Thursday, March 12, 2015

the blurred lines verdict and some reactions, and some tentative thoughts about the mechanical and internet context in which this verdict happened

So, the verdict was the verdict.

Hip-hop in particular has proudly thrived on borrowed sounds and vibes, and has clashed with the courts over the years because of sampling. In the wake of the ruling, Questlove of The Roots sent (then deleted) a tweet with the hashtag #NiceKnowingYouHipHop. In 2013 he told New York that  “If it were a case of melodic plagiarism, I would definitely side with the estate,” but then explained why he thought Thicke and Pharrell were in the clear:
Look, technically it’s not plagiarized. It’s not the same chord progression. It’s a feeling. Because there’s a cowbell in it and a fender Rhodes as the main instrumentation — that still doesn’t make it plagiarized. We all know it’s derivative. That’s how Pharrell works. Everything that Pharrell produces is derivative of another song — but it’s an homage.
Borrowed sounds and vibes permeate every style of music.  Let's consider some old coverage of David Cope, who developed programs to compose music:

Cope had taken an unconventional approach. Many artificial creativity programs use a more sophisticated version of the method Cope first tried with Bach. It's called intelligent misuse — they program sets of rules, and then let the computer introduce randomness. Cope, however, had stumbled upon a different way of understanding creativity.

In his view, all music — and, really, any creative pursuit — is largely based on previously created works. Call it standing on the shoulders of giants; call it plagiarism. Everything we create is just a product of recombination.
Cope thinks the old cliché of beauty in the eye of the beholder explains the situation well: "The dots and lines on paper are merely triggers that set things off in our mind, do all the wonderful things that give us excitement and love of the music, and we falsely believe that somewhere in that music is the thing we're feeling," he says. "I don't know what the hell 'soul' is. I don't know that we have any of it. I'm looking to get off on life. And music gets me off a lot of the time. I really, really, really am moved by it. I don't care who wrote it."
Eleanor Selfridge-Field, senior researcher at Stanford University's Center for Computer Assisted Research in the Humanities, likens Cope's discoveries to the findings from molecular biology that altered the field of biology.
"He has revealed a lot of essential elements of musical style, and the definition of musical works, and of individual contributions to the evolution of music, that simply haven't been made evident by any other process," she says. "That really is an important contribution to our understanding of music, revealing some things that are really worth knowing."

One of the worries that burbles up to the surface is that pop music seems to be flattening out and homogenizing.
Why?  Well, one working theory is that corporations don't take risks on music that's very new or very different on the one hand.  On the other hand, more in the direction of Cope's ideas, humans were never that inherently inventive or creative to begin with and the era of mass computation and cross-cultural analysis and recording have enabled us to better quantify how many kinds of ruts we've written ourselves into as a race and how deep those ruts go.
Coming at this as someone who listens to and composes what is colloquially known as classical music it's interesting to see writers and musicians fret about the decline of the popularity of their favorite musical idioms.
IS the crisis a loss of real musical appreciation?  Maybe not, maybe there's something else going on.
The Medieval church. The 18th-century court. The 20th-century university.
Artists have to eat, and the ways they have found to put food on the table throughout the ages have provided equivalent fodder for their inspirations. Whether their goal is to elevate a divine entity, a royal personage or scientific inquiry, these arts patrons have dictated, either directly or through habituation, the artistic emphases of their eras.

