Steal This Music: How Intellectual Property Law Affects Musical Creativity

Steal This Music: How Intellectual Property Law Affects Musical Creativity

Steal This Music: How Intellectual Property Law Affects Musical Creativity

Steal This Music: How Intellectual Property Law Affects Musical Creativity


Is music property? Under what circumstances can music be stolen? Such questions lie at the heart of Joanna Demers's timely look at how overzealous intellectual property (IP) litigation both stifles and stimulates musical creativity. A musicologist, industry consultant, and musician, Demers dissects works that have brought IP issues into the mainstream culture, such as DJ Danger Mouse's "Grey Album" and Mike Batt's homage-gone-wrong to John Cage's silent composition "4'33." Demers also discusses such artists as Ice Cube, DJ Spooky, and John Oswald, whose creativity is sparked by their defiant circumvention of licensing and copyright issues.

Demers is concerned about the fate of transformative appropriation-the creative process by which artists and composers borrow from, and respond to, other musical works. In the United States, only two elements of music are eligible for copyright protection: the master recording and the composition (lyrics and melody) itself. Harmony, rhythm, timbre, and other qualities that make a piece distinctive are virtually unregulated. This two-tiered system had long facilitated transformative appropriation while prohibiting blatant forms of theft. The advent of digital file sharing and the specter of global piracy changed everything, says Demers. Now, record labels and publishers are broadening the scope of IP "infringement" to include allusive borrowing in all forms: sampling, celebrity impersonation-even Girl Scout campfire sing-alongs.

Paying exorbitant licensing fees or risking even harsher penalties for unauthorized borrowing have become the only options for some musicians. Others, however, creatively sidestep not only the law but also the very infrastructure of the music industry. Moving easily between techno and classical, between corporate boardrooms and basement recording studios, Demers gives us new ways to look at the tension between IP law, musical meaning and appropriation, and artistic freedom.


On July 15, 2003, an MTV Online article announced that the heavy metal supergroup Metallica had filed a lawsuit against a Canadian group named Unfaith. According to author Joe D’Angelo, Metallica accused Unfaith of using E chords followed by F chords without permission, a harmonic progression that Metallica claimed to have trademarked. MTV posted a link to Metallica’s Web site, in which bandleader Lars Ulrich defended the suit as justifiable protection of the band’s distinctive sound. The D’Angelo article received more than two hundred thousand hits within the first two days of its posting and became a hot topic of conversation for several Internet discussion groups. Responses to the allegations ranged from incredulity to outrage. The story was a sign that something (Metallica, the music industry, or lawyers) had abused intellectual property laws originally designed to prevent musical plagiarism.

But by July 17, 2003, Court TV and CNN announced that the lawsuit was a hoax constructed by Erik Ashley, the singer-songwriter behind Unfaith. To the embarrassment of the agencies that reported the D’Angelo story, Ashley admitted he had posted articles on his own Web site, 411mania, that appeared as if they had been published on the MTV and Metallica Web sites. Sincerely or otherwise, Ashley claimed that he didn’t intend for the story to be taken seriously but . . .

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