Uncertain and Unverifiable: Jazz Metadiscography and the Paradox of Originality

Epperson, Bruce, ARSC Journal

While copyright law may not have caused the precipitous end of jazz ... it will not stop jazz's descent with its ill-fitting doctrines ... copyright's inability to fully comprehend and incorporate its own sine qua non-originality--lies at the heart of all these problems.

Harvard Law Review, 2005 (1)

"[W]e throw our hands up in the air and exclaim what a mess the field is ... unscholarly behavior, not to mention ugly and unethical behavior, has long been a part of jazz, blues and gospel literature." (2) With this dubious eulogy, the era of the ink-on-paper comprehensive jazz discography drew to a close in the late 1990s as the first searchable CD-ROM products were announced. (3) Discography, the systematic listing, description and verification of sound recordings, began shortly before World War II with European jazz aficionados who wanted accurate and complete guides to the unreliably labeled 78-rpm records of the era. While classical music scholars quickly came to appreciate its advantages, for them the practice was essentially an exercise in large-scale cataloging. Western classical music relies primarily on written scores, so recordings are usually secondary material and discographies are likewise ancillary to bibliographies of musical texts. (4) But in jazz, recordings are paramount. Jazz has always emphasized the importance of spontaneous improvisation, and successive studio recordings of the same tune can sound remarkably different. The written score of a jazz song, when it exists at all, may provide only enough information to perform it in a rudimentary manner. The rest is up to the skill, experience and inspiration of the artist. To study jazz one must rely upon sound recordings. (5)

The problem is that detailed information about these recordings has always been hard to come by. Rudi Blesh, one of the first serious jazz historians, recalled that "The record labels told you nothing. The companies' specialty was to document as little as possible, get it on the market as soon as possible, and as soon as sales started to slow to a walk, lose the masters, let them deteriorate, or even destroy them." (6)

The record companies' neglect was slowly and painfully repaired by a group of ardent collector-scholars who began to publish annotated record lists that eventually became known as "discographies." These compilers uncovered the date, time, and place of individual recording sessions; their participants and the songs played; and a list of each session's master recordings by matrix, take or studio control number. (7) Their more recent works may also list modifications to the studio recording such as dubbing, tape splicing, or digital sampling. Finally, they acted as catalogers, listing the various records, albums, tapes, CDs, DVDs, films, digital media or other means by which each recording can be accessed. Once discographers went beyond the role of list-makers to become investigators and compilers of recording data, their work started to attract the attention of jazz scholars who looked to their products to trace the evolution of jazz musicians and jazz music as a whole through its primary source -phonograph records. (8)

After World War II, this dual emphasis on discography as a record catalog and as a historical reference tool created a growing internal tension. Previously, jazz tunes led largely individual lives, each taking up one side of a three-minute, 78-rpm single. As late as 1953, 78s still accounted for 80 percent of the output of American firms. (9) But with the advent of the microgroove long-playing record (LP) and its 23-minute per side capacity, record companies could now release new songs nine or ten at a time - or re-release as many as fourteen of the old 78 tunes. The result was what one discographer called "The Flood." (10)

By 1955 the major firms turned to LPs and small independent labels switched to RCA's new 45-rpm single, a mating of the 78's three-minute format with the LP's microgroove technology. In 1958 over 5,200 different 45 singles and about 2,300 LPs were pressed. (11) Allowing for overlap (a tune issued in both 45 and LP), the American industry was probably generating about 24,000 different tracks a year by the mid- to late 1950s. Perhaps six thousand of these were jazz, blues, gospel or other forms of African-American vernacular music.

The discographers' task threatened to become unmanageable. Should they focus on cataloging, tracking each known and new master recording as it was issued on a widening array of commercial products, or should they instead concentrate on the historian's role of improving the source information by digging through archival records and oral histories to fill the gaps about what was recorded by whom on a given date at a particular location?

Academic scholars narrowed their research, focusing on individual artists, record labels or single nations to produce "solid authoritative publications on reputable academic presses." (12) On the other hand, a small, dedicated band of independent researchers, enthusiasts and entrepreneurs pursued the dream of an all-inclusive jazz discography that incorporated all artists, genres, sessions, matrix numbers and commercial issues. While these "metadiscographies" attracted individuals "of remarkable industry, imagination, and even genius," their efforts eventually became plagued with "questions of accuracy, copying (less charitably called plagiarism) and citation." (13)

Yet the academy's preferred approach was not without its own pitfalls. Users found the resulting information fragmentation frustrating and inefficient, and some musicologists feared that "splintering and confusion within the field as whole--not just comprehensive discographies, but all--has been furthered by the proliferation of specialist publications." (14) Moreover, by the late 1990s, even the most scrupulous academic publishers were forced to admit difficulties in achieving acceptable authority control, no matter how confined the subject. Allan Sutton, editor at Mainspring Press, a publisher of discographies, acknowledged that while "[t]here's been a great deal of pressure ... for documentation of sources," he was finding that "figuring out what those sources were ... will be a different story, especially with so many of the older jazz researchers now deceased, soon to be deceased, or likely not to cooperate." (15)

