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BLUES LIVES:

PROMISE AND PERILS OF MUSICAL COPYRIGHT

♦

OLUFUNMILAYO B. AREWA

NTRODUCTION.............................................................................574

I. CREATION AND CONTEXT: BLUES AND THE BIRTH OF ROCK AND

ROLL ..................................................................................576

A. Contexts and Origins of Blues: Legends, Romance, and

Authenticity ..................................................................577

B. Blues as Popular Music: Mining the Mississippi Delta....580

C. The Robert Johnson Puzzle: Uncovering a Murdered

Musical Cipher..............................................................582

D. Blues and British Rock: Cultural Icons, the Diffusion of

Blues, and Reinvention of Blues Tradition.....................588

II. RACE MUSIC: BLUES AND THE RECORDING INDUSTRY .............592

A. Music, Genre, and American Racial Categories ..............592

B. Recording Industry Marketing Practices and the

Construction of “Black” Music.......................................594

III. COPYRIGHT AND BLUES..........................................................596

A. Copying, Creativity, and Creation in Blues.....................596

B. Copyright, Blues, and Hierarchies ..................................599

C. Visual Perceptions of Music and Nonvisual Musical

Reproduction.................................................................601

IV. CONTEXTS OF THE BLUES: CREATION AND REWARD ...............603

A. Robert Johnson and Copyright........................................603

1. Copyright and the Business of Blues ...................603

2. Copyright and Blues Recordings .........................605

3. Copyright Royalties and the Johnson Estate.......611

♦

Permission is hereby granted for noncommercial reproduction of this article in whole or

in part for education or research purposes, including the making of multiple copies for

classroom use, subject only to the condition that the name of the author, a complete cita-

tion, and this copyright notice and grant of permission be included in all copies.

Associate Professor, Northwestern University School of Law. Email: o-

[email protected]. For their helpful comments and suggestions on earlier

drafts of this paper, I am indebted to Paul Heald, Wendy Gordon, Andrew P. Morriss, Jac-

queline Lipton, Roberta Kwall and participants in Professor Kwall’s 2006 Advanced Copy-

right Seminar at DePaul University College of Law, participants at a faculty workshop at

the University of North Carolina School of Law, and participants at the 2008 Law and So-

layo B. Arewa.

574 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

B. Copyright, Lotteries, and Reward .............................612

1. Robert Johnson as Copyright Success Story........612

2. Robert Johnson as Copyright Lottery Winner ....613

C. Copyright Lotteries and Fairness ..............................615

CONCLUSION ................................................................................618

NTRODUCTION

The application of copyright law to music has long been

fraught with complexities and continuing problems. Problems in

the application of copyright to blues music have come to pass, in

part, as a result of the peculiar ways in which copyright has been

applied to nonvisual technologies of musical creation and repro-

duction. In the nineteenth century, music creation and reproduc-

tion reflected a live performance tradition, within a commercial

context in which sheet music was the dominant form of fixed mu-

sical reproduction. Although copyright has been an inexact fit for

music generally,

in a world in which sheet music was the primary

form of fixed musical reproduction, this bad fit was discernible but

far less devastating in impact. In the twentieth century, however,

new forms of musical reproduction became broadly distributed

commercially, including the player piano and recording technol-

ogy in the earlier part of the century. These technologies and

subsequent technological innovations have contributed to prob-

lems in the application of copyright to music.

Uncertainty about applications of copyright in contexts of

new music technologies has contributed to complexity in the op-

eration of music copyright and a general lack of clarity in the mu-

sic copyright space.

This lack of clarity underscores the continu-

ing debate over allocations of rights and distribution of benefits in

the music copyright arena. Events surrounding blues exemplar

Robert Johnson and blues music more generally represent an im-

portant early example of these continuing tensions. Blues first

achieved prominence in the early twentieth century and was

spread through sheet music, a visual form of musical reproduc-

tion, and live performance.

Blues later flourished commercially

Olufunmilayo B. Arewa, From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cul-

tural Context, 84 N.C.

L. REV. 547, 555-56 (2006) [hereinafter Bach to Hip Hop].

Lydia Pallas Loren, Untangling the Web of Music Copyrights, 53 CASE W. RES. L. REV. 673,

675 (2003) (“The layering of copyright ownership interests and the complexity of copy-

right law, particularly as it applies to music, has played a major role in the inability of the

industry to respond to the changing nature of the ways in which digital works can be dis-

tributed and otherwise exploited.”).

ELIJAH WALD, ESCAPING THE DELTA: ROBERT JOHNSON AND THE INVENTION OF THE BLUES

15-16 (2004)

(noting that the first published blues song appeared in New Orleans in 1908,

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 575

as a genre distributed primarily in nonvisual form, which has sig-

nificant business and legal implications. Rather than being based

in the sheet music culture that had been predominant, early blues

music soon came to be reproduced via sound recording technol-

ogy, with the first blues recording appearing in 1914.

The transi-

tion from sheet music to recorded music had significant business

and cultural implications; it meant that live performance could be

encoded, reproduced, and transmitted in nonvisual form. As a re-

sult, early blues recordings reflect an important transition point in

the history of commercial dissemination of music and the applica-

tion of copyright to nonvisual forms of music reproduction.

Therefore, copyright treatment of early blues artists and the to-

pography of incentive and reward for such artists have direct bear-

ing on continuing debates in the music copyright arena today.

The impact of copyright on the lives of blues musicians and

living blues traditions is of critical importance for copyright.

Treatment of particular blues artists can illustrate the operation of

Robert Johnson demonstrates important considerations in the ap-

plication of copyright to music. On the one hand, Johnson and

his posthumous copyright rewards exemplify what many see as the

proper operation of copyright. At the same time, outcomes for

Johnson and other artists may belie assumptions made about in-

centive and reward in copyright. Robert Johnson’s copyright suc-

cesses may actually be more consistent with an incentive story that

reflects copyright as a lottery, which has significant implications

for our assumptions about investments in expressive works and the

distribution of copyright rewards.

This Article discusses challenges that have arisen in the appli-

cation of copyright to nonvisual forms of musical reproduction,

with a particular emphasis on the contexts of musical creation, re-

production, and dissemination of early blues recordings. It fur-

ther discusses how unresolved conflicts evident in copyright today

became increasingly apparent in blues contexts and delineates

some implications of such conflicts for assumptions typically made

in copyright theory about creation, incentive, and reward. Part I

of this article discusses creation and context in blues music, as well

as rock and roll traditions that later emerged from the blues. Part

II focuses on the business contexts of blues, particularly in its ear-

composed by an Italian American named Antonio Maggio, and that when blues became a

musical term in the early teens, recording was still at its infancy and printed music re-

mained the main way of distributing new compositions).

