Copyright, the Work and Phonographic Orality in Music

AuthorJason Toynbee
DOI10.1177/0964663906060976
Publication Date01 March 2006
Date01 March 2006
SubjectArticles
COPYRIGHT, THE WORK AND
PHONOGRAPHIC ORALITY IN
MUSIC
JASON TOYNBEE
The Open University, UK
ABSTRACT
Shaped by a combination of romantic aesthetics and capitalist economics in the 19th
century, the musical work was only enshrined in copyright law at the beginning of
the 20th. However, even as the distinctiveness of the work was being legally inscribed,
there emerged a new form of popular music making based on iteration. The recorded
blues depended on continuity with other record-songs rather than the uniqueness of
the individual work. Significantly, the phonographic orality at stake here was effec-
tively unregulated, with ‘plagiarism’ being tolerated. The contrast is then with the hip
hop genre. This has the same iterative mode as the blues, yet with the later style rights
owners have become quite litigious, and now guard their symbolic property jealously.
Focusing on the USA this article examines the differences between the two moments
of blues and hip hop by analysing some key music copyright cases. It argues that
despite stronger legal scrutiny of phonographic oral production in the contemporary
period, this does not represent straightforward censorship in the way suggested by
some commentators. Rather recent cases show the deep contradictions in copyright
law between principles of uniqueness and tolerable continuity, and between the
codification of physical sound and formal structure in music. These contradictions
are inherent in the capitalist organization of music making, and are not susceptible to
any quick policy fix.
KEY WORDS
authorship; blues; capitalism; copyright; hip hop; Marxism; musical work
SOCIAL &LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(1), 77–99
DOI: 10.1177/0964663906060976
INTRODUCTION
THIS ARTICLE argues that the concept of the musical work, which lies at
the heart of copyright law, emerged during the 19th century as a result
of the intersection of developments in aesthetics, technology and
music markets. As the work-concept became dominant in western culture,
and then in law, it not only helped to define the nature of music, it also spec-
ified the tasks of music makers. Two distinct roles were assigned: composer
and performer. Significantly, such a way of conceiving music was enshrined
in legislation in the USA at the start of the 20th century. This was the moment
when a new reproductive medium, the recording, was beginning to compete
with printed sheet music as the dominant commodity in music markets. And
intimately connected to the rise of the recording was a new kind of musical
culture. We might call it phonographic orality; its most significant style was
the blues. Here elements of African musical practice were combined with
production methods which depended on recording and listening to record-
ings. The resulting music was iterative-variative in structure, rather than
strongly differentiated as in the case of musical works. More, the
author–performer distinction was of negligible significance. Blues records,
one might say, were authored in and through performance.
The problem has then been that this way of making music (now taking
new forms through the use of another iterative technology, digital sampling)
does not conform to the work-concept on which copyright law was based.
Why this should be so, and to what effect, are central questions for the
present article. In addressing them the focus will be on the USA, home of
blues and hip hop, and the techno-cultural matrix in which phonographic
orality developed. To understand the formation of the work-concept,
however, we need to look at a rather wider domain: Europe and America, or
in more general terms, the societies of western modernity.
THE COMING OF THE WORK:
AESTHETICS/TECHNOLOGY/MARKET
What is the musical work and why is it so significant for copyright? The key
issue here is the constitution of music as a genre, in other words as a particu-
lar type of symbolic artefact. The work, we might say, is the officially recog-
nized text unit of the genre, music, and as such the object of copyright law.
In a recent article on film, Anne Barron (2004) has argued that, as well as
considering copyright law in terms of the way it regulates intellectual
property, we should also pay attention to how it represents its objects as text,
in this case, film. As she points out, the two aspects are strongly interrelated.
The need to delineate film as a commodity necessarily impinges on the way
its signifying functions are defined – and vice versa. More than this, the two
aspects are in tension, in that each has a set of distinct imperatives (p. 181).
Barron’s discussion of the contradictory dynamics at work in film
78 SOCIAL & LEGAL STUDIES 15(1)

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