, for comfort. After decades of legal wrangling, the owners of rights in those two songs eventually worked out a revenue-sharing agreement. This became necessary because a court determined Harrison had copied subconsciously. The music and meter of his "hare krishna" fit too neatly with the "doo lang do-lang do-lang" of the earlier pop classic; his "my sweet lord" too similar to its "he's so fine." Unaware that he was drawing on the past, Harrison was seen as a copier, not an inspired embroiderer on a gem from a shared pop heritage.

What if, like the composer Zoltán Kodály, you wanted to write a new composition, based on a traditional melody (Hungarian, in Kodály's case)? By the time you're through with it, your composition's origin in a simple melody may not be very clear, but even if it were, you'd be able to use it anyway, as long as the melody you had chosen was free of claims of copyright ownership. This would have passed improvisation to become a new composition, perhaps "inspired by" or "based on" a traditional air.

What if you write an orchestral work that superimposes several distinct traditional tunes cacophonously, the way Charles Ives did in the second movement of his Three Places in New England? Ives composed it to resemble the experience of sitting in the square of a small New England town while two marching bands, playing completely different music at different tempos, simultaneously approach the square, marching from opposite ends of the town. In the Ives work, members of the orchestra represent those competing bands. In yours, what if the competing musical lines were digital samples of recent commercial hip-hop recordings, played back at precise time-cues?

Here, it seems simple to conclude that you appropriated nothing more than a general idea from Ives. Questions arise, though, as to your choice to play digital samples of someone else's commercial recording. You might be advised by a lawyer to consider whether your use of the samples is "transformative" and whether your use harms the market for the originals. (A "yes" to the first and "no" to the second might give you and your attorney surer footing, but you would need to conduct a more complicated analysis than this space permits.) Could something so pre-arranged be called an improvisation? Probably not.

These processes, plus countless more, are in use each day in the worlds of music. And we haven't even talked about adding lyrics yet. What if your lyrics were from a traditional song of the Southern Appalachians that you had collected on a six-month musical exploration of the deep mountain hollows and coves of Western North Carolina? What if you used lyrics, also from the same region of the US, but taken from a book, published in 1994, by well-known musicologists? What if the lyrics were adapted from a recent translation of the works of Rumi, the Sufi mystic and poet of the Thirteenth Century CE? Of course, you could just make up the words yourself, and as long as you weren't found to have subconsciously infringed someone (see George Harrison), you would retain copyright in those words. (Not entirely comforting words, those.)

As commentator Julia Keller has pointed out, copying holds a place of honor in our society: "This is a culture, after all, which counts among its greatest technological achievements the process of cloning: creating an exact duplicate of what already exists." And who does not recall from childhood the art teacher for whom "good" meant "identical"? At the same time, however, our society has devoted great attention (and legislation and litigation and treaty negotiation) to defining copying, and confining the acceptable methods for doing so. This could be because megabucks are at stake here: strong motivation to regularize globally the businesses of sharing and exploiting these combinations of inspiration, adaptation, improvisation, and reclamation.

What does it look like in the world of the visual arts online? To date there is no widely accepted rights clearance procedure, nor is there consensus on important definitions. For that matter, these days there might be more of a tussle over Charlie Parker's transformations of existing musical compositions. In 1989, 2LiveCrew, a rap group, wrote and recorded a parody of Roy Orbison's hit song, Oh Pretty Woman. Even though it was a parody, in a very different style and context, and the group had notified the song's publisher and credited the song's writers, it took five years, and a Supreme Court decision, to say what 2LiveCrew had done was permissible.

Certainly, by the time Andy Warhol was doing his Campbell's Soup labels in the 1960's, Campbell's was aware of Warhol's appropriation and, according to story, decided no harm, no foul, permitting Warhol to continue. Perhaps this notion was already familiar from the world of jazz, where appropriation of this sort, in a different iteration but patently drawing on its origin, was a respected tradition. The similarity of second iteration to original was obviously greater for the red-and-white labels than for a Parker composition. But if Warhol and his soup cans were transported into the early Twenty- First Century, who's to say what Campbell's would do? Now that intellectual property constitutes the United States' largest export, the soup company might be less casual. If they sued Warhol, his attorneys might invoke the law of Campbell v Acuff-Rose (the 2LiveCrew - Roy Orbison case) and win against the soup company with a parody defense. (Some critics and historians credit Warhol with transforming visual art, by melding it with commerce and popular culture. It is curious to imagine where the law of appropriation would be now, without his impact.)

When Elaine Sturtevant paints a re-working of a classic Jasper Johns image, she does it in a different scale (CD-insert size, not LP-cover size, perhaps), and in another medium (acrylic, not encaustic). She also mentions Johns in the title she gives her work, lest there be any confusion. This has seemed to work for her in the analog art world. Her work may not have been called improvisation, but if there is such a thing in the non-spontaneous world of visual art, her works might qualify.