Id. at 17-18 (noting the first recording of a blues composition in 1914 by the Victor Mili-

tary Band, which cut a version of W.C. Handy’s “Memphis Blues” and the first sung blues

on record in 1915 by Morton Harvey).

576 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

liest iterations, and draws attention to the ways in which pervasive

segregation in the music industry diminished the creative role and

compensation of a broad range of artists, including African

American blues musicians. Part III discusses how pervasive bor-

rowing has shaped blues in different contexts and the implications

of borrowing for copyright, particularly with respect to incentive

and reward. The final section of this paper highlights the signifi-

cant implications of continuing tensions in music copyright that

reflect competing assumptions in copyright theory about creation,

risk, incentive, and reward.

CREATION AND CONTEXT: BLUES AND THE BIRTH OF ROCK AND

ROLL

In 2004, Eric Clapton released the DVD-CD Sessions for Robert

and the CD Me and Mr. Johnson,

which paid homage to Robert

Johnson, one of Clapton’s greatest musical influences.

Clapton’s

reverence for Johnson is also evident in live performances in

which Clapton not infrequently plays songs with which Johnson is

particularly associated.

Clapton is not alone in his reverence of

Robert Johnson. The ascension of Robert Johnson to the status of

preeminent representative of early recorded blues traditions re-

flects broader trends in the creation and reception of blues music

in the twentieth century. The prominence and influence of blues

in later musical eras came to pass, in large part, as a result of wide-

spread copying of blues. Blues came to form a key common un-

derpinning of significant portions of twentieth century musical

forms, thus providing an example of how copying can be a crucial

aspect in the creation of vibrant and influential living musical

forms. Although widely copied, blues artists of Johnson’s era were,

in many cases, compensated to a far less degree than they were

copied.

Outcomes for Robert Johnson’s estate, however, were differ-

ent from others of his era. Johnson’s success decades after his

death at an early age is a startling contrast to the circumstances of

his short life and the contexts within which he lived and per-

formed.

In many respects, Robert Johnson did not distinguish

himself musically from his peers during his lifetime.

The legend

ERIC CLAPTON, SESSIONS FOR ROBERT J. (Reprise/Wea 2004).

ERIC CLAPTON, ME AND MR. JOHNSON (Reprise/Wea 2004).

Clapton played Robert Johnson songs during a concert tour in 2008. See Concertahol-

ics.com, http://concertaholics.com/2008/05/28/eric-clapton-concert-review-montreeal-

centre-bell/ (last visited Oct. 28, 2009).

See infra notes 27-87 and accompanying text.

WALD, supra note 3, at 111, 117, 121 (noting that although all were impressed by John-

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 577

of Robert Johnson, however, far surpasses that of his musical con-

temporaries in that Robert Johnson is now the most well-known

bluesman of his era.

Further, Johnson “is the only prewar blues

artist whose records are still widely owned and heard today.”

From his humble beginnings and obscure death,

Robert Johnson

has emerged to become one of the biggest influences on rock and

roll music, particularly through musicians in Great Britain, many

of whom like Eric Clapton, count Robert Johnson as one of their

greatest influences. Robert Johnson was one of the first sixteen

inductees into the Rock and Roll Hall of Fame.

Robert Johnson

is far more famous in death than he could ever have envisaged

during his lifetime. The life of Robert Johnson is thus an impor-

tant one for the history of music, particularly in relation to the de-

velopment of blues music traditions and the rock and roll tradi-

tions that emerged from blues.

A. Contexts and Origins of Blues: Legends, Romance, and Authenticity

The origins of blues remain steeped in mystery and shrouded

in legend.

Blues has roots in African music and African Ameri-

can folk and work songs,

as well as in European musical tradi-

tions. Many commentators trace the first recognizable blues to the

late nineteenth century to early twentieth century.

By most ac-

counts, by the early twentieth century, blues had emerged from

African American communities in the American South.

Within a

short period of time after its emergence, blues had become a

popular music form distributed largely through sound recordings

made by African American musicians for African American audi-

ences.

Although blues sound recordings were based on a con-

son’s musical abilities, including a “powerful voice and uncanny facility on guitar,” John-

son’s debut did not “set the blues world on fire”). Id. at 117, 121.

Id. at 105 (“To many modern listeners he is all of early blues . . . . ”).

Id. at xv.

Id. at xiv-xv (noting that Johnson “died virtually unknown in a rural backwater, without

making any appreciable dent on the blues world of his day.”).

See Inductee List, Rock and Roll Hall of Fame and Museum,

http://www.rockhall.com/inductees/inductee-list/ (last visited Oct. 28, 2009). See also

Matthew Burt, Hellohound on My Trail: Rock Hall of Fame Stages Fitting Tribute to Robert John-

son, B

LUES REVUE, JAN.-FEB. 1999, at 72.

PAUL OLIVER, SONGSTERS & SAINTS: VOCAL TRADITIONS ON RACE RECORDS 260 (1984)

(“When, or indeed how, the blues emerged is a question which has provoked much specu-

lation but, not surprisingly, no incontestable evidence.”).

See ROBERT PALMER, DEEP BLUES 25-37 (1982); see also William F. Danaher, The Influence

of Blues Queens, 1921 to 1929, 48 A

M. BEHAV. SCI. 1453, 1454 (2005).

PALMER, supra note 15, at 44 (noting that blues was so firmly rooted in earlier African

American folk music that identifying when it became blues is difficult to say with cer-

tainty); see also Danaher, supra note 15, at 1454.

RICHARD J. RIPANI, THE NEW BLUE MUSIC: CHANGES IN RHYTHM & BLUES, 1950-1999, 4-9

(2006).

WALD, supra note 3, at xiii-xv (discussing blues as popular music).

578 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

tinuing live blues performance tradition, the types of recordings

that were distributed by companies that distributed so-called

“race” records, of which blues formed an important segment, were

significantly influenced by cultural assumptions about, and hierar-

chies of, race and music. Uses of copyright by music industry rep-

resentatives in their business dealings with early blues musicians

reflected these hierarchical assumptions. The contexts of per-

formance and reception of blues music have, however, not re-

mained static. The blues genre has been reinvented in different

times and contexts by a diverse range of performers for varied au-

diences. In the case of early recorded blues, later treatment of

such music was also significantly influenced by blues collectors,

who played an important role in shaping and preserving the leg-

acy of recorded blues.

Blues is a distinctively American musical form and one of the

most important of such forms.

Blues music is an important ele-

ment in a broad range of other musical forms, including jazz,

country music, rhythm and blues, and rock and roll.

Blues con-

sists of a “definable body of musical elements or traits inherited

from both African and European traditions, that forms the foun-

dational language of much twentieth-century American musical

style.”

