Jazz is in trouble. Even if the music is not dead, "a lot of people think jazz is dying." (1) Efforts at diagnosis and attempts to revive the music are difficult because it faces a complicated predicament: the music is suffering both popularly and creatively. Jazz's fall from popularity has been well-documented. (2) Jazz now accounts for less than three percent of total record sales. (3) It does not dominate or dictate pop culture as it once did, and its primary outlet is the small jazz club. To make matters worse, the music seems to be attracting an older following: the median age of those attending jazz events in 1992 was thirty-seven, and by 2002 it had risen to forty-three. (4) Jazz musicians are no longer celebrities, lauded for their genius and inventiveness. Rather, they "are scarcely recognised by anyone outside the hard-core coterie of followers." (5)
The goal of this Note is to show that, while copyright law may not have caused the precipitous end of jazz as a commercially viable and ever-innovative music, it will not stop jazz's descent with its ill-fitting doctrines. This Note assumes that jazz is a "useful Art" (6) worth protecting and promoting, and argues that those creating and deciding copyright law have failed to meet their constitutional charge "[t]o promote the Progress of ... [this] useful Art." The current copyright scheme discourages jazz creation, provides scant protection for the improvised material and performances of jazz musicians, and diverts royalties and performance fees away from the musicians who deserve them. By privileging the composers of the simple underlying tunes that comprise the vocabulary of the jazz language, copyright discourages vital reinterpretation. Finally, through a strained conception of authorship and originality that diverts copyright protection and benefits away from deserving musicians, copyright discourages young musicians from pursuing jazz.
Copyright's inability to fully comprehend and incorporate its own sine qua non--originality--lies at the heart of all of these problems. The contributions and compositions created by jazz artists are not considered original because, technically, they occur within the parameters of an underlying work and are therefore considered "derivative." But the line between an original jazz composition, which necessarily entails borrowing and referencing earlier works, and an arrangement that lacks sufficient originality, is difficult to draw in the jazz context.
This Note analyzes the current copyright scheme as it relates to jazz musicians and music, and explores alternative ways of approaching doctrinal and statutory hurdles in an effort to better accommodate jazz musicians and spur the creation of new jazz. (7) Part I provides an explanation of jazz theory, technique, and form, and also explains the unique importance of revisitation in jazz; in particular, Part I examines the jazz musician's use of "standards." Part II illuminates some of the problems jazz musicians face because they are often not the composers of the standards that comprise a substantial portion of all jazz performances. Part III presents and evaluates two possible doctrinal solutions to these problems: (1) providing full copyright protection for jazz musicians' interpolations of standards, as militated by the application of the "idea/expression" dichotomy; and (2) constituting jazz musicians' use of standards as "transformative use" under fair use analysis. Part IV examines two possible statutory solutions: (1) narrowing the current definition of "derivative work" so that highly original musical arrangements are not covered; and (2) creating a full performance right for sound recording copyright holders. Part V offers a brief conclusion.
I. JAZZ FORM AND THEORY
Many jazz performances are based on "standards." Jazz standards are those pieces "that a professional musician may be expected to know." (8) These standards, sometimes also referred to as "mainstream standards," were generally written in the 1930s, '40s, and '50s for film and Tin Pan Alley or Broadway musicals by non-jazz musicians such as George Gershwin, Cole Porter, and Harold Arlen. …