Copyright Law's Musical Work
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
| DOI | 10.1177/0964663906060985 |
| Author | Anne Barron |
| Subject Matter | Articles |
COPYRIGHT LAW’SMUSICAL
WORK
ANNE BARRON
London School of Economics, UK
ABSTRACT
This article addresses and contests a particular narrative about the history of copy-
right law’s engagement with music, an exemplary version of which is to be found in
Lydia Goehr’s highly influential The Imaginary Museum of Musical Works (1992).
According to this narrative, copyright law’s conception of the musical object that it
protects by means of a property right derives from an aesthetic conception of the
musical ‘work’ that itself emerged from the field of musical practice, theory and criti-
cism around 1800. Yet an analysis of the case law arising under the first modern copy-
right legislation of 1710 shows that copyright was recognized as vested in the
composer of a musical ‘writing’ as early as 1777 in England, and that an embryonic
legal ‘work-concept’ had already taken shape a decade or more earlier than that. This
concept developed through a complex set of articulations between the doctrinal logic
of property law and, especially, economic and aesthetic understandings of what a
musical artefact was and where its value resided. However, far from simply absorb-
ing aesthetic ideas about musical or other cultural practices, it is argued here that
copyright’s categories have developed relatively autonomously of these and other
‘external’ influences. Further, being only relatively autonomous, they have also
actively helped to shape what is assumed – by Goehr and other historians of culture
– to have shaped them. In short, the central claim of this article is that the work done
by intellectual property discourse in forging conceptions of cultural form has been
significant and important, and that copyright doctrine has accordingly played a major
role in producing that plural construct which is known as ‘the’ musical work-concept.
KEY WORDS
literary property; music aesthetics; music markets; music publishing; musical work
SOCIAL &LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(1), 101–127
DOI: 10.1177/0964663906060985
INTRODUCTION: ROMANTICISM, MUSIC AND CONCEPTIONS
OF MUSICAL PROPERTY
INANarticle published in the New Left Review in 2002, Sven Lütticken
(2002) points to what he rightly sees as a growing trend towards the use
of copyright law to stifle the criticism, parody and creative reuse of
cultural products of all kinds: everything from film scripts and works of
visual art to the sounds of popular music. ‘In the current climate’, he remarks,
‘virtually every form of quotation and appropriation is regarded as theft, or
at least suspected of being so until proven otherwise’ (p. 90). Lütticken’s
account of how this ‘triumph of legalism’ (p. 96) over cultural creativity
could have occurred is, on the face of it, a compelling tale of the rise, fall and
resurrection of what he calls the ‘Romantic cult of originality’. The shift from
Classicism to Romanticism as the dominant movement in the practice, theory
and criticism of the arts at the beginning of the 19th century brought with it
a consensus that artistic creativity was the antithesis not only of literal
copying, but also of emulation or imitation: using the works of others (or
elements within them) as building blocks for the creation of new works. At
the heart of Lütticken’s analysis is the argument that Romanticism’s ‘censo-
rious attitude’ (p. 95) towards this latter kind of (creative) appropriation is
to blame for the threat that copyright poses to cultural creativity today.
‘Contemporary art and theory may have renounced the Romantic-Modernist
cult of originality’, he asserts, ‘but it has now been restored in law’ (p. 90).
Lütticken’s account of the process by which the Romantic cult of origin-
ality has insinuated itself into the law of copyright can be briefly summar-
ized. Historically, copyright law only proscribed the literal reproduction of
protected texts: it developed initially as a mechanism for regulating tech-
nologies of mass duplication – of which the most revolutionary was the
technology of print – and in these early days its primary purpose was to
enable authors to prevent the wholesale reprinting of entire books without
authorization from, or payment to, the author. ‘Only in the past few decades’
(p. 96) according to Lütticken, has it expanded to cover the creative reuse of
elements taken from protected works, and the result is that copyright law
now proscribes such activities as taking snippets of musical compositions for
inclusion in new compositions; or using themes or narrative devices in new
literary works which are vaguely similar to those of pre-existing works; or
transforming novels into film scripts. This inflation of copyright’s domain is
only explicable, Lütticken implies, as the effect of the law’s absorption of the
cult of originality from the sphere of aesthetics and art theory: in all the above
instances, the taker is figured in Romantic theory and in copyright practice
as offending against an aesthetic – which has now become a legal – prohibi-
tion on copying. Thankfully, however, postmodernist creators, theorists and
cultural commentators have renounced originality, and the ‘art of theft’ is
culture’s counter-attack against the law’s untimely institutionalization of
originality as the mark of a work’s status as an object of property, and of
imitation as the sign of a trespass upon this property. The art of theft covers
102 SOCIAL & LEGAL STUDIES 15(1)
To continue reading
Request your trial