Are Bad Copyright Laws Killing Jazz And Harming Jazz Musicians?
from the play-it-again dept
We recently wrote about Daniel Pink’s new book Drive and how there are some situations where money is not just the wrong motivator for creativity, but it can actually harm creativity. While some in the comments falsely interpreted that to mean money is never a motivator or that it somehow means everyone should give up their money, others did have many thoughtful responses. That discussion got Ray Dowd, a copyright litigator in New York, thinking about a variety of topics related to motivation and copyright, noting that if the key point of copyright is to create incentives for creativity, the studies covered by Drive certainly should be an important part of the larger discussion.
From there, he goes through a variety of situations where copyright is clearly harming creativity, rather than helping it, including a discussion on the bizarre notion that satire cannot be fair use, but parody can be. However, where it gets most interesting, is when he discusses how copyright, and the more recent draconian enforcement of copyright law, is having a massively negative impact on jazz and jazz musicians:
When the Copyright Society had its convention in New Orleans a few years back, I was struck by the plight of Jazz musicians: they didn’t have the right to a compulsory license. So a bunch of white kids doing an exact cover of a Led Zep tune can force Led Zep to license the song at a cheap rate.
But Jazz – which remixes, rearranges and is an art form that is derivative – can’t get a compulsory license, and the changes and modifications to the original can’t be protected without an additional license from the copyright owner – even though a sound recording in a cover song can.
According to the jazz musicians, the licensing practices of copyright owners have put them out of making a living and basically strangled their creativity. It was a heartbreaking presentation. Jazz and its successors which rely on sampling, borrowing, remixing – all activities emanating from African-American traditions – have been severely penalized, to the point of practical extinction.
That’s a clear, concrete (and, as a jazz fan, depressing) example of an area in which copyright is clearly doing the exact opposite of its intended purpose. I’m really curious to hear from defenders of the copyright status quo (or who believe in even stronger copyright protections) to see how they defend this situation. I’m also reminded, yet again, of James Boyle’s excellent chapter on how soul music owes its very existence to the fact that copyright laws weren’t enforced that strongly a few decades back (and, the laws themselves weren’t nearly as limiting).
In the face of increasing examples of such copyright policies doing exactly the opposite of what they intend, how is it that our elected officials continue to buy the claims from a few entrenched industries, that copyright needs to be made even more strict? How many more musicians have to have their art and creativity stifled?