Put an image up on the web, though, and differences in medium fade, in the 72-dpi land of low resolution. So does a sense of scale - not only can we set our own monitors to various resolutions, but the web design and production processes add many more variables. On the web, a huge building can be made to look like a toy; a tiny postage stamp like a large painting. And what if our artist creates a digital work of visual art derived from digital elements already on the Internet? Not only are its appearance and size a little slippery, but the origins of the visual elements may or may not be evident. If they are not evident, and if the source appropriated from is not a multinational entertainment colossus, then our artist may never hear a peep. If the underlying elements, however, obviously came from an animated Warner Brothers character, our artist may have trouble ahead.

What constitutes an acceptable amount of direct copying? It's not clear. What is visual improvisation, if it can exist at all? Do we limit the term to works of art created in one burst, like improvised music? That would render the other riffs, variations on a theme, reworkings, etc. non-improvisatory: quite possibly, unacceptable appropriation. To complicate things, the analogy to music is difficult: music is a medium of layers, passing through time together. By contrast, a painting may be layered, but it accretes those layers one at a time, and then remains stable, its various serial influences detectable or not, in its final form.

Direct, self-conscious appropriations like Warhol's and Sturtevant's aside, it may be harder to say that a static object - the completed painting - draws from its artistic heritage in the clearly identifiable way that a three-chorus solo by jazz pianist Geri Adams builds upon the standard, Lullaby of the Leaves. Those who know her work will very likely be able to identify with their own sophisticated ears both the underlying song and Adams' distinctive style. While some can identify a painting by its style as the work of a certain artist, it can be harder (or impossible) to identify a predecessor to that painting than it is to identify the jazz standard behind that piano improvisation.

In the world of musical compositions, a system seems to be settling itself into place for music made available on the Internet. Songs registered with one of the performing rights organizations (ASCAP, BMI, SESAC, et al.) can be tracked electronically each time they are accessed through a website. The host website pays periodic traffic-based fees for its use of each musical composition, the fees to be distributed in turn to the composers and publishers controlling each song. ASCAP reserves the right to audit the host website's records of its site usage, to verify that the correct licensing fee was paid. That covers the right to perform someone else's published song. As to the right to distribute your recording of this song, first recorded by someone else, the web host will want also to have a site licensing arrangement with the Harry Fox Agency.

This means if you record a jazz standard at home, you may be able, legally, to put your recording up on the web, assuming you have tidied up your own permissions details, and the web host has its site licenses in place. By the way, the rules change completely if a website wants to host soundfiles taken directly from an existing recording controlled by a major label. The major record labels, unlike the performing rights organizations, have so far retained their traditionally change-resistant stance, making life difficult for those who would like to abide by the laws, while making life exciting and lucrative for those who are rushing in where the record labels had left a vacuum. All the recent furor over the availability of mp3 soundfiles taken from commercial recordings and then distributed, often for free, on the web, illustrates the problem.

So far, the equivalents of these site licenses for musical compositions and recordings have not found such acceptance in the worlds of visual imagery. I suspect one reason for this is the different natures of sounds - linear and evanescent - and sights - all-at-once and more stable - in our lives. Their roles differ as well: More of us are crossing the threshold into electronic visual image manipulation than into the musical equivalents. The software market reflects this - PhotoShop™ and its ilk, including inexpensive home versions, are widely available, and sales to individuals and businesses remain good, as do sales of related equipment: scanners, digital cameras, and color printers. The same cannot be said for computer programs designed to manipulate music - there are fewer of them, and they are sold, at higher prices, to professionals and serious amateurs. Sales of synthesizers and digital recording equipment and software are similarly limited.

Consequently, perhaps, images, which more of us can manipulate relatively easily, are more troublesome to put up on the web, legally, than are some kinds of soundfiles. A recent federal court decision, for instance, included a self-assured argument that photography is not really a creative art form: "What distinguishes photography from other visual artforms is that, as the name implies, the light itself does the writing….The reactions of the exposed film, like the workings of one's own retina, are not subject to direct control." Another court decision found that scanned photos of existing works of art were not separately copyrightable because the effort and skill needed to scan an image are not sufficient to make something new or apart from the original. (Other lawmakers, in the US and in other nations, are finding other answers to these questions, which are not yet settled law.)

Just to riff on that theme for a moment, if those two court opinions got together and had a child, we'd be looking at a free-for-all in mechanically reproduced imagery, saying in effect the photos aren't protectible intellectual property, and neither are digital reproductions of them. Not a likely outcome, I would guess, but it does illustrate that we may be trying too hard, too soon, to draw bright lines, craft rock-solid definitions, and establish idiot-proof exchanges of value.

More commonly, perhaps, the parties cannot agree how much of a visual work of art can be put up on the web without infringing its copyright, owned by another person or entity. Does it depend on how much surface area of a larger painting is used - would just two square inches from the upper right corner be OK, but three inches too much? Or does it mean a small, low-resolution image of an entire work - a thumbnail - is OK to put up on the web, but not a high-resolution detail from a larger work? Is it significant that the website showing this art is made and maintained by a nineteen-year-old college student as a special project in an art history seminar? Does it matter, instead, if the image appears on the homepage of a major multinational chemical company? Is it OK to put the image up, as long as you credit the artist and copyright owners?