The word on the street now is that the 21st century is the age of entrepreneurship.
It could be the crisis is within what may be loosely called the patronage system.  In classical music composers could take somebody else's ideas and fiddle with them and things were okay.  Brahms could compose a set of variations on a theme by Haydn and it would go over fine.  Haydn could compose a theme and someone like Thomas Wenzel Matiegka could take one of Haydn's lieder and compose a sweet set of variations on it for solo guitar.  The point here is Haydn didn't necessarily care that his work was getting copied outright or made the basis of derivative works because he was already paid by his patron.  The patron ensured he could make a living and through that could dictate, more or less, some parameters about what sorts of music Haydn composed.
If in the medieval era the Church funded the arts; if in the 18th century courts funded the arts; and in the 20th century universities gave artists things to do, it may not be that the 21st century is really the age of the entrepreneur, not when we look at the styles of music people actually listen to. 
No, it seems that the patronage system in the 21st century "could" be an entrepreneurship model but it's more likely to make sense if we describe it as a corporate model, where corporations finance and promote artists they believe in.  Though it may be crude to put it this way, The Beatles are the apotheosis of corporation sponsored popular culture.  While rock and pop critics may bemoan the middlebrow pop culture frequently IS the middlebrow.  There's nothing in Revolver that gets even a fifth as trippy as choral music by Xenakis. Bartok's string quartets were violently psychedelic before Jimi Hendrix was born. 
But as Kyle Gann has put it, the distinction between "classical" and pop can be construed as a difference between philosophies about timbre:
In short, the pop record has turned its fans into cognoscenti of precise timbres. One reads constantly how proud they are of being able to recognize a tune or album from the first split second of a single note. There are possibly classical music mavens so familiar with recordings of the Brahms symphonies that they can recognize which orchestra is playing from the first note; but what does that have to do with Brahms's intentions? Most instruments are neutral, and can be easily dissociated from the music they are associated with. We can hear a piano without being disappointed that it isn't Chopin or Horowitz or Bud Powell, we hear an oboe without thinking of Mozart or Strauss, even an accordion without necessarily thinking of polkas. But trap sets and electric guitars, at this stage of the game, are not neutral, and cannot be bent to any compositional use the composer imagines. They make musicians want and expect to hear a certain kind of energy and virtuosity, and no music that fails in that comparison will be well received.
As has been noted here before, more than a century ago John Philip Sousa was willing to admit to being an alarmist about machines being used to broadcast and record music.
John Philip Sousa,
The Menace of Mechanical Music
Originally published in Appleton's Magazine, Vol. 8 (1906), pp. 278-284.
Under such conditions the tide of amateurism cannot but recede, until there will be left only the mechanical device and the professional executant.  Singing will no longer be a fine accomplishment; vocal exercises, so important a factor in the curriculum of physical culture, will be out of vogue!
Then what of the national throat?  Will it not weaken?  What of the national chest?  Will it not shrink?
When a mother can turn on the phonograph with the same ease that she applies to the electric light, will she croon her baby to slumber with sweet lullabys, or will the infant be put to sleep by machinery?
Children are naturally imitative, and if, in their infancy, they hear only phonographs, will they not sing, if they sing at all, in imitation and finally become simply human phonographs -- without soul or expression?  Congregational singing will suffer also, which, though crude at times, at least improves the respiration of many a weary sinner and softens the voices of those who live amid tumult and noise.
He would have probably found the era of the iPod hugely troubling and offensive. He would find that a majority of American citizens hear the majority of their music mediated by machines with menus rather than through hearing live performance, let alone performing the music themselves, troubling.  The trouble would probably be exaggerated but it could be understandable.  It's interesting that the thrust of Sousa's worry is that the amateurs would dwindle.
A complaint that may be worth registering now is that when people talk about music it's often not really even about the music.  From a piece by Ted Gioia
Few can remember a time when music wasn’t a tool of self-definition, but until the second half of the twentieth century this was only a small part of a song’s appeal. For most people living in the world, circa 1920, music was embedded into their life, not chosen as a lifestyle accessory. But gradually, over the next several decades, music’s value as a pathway of personal definition came to the forefront of our culture. Sometimes the shift was barely perceptible, but in retrospect we can gauge its profound impact. For example, people in rural America didn’t choose country music during the early decades of the 20th century, but were literally born into its ethos; yet by the ’70s, country music had evolved into a lifestyle choice, a posture adopted by millions who never roped a steer or herded cattle, but still wanted to affiliate themselves with the values espoused by the songs. By the time we arrive at the age of disco and punk rock, the music consciously builds its appeal on lifestyle considerations.