The musical characteristics of blues are typically identified

as including a 4/4 syncopated or offbeat phrasing rhythmic struc-

ture, a unique musical mode that may incorporate flatted thirds

and sevenths, and lyrics in a three line stanza in which the second

line repeats the first (AAB).

Blues music, however, represents far more than the specific

musical characteristics that might distinguish it. Blues music has

Id. at 236-42.

RIPANI, supra note 17, at 3-5 (discussing the new blue music that originates in African

American folk music in the mid-nineteenth century that was a blend of various combina-

tions of inherited elements and that was “wholly new and totally American”).

EILEEN SOUTHERN, THE MUSIC OF BLACK AMERICANS: A HISTORY 361–65, 505 (3d ed.

1997) (noting the influence of blues on jazz and rock music); Paul Oliver, Blues, in 21 T

NEW GROVE DICTIONARY OF MUSIC AND MUSICIANS 730-37 (Stanley Sadie ed., 2d ed. 2001)

(noting the influence of blues on the Beatles, Rolling Stones, the Animals and the Who);

Robert Walser, Rock and Roll, in 3 T

HE NEW GROVE DICTIONARY OF MUSIC AND MUSICIANS

486-87 (Stanley Sadie ed., 2d ed. 2001) (noting the influence of blues on rock and roll);

Peter Wicke, Rock Music: A Musical-Aesthetic Study, 2 P

OPULAR MUSIC 219, 222 (1982) (trac-

ing the origin of rock and roll in various rhythm and blues playing styles as well as other

musical genres).

RIPANI, supra note 17, at 16.

Id. at 16-61 (describing characteristics of blues music); SOUTHERN, supra note 21, at 334-

36 (noting three line stanzas, personal lyrics, duple rhythm with marked syncopated pat-

terns, an entire song in twelve bars, and an altered scale with the third, fifth, seventh, and

occasionally the sixth degrees being treated ambiguously and sometimes being lowered);

EFF TODD TITON, EARLY DOWNHOME BLUES: A MUSICAL AND CULTURAL ANALYSIS 137-74

(2d ed. 1994) (describing the musical characteristics of traditional country blues).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 579

also been characterized as representing a view of experience.

Further, the blues musical system, including its lyrical, harmonic,

and melodic conventions, has been characterized as serving “as a

trope in much of twentieth-century black music history in Amer-

ica.”

Some commentators, however, have asserted that commen-

tary emphasizing the blues as a key symbol of African American

vernacular culture may fail to acknowledge the essentialist focus

on authenticity contained within such discussions.

Pervasive dis-

courses about authenticity permeate discussions of blues more

generally.

Despite its widespread popularity over an extended period of

time, blues has been a flexible category subject to many romanti-

cized conceptions. Furthermore, what constitutes blues has meant

different things to different people at different times. Although

the origins of blues remain obscure,

what many refer to as blues

had emerged by the turn of the century as a form of African

American vernacular music.

Although blues music was produced

throughout the American South,

the Mississippi Delta has pro-

duced a disproportionate share of great blues musicians and “was

home to a unique strain of blues music, which has become ex-

tremely influential on the modern-day scene.”

The world from

which blues derived was far from romantic.

In the Mississippi

Delta region, for example, blues took root amidst the abject pov-

erty of players whose parents had in many instances been slaves or

the children of slaves. Social conditions in Mississippi during that

HOUSTON A. BAKER, JR., BLUES, IDEOLOGY AND AFRO-AMERICAN LITERATURE: A

VERNACULAR THEORY 7 (1984) (suggesting that blues be considered as a “forceful matrix

in cultural understanding . . . [whose] performers offer interpretations of the experienc-

ing of experience”).

GUTHRIE P. RAMSEY, JR., RACE MUSIC: BLACK CULTURES FROM BEBOP TO HIP-HOP 45

(2003); see S

AMUEL A. FLOYD, JR., THE POWER OF BLACK MUSIC: INTERPRETING ITS HISTORY

FROM

AFRICA TO THE UNITED STATES (1995); LEROI JONES, BLUES PEOPLE: NEGRO MUSIC

WHITE AMERICA (1999).

RAMSEY, supra note 25, at 45 (noting that some scholars “have recently questioned the

status of the blues as a key symbol of black vernacular authenticity on grounds that stem

from larger critiques of ‘authenticity’ and ‘essentialism.’”).

SOUTHERN, supra note 21, at 332 (noting that “less [is] known about the origin of the

blues than . . . the beginning of ragtime”).

Id. at 332-33, 338 (noting that W.C. Handy, the first man to popularize the blues, pub-

lished his first blues composition, “The Memphis Blues,” in 1912 and first thought about

using it in a composition after hearing a singer in a Mississippi train station and also not-

ing that Gertrude “Ma” Rainey, the earliest professional blues singer, remembered first

hearing the blues in 1902); W

ALD, supra note 3, at xiii (noting that blues was “primarily

black popular music” for the first fifty years of its existence).

See WALD, supra note 3, at 83.

Id. at 83; see Stephen A. King, Blues Tourism in the Mississippi Delta: The Functions of Blues

Festivals, 27 P

OPULAR MUSIC & SOC’Y 455, 456 (2004) (noting that the Mississippi Delta has

been called the “home of the blues”).

WALD, supra note 3, at 82. (“If there is one place and time outside of slavery that black

Americans have no romanticism or nostalgia about, it is Depression-era Mississippi.”)

580 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

time period were characterized by a plantation-based sharecrop-

ping system that “at times seemed little different from slavery,”

segregation, and pervasive oppression of African Americans.

Conditions in the Mississippi Delta today continue to echo these

historical circumstances.

B. Blues as Popular Music: Mining the Mississippi Delta

Since blues has meant different things to different people at

different times, much confusion exists about blues as musical

phenomenon and blues as a marketing phenomenon. Little is ac-

tually known about the early origins of blues music that came to

be recorded and distributed to larger audiences by the 1920s.

Al-

though blues derives from forms of African American music, clear

lines do not always exist between folk culture and popular cul-

ture.

As was the case with later musicians who copied and bor-

rowed from blues, the folklorists and record industry scouts who

mined blues music from the Mississippi Delta were focused on

finding “authentic” forms of musical production.

The activities

of folklorists and record industry scouts gave aspiring and profes-

sional African American musicians during that time period signifi-

cant incentives to produce the type of music that would more

likely offer them the opportunity to be recorded.

This focus on

authenticity reflects a historic emphasis in the folklore discipline.

Id. at 84.

See King, supra note 30, at 459 (describing Mississippi as the “lynching capital of the

U.S.”); see also Frantz Fanon, Racism and Culture, Speech Before the First Congress of

Negro Writers and Artists in Paris (Sept. 1956), in T

OWARD THE AFRICAN REVOLUTION 29,

37 (Haakon Chevalier trans., 1967) (“Thus the blues—‘the black slave lament’—was of-

fered up for the admiration of the oppressors. This modicum of stylized oppression is the

exploiter’s and the racist’s rightful due. Without oppression and without racism you have

no blues. The end of racism would sound the knell of great Negro music.”).