Here are a few possible directions for the twisting paths:

1. By the Number: All digital/digitized creative works will have an identifier, better than a barcode: a chip, radio signal, watermark, fingerprint - some new tool provided by technological advances. Everything - still images, sequences of moving images, voiceprints, chord progressions, brush technique (Chico Hamilton's as well as Alice Neel's) - will be recognizable, based on a unique identifier. The second-generation iteration would include fuzzy-logic capabilities, so that, for example, Betty Carter's ornamented, partially scatted rendition of a jazz standard would be recognized, as would its Broadway show-tune underpinning. Microcash license fees would be allocated and accounted for accordingly.

2. Honor System (subject to periodic audit): Based on the existing model for musical compositions registered with the performing rights organizations (ASCAP, BMI, SESAC et al.), we might find equivalent ways to track and account for other types of electronic information. The other necessary factors - internationally recognized organizations to gather the information and distribute the proceeds, and rules and rates acceptable to the parties - are not yet in place for visual art or commercially distributed musical recordings.

3. Fair Witness: Drawing on a notion from classic science fiction, Robert Heinlein's Stranger in a Strange Land, we could combine checks-and-balances hierarchies with technological advances to establish new web-friendly methods of authentication. Once effective and safe microcash systems are in place (and if free market economists are right, that should be happening soon, since so many large, high-volume businesses desire them), these elements could combine to bolster consumer confidence in secure, authenticated web transactions. With recognizable electronic fingerprint technology the mix might provide a satisfactory method for sorting out who distributed what and who accessed what and who copied what, with permission or without, for image, sound, and text artforms.

4. Transcopyright: Conceived by hypertext progenitor Theodore Nelson, Transcopyright would permit a chunk of electronic information (a musical performance, a short animation, a photograph) always to show its origin and the terms under which it might be used. Web searchers stopping at such a work would be able, on the spot, to choose to access the work or not, and the exchange of information-bits for money-bits would take place at that moment. Credit to the original source of the material would always be plainly apparent.

It's clear that the web and digitized (and digital) works of art are not yet smoothly integrated. So perhaps there are directions to consider, discussions to chew on, questions to ask, committees to join, letters to write, and so on, recognizing the disorganization for what it is - a chance to affect the agendas and their eventual outcomes. We can look to the Muses, Euterpe (music), Melpomene (singing), and Clio (history, to remind us of the space-time continuum). We can look to existing law, custom, and theory. We can sit comfortably, or dance expressively, or walk aimlessly while we ponder. And we can look at, listen to, and participate in the art forms we love. Inspiration has lived there for a very long time. That's it - maybe we just need to recognize what has come before, learn it, and do a riff on it. That might do it.

 

About the Author:

Anne Carley edits the Arts4All Newsletter. She likes to improvise.

 

Resources:

The story of George Harrison and My Sweet Lord can be found in the book: Stan Soocher, They Fought the Law available from its own site: http://www.theyfoughtthelaw.com A relevant narrative is at http://www.mazurpr.com/foug htlaw_p061098.html

For more information on Zoltán Kodály (1882 - 1967) [his last name is pronounced koh-dye] consult http://www.music.indiana.edu/kodaly/kodaly.htm

Charles Ives (1874 - 1954) was in turn borrowing from something his father, the bandleader George Ives, had actually done in concert - setting two bands at playing simultaneously two separate songs. Learn more about the Ives family from http://w3.rz-berlin.mpg.de/cmp/i ves.html

Mevlâna Jalâluddîn Rumi (1207 - 1273), a pre-eminent Sufi thinker and philosopher, lived his adult life in Turkey. His native language was Arabic-influenced Persian. More about his life is available at http://www.sufism.org/books/dayex. html

Edward Samuels analyzes the meaning of the 2LiveCrew case in Campbell v. Acuff-Rose: Bringing Fair Use Into Focus? http://www.cmcnyls.edu/publ ic/MLP/FairUse.HTM

The complete article that mentioned the popularity of cloning is: Julia Keller, The End of Originality, Chicago Tribune Internet Edition 9 April 2000 at http://www.chicagotribune.com/leisure/artsa ndentertainment/printedition/article/0,2669,SAV-0004090034,FF.html

An explication of some of the current tensions between the commercial musical recording companies and the wildcatters on the Internet is: Scott Rosenberg, Napster - friend or foe?, Salon 30 March 2000 at http://w ww.salon.com/tech/col/rose/2000/03/30/napster/print.html

For more detail on the layers of complexity in visual imagery on the Internet, see Anne Carley, Who Owns the Mona Lisa? http://www.silentpc.com/monalisa.html

Mendler v Winterland, the 9th Circuit Court of Appeals decision on photography can be read at: http://www.laws.findlaw.com/9TH/9816061.html

Bridgeman v Corel, the federal district court decision on scanning can be read at http://www.nylj.com/deci sions/99/02/022699ba.htm

Ted Nelson's Transcopyright scheme is described at http://www.zdnet.com/zdtv/screensavers_story/0,3656,2127396-2102293,00.html and Nelson's own presentation is at http://www.sfc.keio.ac .jp/~ted/TPUB/TPUBsum.html