Record label execs and critics never actually announced that they had given up on music as music, but their actions made clear how little faith they retained in its redemptive power, how much they craved the glamour of other fields. They acted as if music were a subset of the fashion or cinema or advertising industries. Songs became vehicles, platforms for something larger than just notes and words. Or—dare I suggest?—something smaller.
I.e. music criticism that is about lifestyle or identity politics is in some sense not necessarily really about the music as music.  Stevie Wonder could sing that music is a world within itself with a language we all understand, but that could only be sung convincingly within a shared musical language.  What if we're switching from the 12-tone equally-tempered chromatic scale and its diatonic offshoots to a seven-tone Thai scale in which the seven tones within the octave are all equidistant?  Suddenly that music that's a world within itself turns out to be a part of an underexplored solar system.  I guess for that there's the heliocentric worlds of Sun Ra ... .
The difficulty that authors have been trying to articulate about the recent verdict is that the problem with it is a precedent it sets in light of our increasing knowledge as a species of how wildly uncreative we actually are, how relentlessly and even unexpectedly recombinant even our most inventive and revolutionary works of art have turned out to be.  Perhaps it could be likened to some lovestruck teenagers who fall in love and have sex and think this is the most amazing thing to ever happen to two human beings and that their respective parents couldn't understand how this all feels ... except for the part where if their respective parents hadn't felt that way the teenagers wouldn't have been born.
And it seems as though the problem is not necessarily, in itself, the intellectual property, just as some libertarians might somewhere propose that by itself fiat currency might not be a disastrous idea.  Couple fiat currency with fractional reserve banking and a series of manipulations of interest rates and the economy could become some giant and unsustainable bubble, maybe?  Well, by remarkably rough analogy, intellectual property in an era before machines and virtually globally indexed search engines with access to nearly every preserved epoch and region of human culture wasn't exactly a problem.  But trying to retain some sense of what IP is for (and what it's for contains the contradictory impulses of preserving the monetary interest of creators while also providing a way for inspiring further work and additions to the shared culture) in light of the changes of the last three decades is messy.  So we get this at Slate:
So in the wake of “Blurred Lines,” musicians face a daunting task. They not only have to fear unintentionally copying three notes. They also have to fear that some other, maybe older or even dead musician, will challenge their great new song on copyright grounds just for incorporating some similar—and maybe very familiar—musical elements.
So how could musicians interact with or react to this verdict?  Probably much as some have already.  Take Dan Deacon in interview ... :
What some of the early rap samplers went through when, all of a sudden, their music became illegal in that way.
Exactly. And copyright law's getting more and more strict, but you can exist in two ways: You can either be remarkably wealthy and license whatever you want, or you can be really obscure and no one's gonna care. But if you're anywhere in the middle, collage becomes difficult. So I really like working with microsamples and sounds that are devoid of their original context, but exist just as a timbral element. [emphasis added]
Like a pixel, in a way, of music. And to get around copyright issues, you can just use it if it's that small?
Well, I would consider it fair use — because it's completely recontextualized. A new derivative work is made, and there's no way to tell what it was. [Laughing] We should really not talk about this. I'm expecting the emails that are like, "We've identified the microsamples you were discussing ... "
Having contributed in a small way to the observation that some local author who had sold quite a few books had not quite adequately given credit to those whose ideas he had benefited from, we live in an era of unprecedented access to information and of unprecedented access to citation. 
We also live in an era in which so much of our culture and our capacity to interact with culture is curated by corporations and governments and, perhaps even more crucially, so thoroughly mediated by machines that there's a real risk of artistically living and dying by the kinds of samples and sounds you pick when it comes to having an artistic life.
I think Sousa was at most partly right and that what he missed was that whatever dearth there would eventually be in the amateur musical life of a community, there would be a trade-off, a trade-off some of us consider to ultimately have been worth some of the trouble--we have access via recordings to every recordable epoch and region of human history.  A lot has been lost to the sands of time but a lot has been preserved.  It may be that every age will tend to have people liking whatever is already most popular in their time and place (which is fine) but we have an opportunity to have musical horizons that encompass the entire global across space and time, within very obvious limits. 

The shame of it is that there is a trade-off here, we can't fool ourselves about who owns this massive recorded legacy, can we?  If the medieval church had some unfair restrictions about what kinds of music it would and wouldn't pay for or endorse; and if 18th century courts were financing the arts to vault their own reputations; corporations have their strengths and weaknesses.  We have to take Bieber with the Beatles, basically, and we have to see that that's how the corporation-based patronage system works.  And in some sense the verdict we're seeing could be another sign of the times.  When mechanical royalties for audio recordings are the basis of a profit for corporations big and small then they're going to police the boundaries in ways that may seem draconian.  It's the kind of thing that maybe couldn't even have happened half a century ago when copyrights lasted 20-some years and had to be renewed or your work would become public domain.  It's not that great artists can't roll with the punches, Duke Ellington's most explosively brilliant creative phase came in reaction to BMI doing an embargo on the work of ASCAP members.  It's just that those of us interested in creating music may have a lot more keeping up to do with legal precedents if we want to stay out of trouble.  The recent verdict has not been met with cartwheels of joy, but perhaps we can take a long view and see that artists in various times and places have had to work around rulings and rules that seemed pretty punitive. 


Another thing the ruling may tell us about our culture is that in early 21st century American culture, particularly pop culture, we are living in the first century in which basically our entire pop cultural ecology is NOT generally featuring stuff in the public domain.  That's another sense in which this kind of court case and associated ruling seems like it couldn't have even been possible a half century ago because copyright laws in the US had not been modified to conform to more international norms. 

What may signal the poverty of our pop culture might not be that all the popular songs sound the same but that in an age in which all our pop culture is mediated through mechanisms and legal precedents that have no place for what is construed as public domain some company or some songwriter or publisher can potentially point to anything that isn't classical music these days and build a case for how and why it's probably cribbed from something this or that copyright holder has an interest in.

So in that sense it might be great that classical guitarists keep playing transcriptions of Albeniz and Bach, right? ;)

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