In the summer of 2000, a specialized jazz bio-discography released by another publisher was recalled amid charges of improper and inadequate accreditation--despite the fact that their standard author contract required a discographical sources essay, which the initial copies of the book apparently lacked. After reviewing the citing systems used in fifteen book-length discographies covering classical, jazz, ethnic and popular music, Tim Brooks, in a 2000 article in the ARSC Journal, concluded that only two--both classical--were adequate to permit accurate source tracing. (16)

The confluence of these forces led to a situation where commercial publishers, largely unfettered with the concerns of scholarly conventions, established the controlling order. The academic concept of plagiarism as a standard of conduct was replaced with the legal formalism of copyright infringement. The two, of course, are not the same. Plagiarism focuses on the creative process while copyright looks only at the creative result. (17) While most western nations generally allow some information extraction from compilations, American law is particularly permissive. Its Constitution extends copyright protection only to "authors," only for "writings," and only if the copyright promotes the "progress of science and useful arts." (18) As one commentator notes, it is the factual researcher who suffers from this "authorship clause":

One who explores obscure archives and who finds and brings to light public knowledge of little-known facts or other public-domain material has undoubtedly performed a socially useful service; but such service in itself does not render the finder an "author." (19)

The old pre-1976 U.S. Copyright Act contained an ambiguity that some courts interpreted to mean that dictionaries, encyclopedias, directories, and other compilations should be treated differently and protected if they were the result of a sufficiently "industrious collection." (20) This evolved into what became known as the "sweat of the brow" doctrine, a fundamentally economic argument: if it required extraordinary time and money to acquire a set of facts, and a competitor just took them, he was doing something very similar to theft or false labeling, both long-recognized wrongs. England used an analogous standard it called the "sufficient degree of skill and labor" test, and for ink-on-paper compilations, it is still part of the law there. (21)

But in the United States, the door on "sweat of the brow" was slammed in 1992 when the Supreme Court ruled, in the so-called "Feist case," that factual compilations were copyrightable only if the "selection and arrangement are original," and even then, "no matter how original the format ... the facts themselves do not become original through association." (22) This was true no matter how much time, trouble and expense the compiler spent uncovering and verifying them. "If the selection and arrangement are original, these elements of the work are eligible for copyright," wrote Justice O'Connor, the Feist opinion's author, "[but] a subsequent compiler remains free to use the facts . . . so long as [it] does not feature the same selection and arrangement."

Like the jazz musician, the jazz discographer is ill-served by copyright law - and for the same reason: a fundamental inability to grasp the nature of creativity within the realm of the derivative or transformative work. (23) "The distinctive aspect of jazz itself--the partial use of prior works in the creation of new music--leads to negative consequences in terms of the copyright protections and reduced benefits afforded to jazz musicians," notes the staff of the Harvard Law Review. While it is true that the old record company information already existed, waiting to be found, it was usually so deeply buried or muddled as to be useless. Through hard work and skill the discographer transformed it into valuable data. But after Feist, hard work, skill nor value created authorship. Just as the endless hours a jazz musician spends honing her skills does not legally make her resulting improvisation a composition, the time and money spent by the discographer does not make him an author. The metadiscographer is in an even worse position than the specialist. By emphasizing selection as a yardstick of originality, American law relegates the inclusive discographer to a lower class than the specialist. "The more comprehensive a data collection becomes, the harder it is to protect it via copyright," bluntly notes one legal scholar. (24) Another questions the entire logic of creativity:

[T]he creativity requirement is muddled largely because courts have attempted to articulate the psychological nature of creativity ... One means of selecting information is to include all available information in a certain category. Although "all" is an uncreative principle of selection, can't it result in a compilation that is worth protecting? (25)

Eventually, technology forced the issue. The electronic computer facilitated the development of large, easily manipulated factual compilations. Suddenly, things like discographies had a glitzy new name: database. (26) One didn't even need a typist to extract a compilation any more: a stroke of the enter key could do it. Copyright law soon began to reel. America, after lots of smoke and noise, ended up going nowhere. Europe chose a different course. In 1996, the European Union approved a new Directive on the Legal Protection of Databases. Qualifying compilations, both print and electronic, were now protected Sui Generis, that is, as new and unique entities in their own right. (27)

Congress has not approved an American version of the Database Directive, and as of this writing, there is no federal protection for pure information, and many legal scholars doubt that an EU-type standard can be adopted because of the Constitution's authorship clause. Without extending database rights backwards in time to embrace pre-electronic compilations, a database law linked to protectable software could create a de facto "first to the floppy" standard for data ownership. This dilemma is just the latest twist in the sixty-year history of the jazz discography, its painful life as a "compilation," its awkward evolution into a "database," and the social and economic turmoil left in its path.

A brief digression …

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Publication information: Article title: Uncertain and Unverifiable: Jazz Metadiscography and the Paradox of Originality. Contributors: Epperson, Bruce - Author. Journal title: ARSC Journal. Volume: 39. Issue: 2 Publication date: Fall 2008. Page number: 215+. © Not available. COPYRIGHT 2008 Gale Group.

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