See King, supra note 30, at 460 (“The Mississippi Delta is still segregated and many of its

citizens, especially African-Americans, still live in abject poverty. For example, in 1999,

nearly 75 percent of the black households in the small Delta town of Shelby did not pos-

sess a car.”) (citation omitted).

See SOUTHERN, supra note 21, at 332.

HERBERT GANS, POPULAR CULTURE AND HIGH CULTURE: AN ANALYSIS AND EVALUATION

TASTE 38 (1999) (discussing borrowings in high culture and popular culture from folk

culture); J

OHN STOREY, AN INTRODUCTORY GUIDE TO CULTURAL THEORY AND POPULAR

CULTURE 17-18 (1993) (noting the definitional problems in distinguishing between popu-

lar culture and other forms of cultural production); D

OMINIC STRINATI, AN

INTRODUCTION TO THEORIES OF POPULAR CULTURE 38 (2004) (discussing the differences

between folk, elite, and mass culture).

BENJAMIN FILENE, ROMANCING THE FOLK: PUBLIC MEMORY AND AMERICAN ROOTS MUSIC

49 (2000) (discussing the cult of authenticity surrounding folk music created by John and

Alan Lomax).

See WALD, supra note 3, at 22 (“[B]lack performers were ghettoized, and their access to

the recording world was dependent on their singing ‘black’ music . . . .”).

See REGINA BENDIX, IN SEARCH OF AUTHENTICITY: THE FORMATION OF FOLKLORE STUDIES

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 581

The British musicians who were influenced by blues traditions in

the 1950s and 1960s, however, also tended to view blues through a

particular lens that reinforced existing emphases on authenticity.

This focus on authenticity was also evident in the activities of the

earliest critics and collectors of blues music,

who played an im-

portant role in constructing the blues canon.

This focus on au-

thenticity by varied actors in the blues arena at different points in

time has meant that the corpus of early blues recordings repre-

sents a biased sample.

The magnitude of this bias can only be es-

timated.

The other types of music that early blues recording art-

ists could and did perform have consequently been largely lost.

This focus on authenticity in blues had two important conse-

quences. First, it led many to consider blues a primitive form of

folk music, rather than as a form of music that, like ballet, was de-

rived from folk forms but that also came to be performed by pro-

198 (1997); Ron Eyerman & Scott Baretta, From the 30s to the 60s: The Folk Music Revival in

the United States, 25 T

HEORY & SOC’Y 501, 512 (1996) (noting that the African American

folk musician Leadbelly was coached by the Lomaxes as to his repertoire);

Benjamin

Filene, “Our Singing Country”: John Lomax, Alan Lomax, Leadbelly and the Construction of an

American Past, 43 A

M. Q. 602, 613 (1991) (noting that the Lomaxes worked hard to pre-

serve Leadbelly’s authenticity and at times controlled his repertoire).

WALD, supra note 3, at 46-48.

Eyerman & Baretta, supra note 39, at 503, 508, 510 (noting that American folk music was

invented in the 1930s by an urban intellectual elite with a left political orientation and

that early recording undertaken under the Federal Arts Project of the WPA led to the

creation of an archive or even canon of folk music for future generations and move-

ments).

See Mike Daley, “Why Do Whites Sing Black?”: The Blues, Whiteness, and Early Histories of

Rock, 26 P

OPULAR MUSIC & SOC’Y 161, 163 (2003) (noting that the idea of blues is a con-

structed one influenced by multiple sources, including collectors, critics, and the musi-

cians who reinterpreted the blues for a wider audience); John Dougan, Objects of Desire:

Canon Formation and Blues Record Collecting, 18 J.

POPULAR MUSIC STUD. 40, 40 (2006).

See WALD, supra note 3, at 57 (“[O]verall the recordings left to us by the folklorists and

the commercial companies both tend to give a skewed view of the racial divide in the mu-

sic of early rural performers, and reinforce the impression that such players were limited

to a distinct ‘country’ repertoire.”); Scott DeVeaux, Bebop and the Recording Industry: The

1942 AFM Recording Ban Reconsidered, 41 J.

AM. MUSICOLOGICAL SOC’Y 126, 127 (1988)

(noting the role of the recording industry in the selection process of the existing reper-

tory of bebop recordings in the 1940s); Dougan, supra note 42, at 41 (noting the role of

recording in the transition of blues music to mass art and the relationship of mostly Afri-

can American consumers of blues recordings in the 1920s and 1930s and white, male re-

cord collectors of the post-World War II era who became self-appointed keepers of the

canon); Filene, supra note 39, at 619 (discussing an episode in which the Lomaxes, who

operated closely with prison officials, attempted to get a recording from a prisoner who

was brought to the room at gunpoint and noting that the “Lomaxes did not reflect on

whether going to such lengths to ferret out songs created a skewed portrait of America’s

folk music”); H. Bruce Franklin, Songs of an Imprisoned People, 6 MELUS

6, 15 (1979) (not-

ing that John Lomax collected ten versions of the work song “Go Down Old Hannah”

from Texas convicts).

See WALD, supra note 3, at 47 (noting that record scouts discouraged black musicians

from playing “hillbilly” music, which is why “all but a tiny sample of rural fiddle music”

recorded during the 1920s come from white players); Dougan, supra note 42, at 43 (not-

ing that talent scouts and label executives discouraged artists from recording popular

non-blues songs that would have required that they pay mechanical royalties).

WALD, supra note 3, at 57.

582 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

fessional musicians.

Although the folk tradition existed along-

side professional blues musicians, some of the rural blues musi-

cians who were recorded in the 1920s were professional musicians.

Second, the tendency to see blues music as a primitive form of

collective folk production reflected widespread stereotypes about

African Americans and was part of a conceptual framework of later

borrowers that facilitated the free borrowing of such music, often

without attribution, let alone compensation.

Later borrowers

were, however, not the only ones to profit from early blues artists.

Both folklorists and record industry participants in some instances

claimed copyrights in the music that they “discovered.”

C. The Robert Johnson Puzzle: Uncovering a Murdered Musical Cipher

Robert Johnson was murdered at age twenty-seven. He died

impoverished in obscurity under mysterious circumstances in 1938

at a country crossroads near Greenwood, Mississippi. The circum-

stances of Johnson’s death remained unknown, uncertain and a

subject of much speculation for decades after his death.

Robert

Johnson’s death remains a subject of discussion among blues fans,

even more than half a century after his death.

