Copyright and musical creativity

by Rob Tiller

One of the great things about my job as an intellectual property lawyer in a software company is that I get to play with some big ideas. Sometimes it’s fun. But I also have to deal head on with complex legal constructions that cause confusion and mischief. I’m thinking particularly of aspects of patent and copyright law. I’ve written a number of times, including this week on, about the problem of bad software patents that hinder innovation. Another concern is the expansion of copyright law in a way that inhibits creativity.

I was fortunate to hear a lecture this week at Duke Law School by Jennifer Jenkins, who discussed aspects of copyright law as applied to music. She ambitiously took on the entire western tradition, starting with Plato, and was entertaining to boot. Although Jennifer didn’t summarize it like this, her examples suggested that copying has always been a part of the creative process in music. Laws against copying music are relatively recent, and they’re expanding and being applied at a more and more granular level. This blocks an important part of creative activity.

Viewing imitation and copying as creative forces is not the traditional way of thinking about creativity. But the traditional notion that technical innovation is principally the work of lone geniuses makes is largely a myth. There is no single inventive or creative act that does not actually incorporate a long series of preceding inventions or creations. If you look over the shoulders of James Watt, Eli Whitney, Thomas Edison, or the Wright Brothers, the inventions for which they are famous incorporated both many generations of preceding technology and the work of contemporaries. Brian Arthur, in The Nature of Technology looks at this process through the lens of evolutionary biology.

The same is true with music. Each creative musician takes the tools of preceding generations (scales, tunings, harmonic systems, instruments, notation systems, electronics, etc.) and tries to express something that’s both personal and universal. In some musical traditions, literal copying is an accepted procedure. This is certainly true in jazz and blues. It is difficult to imagine how either form could have developed unless later musicians borrowed from earlier ones. The same is true in the classical tradition, where composers borrow from other composers, and musician’s take the composer’s written text and performance norms of predecessors.

Jenifer threw out the idea that social control of music and reining in dangerous new sounds was a continuing theme of western civilization, from the Greeks, through the efforts of the Church in the middle ages, to the lawsuits against sampling by hip hop artists in our time. She pointed out that sampling technology made possible new forms of creativity, which our copyright system has quashed without any careful thought. Our repeated expansion of the term of copyrights has diminished the amount of material that our artists have to work with even as technology has expanded creative possibilities. Expanded copyright assures a wealth transfer from society at large to those with significant copyright assets, but serves no larger purpose. This policy really makes no sense as social engineering. And to the extent that it actually discourages and diminishes creativity, it’s just plain wrong.

The only consoling thought is that no amount of regulation will entirely stop the musical creativity. It is a fundamental human activity, like as eating and talking. If music were outlawed entirely, it would go underground, like alcohol in the prohibition era, or recreational drugs in our time. This may already have happened with certain genres of hip hop.

Until Jennifer’s talk, I hadn’t thought to consider myself particularly lucky that most of the music I work with is old enough to be in the public domain, so I’m not directly encumbered by the copyright problem. I refer to the great European piano music of the eighteenth, nineteenth, and early twentieth centuries. Although the music is written, there are many aspects of it that are unwritten. The tradition is passed along from teacher to student. It is a thoroughly unmodern, untechnological process. It’s a pleasing counterpoint to my highly modern day job.

For example, I got over to Durham again yesterday for a piano lesson with my teacher, Randall Love. Randy is an associate professor in the music department at Duke, and, like me, a graduate of Oberlin. (He was a year ahead of me, but our paths never crossed.) He has a speciality in fortepiano, and I originally went to him with a view to getting deeper into Bach. And I did. But in the past few years, he’s taken me much deeper into my current main interests: Chopin, Liszt, and Debussy. Our lessons are at irregular intervals, which I schedule when I feel it’s time to get significant feedback on a piece I’ve fallen in love with and tried to make my own. They usually last more than two hours. Although we begin by catching up on each other’s news, most of the lesson involves intense concentration and effort.

At the lesson yesterday, I departed from our recent pattern (no Liszt or Debussy) and brought Robert Schumann’s Arabeske Op. 18 and Chopin’s prelude in C. The Arabeske begins as a light, lyrical game but has sections of brooding and dreaming. I thought I played it rather well the first time through, but Randy found many aspects in need of closer examination, such as various ways to treat the appoggiatura. Although we mainly discussed musical issues, such as balance and phrasing, Randy had some interesting ideas relating to technique involving the wrist and arm. He recommended that I consider more arm focus when playing extremely soft.

After I’d played the music I’d prepared, Randy played for me one of Chopin’s most famous concert works, the third ballade. It’s a gorgeous piece of music, and I enjoyed his interpretation. It was a well modulated, thoughtful approach to the musical ideas, with ample sonority in the big parts. What a rare treat to get a personal performance by a concert artist.