R.A. 2015: Cover Songs, Musical Borrowing, & Expression

- 8 mins

Ryan Adams’ 1989 remake is getting a lot of airtime on the internet since its release a few days ago. This isn’t surprising: Adams hired an entire string section among other studio musicians to record an entire (good-sounding) cover album of arguably the most popular record of 2014. This isn’t a new practice by any means—ask any person who enjoys music and they can probably rattle off many who have done live performances of other musicians’ albums–but it’s rare that the entire thing gets recorded and released intentionally as a studio album.1 As I ask just about any time I hear a cover song performed, live or recorded: why, exactly?

Disclaimer: I’m not going to answer that question at all. I have a theory about it and it’s not nice toward Mr. Adams.

I tend to think a lot about covers and sampling in pop music in terms of their differences in the eyes of the law. How their governing legal mechanisms differ says a lot about what you can and cannot do with one or the other. In brief: cover songs (and albums) are governed in the United States by a compulsory mechanical license first designed for player pianos at the turn of the century. This sounds scary and anachronistic (which, well, it is, but it works), but boils down to the following guideline: you can cover a song (mechanical) for a pre-determined licensing fee without seeking right-holder permission for performance (compulsory)2. However, copyright law (17 U.S.C. § 115(a)(2), to be exact) specifically limits the compulsory mechanical license to arrangements that don’t change the character of the music (e.g. covers). Derivative works (remixes, recombinant uses including digital sampling, fantasias upon, etc.) require permission of the rights holder before use. This has many implications, but two and a half are pertinent to the things I am thinking about here: 1. derivative uses must be negotiated through contract law ; 1.5. the rights holder(s) can say no or make the terms of the contract impossible; 2. fair use is unbelievably hard-to-impossible to argue here, even without a profit-seeking motive3.

Differing legal standing necessitates differing implications for how the two are used for speech and expression. Lately, I’ve been thinking a lot about civil disobedience following friends of the blog and general badass Alison Macrina & Library Freedom Project’s victory in maintaining a Tor relay at Lebanon Public Library in New Hampshire. Music and sound more generally feature prominently within spaces that promote civil disobedience4. In fact, the composition of a song itself can be an act of civil disobedience, whether as a protest against intellectual property’s stifiling of creativity or against the American police state. However, there is a rhetorical difference between those two that merits examination.

Both recombinant musics and compulsory mechanical covers simultaneously function as a marketplace commodity and a rhetorical gesture towards some kind of history and socio-cultural context in which its message is supposed to resonate. What seems to differ is the popular notion of authorship in each. Take, for example, Pete Seeger’s famous rendition of “Little Boxes.” This isn’t exactly a protest song as much as a political satire–you can fill in the blank with Dylan performances of Seeger or something of the sort. Anyhow–we know this rendition isn’t a Seeger original; Malvina Reynolds wrote and performed the song (though the two were friends)5. Right of public performance aside (this was pre-1972, so the analogy isn’t perfect), Seeger, like Adams, doesn’t have to seek permission to cover this song. He can arrange it how he sees fit, so long as “the nature of the work” isn’t changed; he can do things with it that Reynolds can’t because of his greater social and historical reach, his gender, his connections in the music business, etc. All the while, we view his extension of her work (which I think constitutes modification socio-culturally, if not legally) as valid and warranted since it is legal, despite not being required to consult with Reynolds at all.

Meanwhile, our friends Chuck and Flava above were doing things with “Fight the Power” that are now considered illegal (THANKS, KEVIN DUFFY, FOR SETTING US BACK MANY DECADES WE CAN’T GET BACK)6. Moreover, you’d be hard-pressed to determine authorship in the Public Enemy song as the samples are practically unidentifable save the one actually cited by Chuck D in his first verse (Stubbenfeld’s “Funky Drummer”). Recombinant musical acts of civil disobedience generally don’t have one identifiable legacy author (so to speak) that we can cite; thus, placing the work in its socio-cultural lineage becomes a much more uncomfortable game. Pair this discomfort with the aggression commonly associated with black civil disobedience, black masculinity, and 90s hip-hop and you have a much more abrasive and marginalized expression of speech that isn’t necessarily viewed as valid, warranted, or legal.

Now consider making something like “Fight the Power” today: one would need to individually negotiate hundreds of sample licensing agreements, any one of which can be denied and all of which have the potential to be astronomical in cost, as price is set by the holder with little recourse for the petitioner. Here the rights holder7 holds a power they do not have when governed by the compulsory mechanical license. The practice of denying license & sueing, as well as providing a license that is practically, if not legally, unreasonable8 is an act that threatens artistic, social, and political expression through financial and legal gatekeeping. It is, in legal terms, a valid measure of prohibiting speech.

Prohibiting speech?! Whither first amendment? [HA. Corporations are people, remember?] Whither fair use?!

Fair use struggles to adequately deal with this situation. Analysis of fair use under the law relies on a case-to-case four factor test of transformativeness. Historical analysis of the factors’ applications shows that generally judges don’t like it when you’re a competing marketplace commodity that can hurt the market share of the original work, even if the sample is so slight as to be partially unrecognizable and even if you’re performing parody or social commentary. (^6 again) In effect, going the route of recombinant music as an act of civil disobedience already kind of puts you in illegal territory by default. Just ask Girl Talk. (It’s okay, Girl Talk fans: Gregg Gillis is white. I don’t see him being served any time soon.) Speaking from that position already ensures a different reception and a different audience.

What does that mean? A few ideas:

-Recombinant music composition from a marginalized position/voice can be more readily weaponized. Consequently, it can also be put down with more legal force. -The phenomenon of cover songs and digital sampling in popular music under US copyright restrictions may merit an examination using settler colonialism. -Three bullet points looks cool. Anything else I am thinking hasn’t taken word shape yet.

  1. I always default to Dream Theater’s performance of Metallica’s Master of Puppets, but it was released as an official bootleg by the band in February 2004 (I think). 

  2. See the Harry Fox agency for a pretty easy-to-use calculator

  3. I’ve written about this in more formal papers, as have countless other people. Joanna Demers’ Steal This Music is probably most appropriate. 

  4. Keep an eye out for a paper by Indiana University musicology professor Phil Ford about/around this. I’m beyond excited for it. 

  5. This is semi-related to my theory about Ryan Adams covering 1989 & white dude self expression using colonial-like tactics. Difference is, Taylor Swift is much more famous and not marginalized in the music scene the way Reynolds may have been with regard to Seeger. 

  6. Yes, music composition has now gotten to a transformative fair use analysis status in federal courts. No, it did not magically fix the copyright lag or our ass-backwards treatment of samples as intellectual property. 

  7. Generally a corporation these days. Late capitalism and the freedom of expression is a topic for a different day. 

  8. Judges take into account the practicality and reasonability of any particular licensing contract during a four factor analysis, particularly with regard to educational fair use. What makes recombination so hard, particularly recombination for profit, is that these licenses are viewed as seperate entities and thus all reasonable within their own right. No mind is given by the law to a work that must negotiate dozens or hundreds of these “reasonable” license contracts. 

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