Questions of appropriation and copyright are in the air.
Sam Smith and his co-songwriters will have to pay Tom Petty royalties for “Stay With Me,” his Grammy-winning song, because of its melodic similarity to Petty’s “I Won’t Back Down.”
And the estate of Marvin Gaye was awarded $7.3 million by a jury in litigation over Robin Thicke’s “Blurred Lines” and its similarities to Gaye’s “Got to Give It Up.” As the Times points out, the award is one of the largest in the history of copyright law — or it is believed to be — and it does not come without its critics, myself included.
judge got it wrong. RT @KaletJournalism: “Blurred Lines” on @ the wedding — real stretch 2 call it musical version of plagiarism. #musichttps://www.blogger.com/blogger.g?blogID=28006963#editor/target=post;postID=7951920980812836202
— Hank Kalet (@newspoet41) March 15, 2015
My tweet was a bit flip, to be sure. The songs have similar sounds, though I do not believe they share as much DNA as the jury found. And, more significantly, I believe the award ignores how the creative process actually works and how we internalize the art that is in the ether and what role appropriation plays in the creation of new art.
Think about T.S. Eliot’s “The Waste Land,” or William Carlos Williams’ Paterson. Both make use of secondary sources, weaving other voices and texts into the larger artwork to create something new. Think about W.D. Snodgrass’ “After Experience Taught Me,” which alternates couples written by Snodgrass with quotatons from Spinoza, formatted as couplets, and which lacks the kind of footnoting or attribution one might expect to find in an academic paper.
Artists make use of whatever materials are available. (This is, in part, at the center of the controversy over Kenneth Goldsmith’s recent reading of the Michael Brown autopsy as a conceptual poem — see the debate on my Facebook page and on Ron Silliman’s. There are other issues in play on this one, including race and whether the art produced was worthwhile.)
The Recording Academy of America weighed in on the issue — sort of — by not including Petty and co-writer Jeff Lynne on Smith’s Grammy award because, as Bill Freimuth of the Recording Academy told CNN, “Lynne and Petty didn’t do any new writing for this work.”
(W)e are considering their original work to have been interpolated by Napier, Phillips and Smith for ‘Stay With Me,’ ” said Freimuth, the Senior Vice President, Awards. “Lynne and Petty will not be considered nominees nor will they be considered Grammy recipients, should the song win. Rather, they would be given certificates to honor their participation in the work, just as any other writers of sampled or interpolated work.”
Interpolated — I think that is a good word. I interpolate often in my work — quoting material from a variety of sources, from documents and interviews and song lyrics and TV shows and films and news reports and so on. I make an effort to note these “interpolations” in each case, though the attachment of notes to poems in literary journals is at best spotty.
My concern is outlined nicely by Noah Feldman in a Chicago Tribune op-ed. Feldman says the case focused on what he called “the moral theory of copyright,” which “focuses on the inherent right of a creator to control the thing created,” rather than on “social utility” or actual harm (i.e., the question of whether “Blurred Lines” interfered with the Gaye estate’s ability to sell the Gaye song and earn money from it).
The problem with the “moral theory,” Feldman says, is that “it has perverse effects on artistic creation.”
The permanent control over the author’s work sounds appealing — except for the fact that we don’t actually control our children in perpetuity. In fact, nothing we create belongs to us forever, particularly if we choose to sell it.
What’s more, future artists need to make art that refers to the works of their predecessors. If you don’t think Thicke is much of an artist, the same can’t be said of Williams, who according to Thicke’s testimony at the trial, actually wrote the song. I’m not saying Williams is anywhere near the level of Gaye, but he’s certainly a creative artist, with a varied oeuvre of songs written for himself and others. Williams and his songwriter colleagues, like all artists and authors, work by incorporating, commenting on and transforming earlier works.
The goal of copyright, he says, “should be to maximize the creation of valuable works of art.” The Thicke song, he says, does not infringe on that.
Would Gaye have written “Got to Give It Up” in 1977 even knowing that its bass line might be ripped off in 2013? Of course he would have. He and his heirs have had 38 years of opportunity to profit from the song’s proceeds.
Indeed, “Blurred Lines” probably had the effect of increasing sales of Gaye’s work, not functioning as a market substitute for them. Williams and Thicke (and yes, Ratajkowski) were effectively referring knowing listeners back to the Gaye tradition, where they might download songs and even buy albums.
“Blurred Lines” therefore increased artistic creation.
Ultimately, he says, “the finding against the song will inhibit future artists who want to produce work inspired by earlier music,” which “will be a cost to artistic creation.”
Timothy Wu, a first amendment lawyer, makes similar points in his appearance on The Brian Lehrer Show yesterday. He said “the case became a case about whether people thought Robin Thicke was … a buffoon and everybody agreed that he was a buffoon.” But whatever appropriation occurred was one of style and not enough of substance — i.e., the use of specific notes tied to the sheet music (Gaye’s family, according to reports, only owned the written music and not the recording rights). It is not enough to borrow a style, Wu says.
Artists are always borrowing from each other, and not only in the musical arts. Picasso and Georges Braque borrowed each other’s styles and everyone else who wanted to be a Pointilist borrowed that style, the Impressionists, you name it. Authors will write in the style of Hemingway, in the style of genre writers. Stylistic borrowing is what we call creativity.
It is not new, he adds, “this has been since the Jurrassic times.”
The point is that creativity presents itself in multiple ways. Mark Levisohn, one of Gaye’s attorneys, was wrong when he said on Lehrer that we start every work as a blank slate, that there is never the intention to copy. Artists engage in conversations with the past by using the past both critically and as homage. We can’t escape the past or the fact that past art is, as I said, in the ether. There is a larger cultural consciousness from which we borrow and to which we add, and the danger of these cases is that they could leave artists looking over their shoulders for the lawyers rather than looking back to see how they fit in to the broader traditions.
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Hank Kalet 