Although speculation about Johnson’s cause of death still ex-

ists, the best evidence suggests that Johnson, who had a reputation

as a ladies’ man who enjoyed his liquor, appears to have been

given a whiskey drink poisoned by the husband of one of his lov-

Id. at 43; PETER GURALNICK, SEARCHING FOR ROBERT JOHNSON 48 (1989) (noting that

Robert Johnson was a professional musician).

WALD, supra note 3, at 43 (noting that the purveyors of blues recorded in the 1920s were

people who played music for a living, some of whom had other jobs as well).

See infra notes 174-189 and accompanying text.

Ulrik Volgsten & Yngve Åkerberg, Copyright, Music, and Morals: Artistic Expression and the

Public Sphere, in M

USIC AND MANIPULATION: ON THE SOCIAL USES AND SOCIAL CONTROL OF

MUSIC 336, 337 (2006) (describing folk collector Alan Lomax’s copyright claims with re-

spect to Leadbelly); David Marsh, Mr. Big Stuff: Alan Lomax: Great White Hunter, or

Thief, Plagiarist, and Bigot, C

OUNTERPUNCH, July 21, 2002,

http://www.counterpunch.org/marsh0721.html (criticizing Alan Lomax’s refusal to sur-

render income from copyright claims relating to Leadbelly’s music); see infra notes 174-

189 and accompanying text.

Blues researcher and collector, Gayle Dean Wardlow, found Johnson’s death certificate

after years of rumors about where, when and how he died. Wardlow searched from 1965

to 1968 in Mississippi, Arkansas, and Texas and eventually found evidence of Johnson’s

death. Gayle Dean Wardlow, Searching for the Robert Johnson Death Certificate (1965-1968), in

HASIN’ THAT DEVIL MUSIC: SEARCHING FOR THE BLUES 86, 86-90 (1998). See also Harris v.

Johnson (In re Johnson) (Harris II), 767 So.2d 181, 182 (Miss. 2000) (noting that Johnson

died an apparent indigent).

David Connell, Retrospective Blues: Robert Johnson—An Open Letter to Eric Clapton,

333 B

RIT. MED. J. 489, 489 (2006), available at

http://www.bmj.com/cgi/content/full/333/7566/489

(responding to Eric Clapton’s dis-

cussion about Robert Johnson and noting that Johnson’s death may have been caused by

Marfan’s syndrome, which may be indicated by Johnson’s unnaturally long fingers as evi-

dent in his photographs).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 583

ers.

However, many different accounts have been given of his

death over the years, including rumors that Johnson was shot or

stabbed, died of syphilis (the actual cause of death listed on his

death certificate), or died of pneumonia.

Mack McCormick, a

researcher said to have interviewed actual witnesses to Johnson’s

death, corroborates the scenario of murder by poison. According

to McCormick, “[t]he accounts agreed substantially as to the mo-

tive, the circumstances, and in naming the person responsible for

the murder. It had been a casual killing that no one took very se-

riously. In their eyes Robert Johnson was a visiting guitar player

who got murdered.”

Johnson’s death came at a pivotal time in

his career – less than two years after he made his first recordings,

which consist of two discs of twenty-nine recordings made in two

separate recording sessions in 1936 and 1937.

Around the time

of his murder, a leading jazz impresario, John Hammond, was try-

ing to locate Johnson to invite him to appear in a groundbreaking

concert entitled “From Spirituals to Swing” to take place in New

York City’s Carnegie Hall.

Johnson was one of a number of musicians who made their

way through the Mississippi Delta during his lifetime. Although

Johnson is now a cult idol, surprisingly little is known about his

life. Further, as blues musician and Robert Johnson scholar Elijah

Wald has noted, Johnson’s “legend, combined with the many

blank spaces in his story, have created a mass of exaggerations,

confusion, legal cases, and secretiveness that make [any attempt to

create a full biography of Johnson] both frustrating and futile.”

Robert Johnson is now considered the most influential blues

musician from the early period of blues recording.

This was not

always the case, and Johnson was not among the most popular

blues musicians of his time,

at least based on record sales of his

recordings at the time of their initial release.

Nevertheless,

WALD, supra note 3, at 122-24.

Id. at 124.

GURALNICK, supra note 46, at 50.

See ABKCO Music, Inc. v. LaVere, 217 F.3d 684, 686 (9th Cir. 2000) (noting that John-

son recorded twenty-nine songs in two recording sessions in November 1936 and June

1937 before he was murdered in 1938); see also W

ALD, supra note 3, at 126-89 (listing and

assessing all of the recordings made by Johnson in his two recording sessions).

WALD, supra note 3, at 186-87.

Id. at 105.

Charles Ford, Robert Johnson’s Rhythms, 17 POPULAR MUSIC 71, 71 (1998) (noting that

Robert Johnson provides one of the few pre-war influences on rock and attributing his

influence to his pitch and timbre and irregular, syncopated rhythms).

WALD, supra note 3, at xv (noting that Johnson’s music excited little interest among

black blues fans of his time); Ford, supra note 58, at 78 (stating that “Terraplane Blues”

was the only Johnson recording to achieve substantial sales).

WALD, supra note 3, at xv (noting the lack of popularity of Johnson’s music in the re-

584 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

Robert Johnson’s music is described as having emotional intensity

and visceral appeal, as well as important aesthetic and musical

qualities.

Later commentators have typically placed Johnson on a ped-

estal far above those who played during his era,

elevating his

status by using language typically associated with Romantic author

discourse that emphasizes the unique genius of Johnson’s compo-

sitions. Romantic author discourse has generally played an impor-

tant role in defining who constitutes an “author” for copyright

purposes in part by emphasizing the unique and genius-like con-

tributions of individual creators. Romantic author assumptions

are a primary mechanism by which borrowing and collaboration

in creation are minimized or even denied.

This vision of author-

ship has significant implications for the application of copyright to

blues music. The collaborative nature of blues musical composi-

tion does not lend itself well to Romantic author characterizations.

In blues practice, the combination of individual performers craft-

ing material from a collaborative tradition has involved wide-

spread copying, which is contrary to dominant assumptions about

copying and creation in copyright. Later romanticization of his

musical creations aside, Robert Johnson falls firmly within a blues

tradition characterized at least in part by copying, including

through repetition and reuse of existing music and lyrics as a core

aesthetic.

The divergence between Robert Johnson’s actual mu-

sical practice and later characterizations of both the nature and

musical practices underlying his “musical genius” is thus signifi-

cant.

The conceptual positioning of Robert Johnson and his talents

are important for understanding how he became so prominent as

compared with his peers. Robert Johnson is separated from the

cordings released before his death).

James Bennighof, Some Ramblings on Robert Johnson’s Mind: Critical Analysis and Aesthetic

Value in Delta Blues, 15 A

M. MUSIC 137, 138 (1997).

WALD, supra note 3, at xv (“[Johnson’s] music excited so little interest among the black

blues fans of his time, and yet is now widely hailed as the greatest and most important

blues ever recorded.”).

See Martha Woodmansee, On the Author Effect: Recovering Collectivity, in THE

CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE 15, 21

(Martha Woodmansee & Peter Jaszi eds., 1994) (discussing the “modern myth that genu-

ine authorship consists in individual acts of origination”); see also Peter Jaszi, On the Author

Effect: Contemporary Copyright and Collective Creativity, in

THE CONSTRUCTION OF

AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE 29, 40, 48 (Martha

Woodmansee & Peter Jaszi eds., 1994) (noting that assumptions about cultural produc-

tion in existing legal cases discourage artists who use existing materials).

Ford, supra note 58, at 88 (noting that Johnson borrowed and pasted-in materials much

like his predecessors and shaped his pieces into unique and autonomous forms).

Questions concerning repetition and reuse are by no means limited to blues and are

evident, for example, in contexts of software copyright. See Jacqueline Lipton, IP’s Problem

Child, 58 H

ASTINGS L.J. 205 (2006).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 585

broader field of blues musicians by being characterized as a musi-

cal genius and creator of a unique corpus of music:

Robert Johnson became the personification of the existential

blues singer, unencumbered by corporeality or history, a

fiercely incandescent spirit who had escaped the bonds of tradi-

tion by the sheer thrust of genius.

. . . .

Like Shakespeare, though, the man remains the mystery. How

was one individual, unschooled and seemingly undifferentiated

from his fellows by background or preparation, able to create

an oeuvre so original, of such sweeping scope and power, how-

ever slender the actual body of work may have been in John-

son’s case. The sources of his art will likewise remain a mystery.

The parallels to Shakespeare are in many ways striking. The

towering achievement. The shadowy presence . . . . I am not

arguing that Robert Johnson’s art has a Shakespearean scope . .

. .

. . . .

As a lyric poet, though, he occupies a unique position where he

can very much stand on his own. His music remains equally

unique. Not that it cannot be placed within a definable tradi-

tion.

The above characterization of Johnson presents an interest-

ing contrast to an experience discussed by Elijah Wald, who taught

a series of classes on blues history. He played blues music sequen-

tially in chronological order, ending with Robert Johnson. Wald

reports being caught off guard by the reaction of his students:

Finally we came to Robert Johnson, the most famous Mississip-

pian of all. My students had all heard of him, knew he was sup-

posed to be the pinnacle of the Delta style, but most had never

actually listened to his music. Now, as he sang and played, they

looked at me blankly. What was so special about this? Com-

pared to some of the earlier players, Johnson seemed rather se-

date. Why would he be hailed as a musical revolutionary, tow-

ering above his elders and contemporaries?

I did my best to come up with answers, but I was caught off

guard, and over the next months this experience forced me to

rethink much of what I knew—or thought I knew—about blues.

My student’s reaction, far from being stupid or ill-informed, was

closer to the reaction of most 1930s blues fans than mine was.

GURALNICK, supra note 46, at 2, 6, 55-56.

WALD, supra note 3, at 126-27.

586 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

Later characterizations of Johnson and his contributions were

facilitated by the mystery of Robert Johnson,

including his fairly

obscure life, mysterious death, and the lack of any visual represen-

tations or photos of him until some thirty-five years after his

death.

Johnson’s mystery was also enhanced by his alleged con-

nections to Satanism. As the story is sometimes told, Johnson is

said to have received his guitar-playing skills as the result of a deal

with the Devil.

Elijah Wald, who attended the dedication of

Johnson’s grave marker in Mississippi in 1991, describes the scene,

noting that the members of Mount Zion Missionary Baptist

Church where Johnson is said to have been buried “had been a bit

dubious, especially after learning that Robert Johnson was famous

not only for his music but for being involved with satanic forces . .

. .”

Given that an estimated 517 reported lynchings occurred in

the Mississippi Delta (described as the “lynching capital of the

U.S.”) between 1892 and 1927,

the mysterious death of a black

male in the Mississippi Delta during this time period was likely nei-

ther unique nor unusual. The Mississippi Delta, which makes up

one-sixth of the state’s area,

accounted for more than one-third

of the lynchings reported in Mississippi between 1900 and 1930,

and “was legendary for towns with signposts warning black people

not to be caught within their borders after sundown.”

Notably,

the death of Johnson was to some extent extracted from its violent

context and imbued with a mystery that only further contributed

to Johnson’s mystique. As a result, Johnson’s death became a fac-

tor that distinguished him from other blues musicians and “has

spawned more questions and controversies than any other event in

SAMUEL CHARTERS, ROBERT JOHNSON 4 (1973) (“Until his sister was found recently in

Washington, D.C. Robert Johnson’s life was one of the elusive mysteries of the blues.”).

Anderson v. LaVere, 895 So. 2d 828, 831 (Miss. 2004) (noting that Robert Johnson’s

photographs were given to Steve LaVere, a music historian, in connection to a transaction

in which Johnson’s heirs assigned to LaVere the rights to photographs of Johnson and

other memorabilia and copyright to Johnson’s works in exchange for 50 percent of any

royalties to be earned by LaVere for their use).

WALD, supra note 3, at 265-67 (noting the cliché that connects Robert Johnson and the

Devil); see also Gayle Dean Wardlow, Stop, Look, and Listen at the Cross Road, in C

HASIN’

THAT DEVIL MUSIC: SEARCHING FOR THE BLUES 196, 196, 203 (1998) (noting “the present-

day myth that Robert Johnson sold his soul to the devil at a cross road in exchange for

phenomenal guitar skills has no single source” and that record companies in the 1920s

used the devil theme to “depict the dangers associated with playing the blues”).

WALD, supra note 3, at xvii.

King, supra note 30, at 459.

WALD, supra note 3, at 84.

See JAMES C. COBB, THE MOST SOUTHERN PLACE ON EARTH: THE MISSISSIPPI DELTA AND

THE

ROOTS OF REGIONAL IDENTITY 114 (1992).

WALD, supra note 3, at 84.

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 587

blues history.”

The lack of knowledge about Johnson also con-

tributed to Johnson’s status as a blues cultural icon and meant that

many later fans could use Johnson as “a screen on which [to pro-

ject their] dream movie of the blues life.”

Conceptions of Robert Johnson’s work highlight the context-

dependent nature of notions of originality. Originality is yet an-

other characteristic of copyrightability that is not always easy to de-

lineate in actual contexts of creation.

What might seem original

to those in one context may not seem as original in other contexts.

Consequently, within the context of African American audiences

of the 1920s and 1930s, Johnson’s work probably did not seem

startlingly original in the way that it did to British and other musi-

cians and audiences listening to Johnson’s music, often in relative

isolation, in the 1950s and 1960s. This later audience was largely

removed from the original context of other music that was preva-

lent at the time Johnson produced his music, or was only able to

listen to a limited, and likely biased, sample of such music.

For early African American blues listeners, what seemed

original and interesting was very different from what seemed in-

teresting and original to the largely white blues fans that were the

major force behind the blues revival in the 1950s and 1960s.

For

the latter, romantic conceptions about the blues were closely tied

to notions of authenticity that are often unsuited to musical crea-

tion in living musical traditions.

Changing patterns of reception

of blues underscore that what is perceived as original may depend

in significant part on contexts within which listeners hear music.

For this reason, assessments of originality, particularly with respect

to older music, are potentially quite difficult, in part because of se-

lection bias that results in contemporary listeners only being ex-

Gayle Dean Wardlow, Robert Johnson: New Details on the Death of a Bluesman, in CHASIN’

THAT DEVIL MUSIC: SEARCHING FOR THE BLUES 91, 91 (1998).

WALD, supra note 3, at xvi; see also BARRY LEE PEARSON & BILL MCCULLOCH, ROBERT

JOHNSON: LOST AND FOUND 1 (2003) (“Decades after his death this slightly built African

American drifter named Robert Johnson rose from obscurity to become an all-American

musical icon, the best-known although least understood exemplar of the Mississippi Delta

blues tradition.”).

Bach to Hip Hop, supra note 1, at 565-69.

Ford, supra note 58, at 86 (discussing the author’s introduction to blues as a member of

the British substantial minority who had an interest in blues as a declining form of “negro

music” and noting that rural blues were at that time “mistakenly . . . valued for their pre-

commercial authenticity, an attitude which quickly degenerated into an atavistic idealisa-

tion of ‘primitive spontaneity’”).

WALD, supra note 3, at xvi-xvii (noting the different reactions and responses to white and

black audiences for blues).

See Bach to Hip Hop, supra note 1, at 586-88 (discussing how notions of authenticity have

contributed to the creation of the classical music canon since the nineteenth century).

Olufunmilayo B. Arewa, The Freedom to Copy: Copyright, Creation and Context 41 U.C. DAVIS

L. REV. 477, 489, 513, 515 (2007) [hereinafter Freedom to Copy].

588 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

posed to a portion of the broader music scene during the time

such older music was produced.

Although Elijah Wald also de-

scribes Robert Johnson as a “unique genius,”

he notes that later

users who listened to Johnson did not discover him “by way of the

records that preceded and surrounded him . . . .” Wald continues

[Rather, they came] to him by traveling backward from the

Rolling Stones via Chuck Berry and Muddy Waters—the path

taken by virtually all modern listeners. Given this, their reac-

tions made perfect sense. Not that I believe Johnson was in any

way an ordinary talent, but what makes him great is by no

means as obvious and clear-cut as it has often appeared to the

generations of white rock and jazz fans who have heard him in

a vacuum, cut off from the larger blues world of his time.

Determinations of originality are increasingly of concern to-

day given the longer duration of copyright protection, which

makes assessments of originality more difficult, particularly with

respect to music of earlier generations.

Further, determining

what is original is increasingly difficult in a world in which tech-

nology facilitates widespread preservation and ease of access to

music of earlier eras.

Segmentation of the recording industry by race has further

complicated assessments about originality in that music that may

seem original in one context may actually be quite commonplace

in another. Furthermore, industry practices may also shape de-

terminations of what is considered original. In the early blues

arena, concepts of originality derived from copyright law also in-

fluenced the types of blues music that were recorded because re-

cord company scouts required that any recorded songs be original

so as to avoid copyright mechanical licensing fees.

D. Blues and British Rock: Cultural Icons, the Diffusion of Blues, and

Reinvention of Blues Tradition

The diffusion of blues music outside of its contexts of origin

raises important issues about how copyright operates in particular

arenas separated in time or space or both. In the case of blues,

WALD, supra note 3, at 30-42 (discussing the ways in which blues scouts selected musi-

cians to record and helped determine what type of music such musicians performed).

Id. at 128.

Id. at 127-28.

Bach to Hip Hop, supra note 1, at 632-33 (noting potential difficulties that may result from

an expansion on copyright duration).

See Dougan, supra note 42, at 43 (“Originality was an aesthetic designation partly defined

by copyright law and, to all those involved in the race record business, meant that a song

could not show the influence of anything previously recorded or published.”) (citation

omitted).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 589

diffusion took place in a broader milieu characterized by signifi-

cant inequalities and oppression, which has profound implications

for copyright law that are often not sufficiently considered in

about the boundaries between diffusion and exploitation. The

diffusion of blues thus highlights the importance of copying as a

critical and positive cultural force. At the same time the diffusion

of blues forces consideration of when uses of existing material

with limited or no compensation may be inappropriate given the

contexts of such usage.

Blues diffused from the southern U.S. northward with the

migration of significant numbers of African Americans north in

the early twentieth century.

The diffusion of blues, involved

widespread copying of both blues forms and blues musicians. The

diffusion of blues was accompanied by the invention of new narra-

tives about the blues. Such narratives included a recalibration of

the legacy of early blues artists by early jazz critics, collectors, and

others, including a reevaluation of the contributions of Robert

Johnson. Foremost among those who have contributed to the dei-

fication of Robert Johnson are rock and roll musicians who came

of age in Britain and who were significantly influenced by blues

music in the 1950s and 1960s.

The names of those so influenced

reads like a “who’s who” of the early rock and roll era and include

the Beatles, the Rolling Stones, Eric Clapton, The Who, Cream,

Jeff Beck, Led Zeppelin, Fleetwood Mac, the Yardbirds, the Kinks,

and the Animals.

Ironically, even American rock and roll artists

such as Bruce Springsteen also connected to American blues mu-

sic through British bands of the 1960s and 1970s.

These later blues aficionados and the reverence expressed for

the blues by many of them had a tremendous impact on the recep-

tion of Robert Johnson during the rock era because “the language

See CLYDE WOODS, DEVELOPMENT ARRESTED: THE BLUES AND PLANTATION POWER IN THE

MISSISSIPPI DELTA 103-04, 115 (1998) (noting that in 1890 one in ten African Americans

in the U.S. lived in Mississippi, that 60 percent of the Mississippi population, or 743,000

people, was African American and that more than 100,000 African Americans left Missis-

sippi between 1915 and 1920 for factory and domestic work in Memphis, St. Louis, De-

troit, and Chicago, with Chicago rapidly emerging as a Delta blues center).

PEARSON & MCCULLOCH, supra note 77, at 108-09 (discussing why Johnson was singled

out for special veneration); R

OBERT FREUND SCHWARTZ, HOW BRITAIN GOT THE BLUES:

THE TRANSMISSION AND RECEPTION OF AMERICAN BLUES STYLE IN THE UNITED KINGDOM ix

(2007).

STEPHEN DAVIS, HAMMER OF THE GODS: THE LED ZEPPELIN SAGA 5 (1997) (“In fact all

the young English musicians to flood America in the wake of the Beatles—the Rolling

Stones, Animals, Yardbirds, and Kinks in the first wave; Cream, Fleetwood Mac, Jeff Beck,

and Led Zeppelin in the second—considered themselves blues scholars.”); P

ALMER, supra

note 15, at 235–36

(noting the influence of blues artists on musicians in Britain).

SCHWARTZ, supra note 89, at ix.

590 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

of Robert Johnson entered into the common vocabulary of rock . .

. [p]rimarily through the Rolling Stones and Eric Clapton and

their versions of Johnson’s ‘Love in Vain’ and ‘Crossroads’ in par-

ticular.”

Robert Johnson is thus different from many other early

blues musicians in his transition from a little known blues musi-

cian who died young to his status as a cultural icon of later eras.

Johnson’s status is also reflected in the accolades accorded him by

later rock musicians. For example, Eric Clapton has stated,

“Robert Johnson to me is the most important blues musician who

ever lived . . . . I have never found anything more deeply soulful

than Robert Johnson. His music remains the most powerful cry

that I think you can find in the human voice.”

The current status of Robert Johnson today illustrates the fact

that cultural icons and cultural branding are increasingly impor-

tant aspects of the broader entertainment industry.

Cultural

icons represent exemplary “symbols that people accept as a short-

hand to represent important ideas.”

Robert Johnson has come

to represent the idea of the early blues musical tradition. The in-

creasing importance of cultural icons such as Robert Johnson has

also accentuated the influence of models of copyright exploitation

based on valuable asset conceptions of culture.

Such valuable as-

set models that focus on the exploitation of cultural material as as-

sets have contributed to the rise of industries based on cultural

icons.

Further, the distribution of copyright rewards reflects the

business implications of cultural icons reflected in the “enormous

incomes of top producers of intellectual property.”

This distribu-

tion of reward has implications for assumptions about copyright

incentives and rewards that merit further examination. The

Robert Johnson story also demonstrates some ways in which copy-

right may in some instances operate as a lottery with respect to in-

vestment decisions in expressive works.

The emergence of Robert Johnson as a blues cultural icon

GURALNICK, supra note 46, at 5.

WALD, supra note 3, at 247.

DOUGLAS B. HOLT, HOW BRANDS BECOME ICONS: THE PRINCIPLES OF CULTURAL

BRANDING 1-2 (2004) (noting that cultural icons “dominate our world” and that the use of

cultural icons has changed in modern times in that the circulation of cultural icons has

become a central economic activity, including through cultural icons such as James Dean

“take on such intensive and pervasive meaning . . . .”).

Holt, supra note 94, at 1.

Olufunmilayo B. Arewa, All Work and No Play . . .: Intellectual Property as Serious Business 2-4

(2009) (manuscript on file with author) [hereinafter All Work and No Play].

David Wall, Reconstructing the Soul of Elvis: The Social Development and Legal Maintenance of

Elvis Presley as Intellectual Property, 24 I

NT’L J. SOC. L. 117, 119 (1996) (noting the develop-

ment of the Elvis industry within hours of his death).

WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF

INTELLECTUAL PROPERTY LAW 54 (2003).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 591

marks an important transition from conception of blues as an in-

novative living tradition to that of blues as a valuable asset and im-

portant source of proceeds for eminent blues artists. The implica-

tions of valuable asset models are all the more pertinent given that

the reality of borrowing as a norm and the ways in which sharing

and collaboration are inherent aspects of many living cultural tra-

ditions.

Rather, in parallel with the increasing importance of

cultural icons, copyright has increasingly come to accept models

based on cultural production as a valuable asset to be used only by

true creators and authorized users.

100

This view of copyright has

tremendous implications for copying by later creators who use ex-

isting works in their creations that is even more magnified in con-

texts of living artistic traditions.

In large part due to his status as a cultural icon and his influ-

ence on British rock and roll artists, Robert Johnson has come to

symbolize early and authentic blues. Robert Johnson is thus dis-

tinguished in many respects in the blues arena by the ways in

which later blues fans identify with his persona and music. The

mystery and enigma surrounding both his life and death have un-

doubtedly made his appeal all the more intense for his fans. Al-

though Robert Johnson represents an earlier artist who became

eminent in a later era, his status as a cultural icon reflects general

trends in the entertainment industry. Cultural icons have in par-

ticular become an inseparable part of the music industry because,

in part, “commercial imperatives of the music industry necessarily

lead to the promotion of a star system . . . .”

101

Cultural icons have

characteristics that parallel features used to describe artistic pro-

duction within Romantic author conceptions.

Johnson’s status as a cultural icon has been facilitated by the

lack of information about him. Because Johnson died at age

twenty-seven, he also remained forever young, fresh, and new in

the eyes of his listeners, unlike many of his peers, who had aged

and changed musically in ways that made them seem perhaps less

“authentic.” The allure and mystery of Johnson was increased by

the absence of knowledge about important details of his life and

All Work and No Play, supra note 96, at 6.

100

Id.; Michael J. Madison, IP and Americana, or Why Intellectual Property Gets the Blues, 18

ORDHAM INTELL. PROP. MEDIA & ENT. L. J. 677, 688-703 (2008) (noting ways in which

101

Reebee Garofalo, How Autonomous is Relative: Popular Music, the Social Formation and Cul-

tural Struggle, 6 P

OPULAR MUSIC 77, 81 (1987) [hereinafter Autonomous is Relative].

592 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

death.

102

The expansion of audiences for Robert Johnson and other

early blues musicians was part of the broader diffusion of blues in

the U.S. and internationally. This diffusion highlights how ex-

periences of blues musicians have been significantly shaped by hi-

erarchies of race and culture. Hierarchies shaped blues in both its

early years as well as in the later diffusion of blues in rock and roll

contexts. The diffusion of blues during the early rock era, for ex-

ample, took place in the context of an American recording indus-

try that had long been shaped along racial lines. Racial categories

had significant implications for performance opportunities as well

as copyright treatment of a wide range of musicians, including

blues artists.

II.

RACE MUSIC: BLUES AND THE RECORDING INDUSTRY

A. Music, Genre, and American Racial Categories

Music and musical genre have often been conceptualized in

racial terms.

103

As a result, certain types of music may be catego-

rized as connected to particular racial or ethnic groups. Contem-

porary genre categories reflect in part the historical legacy of ra-

cial categories that have been an integral part of the marketing of

records since the earliest days of the recording industry.

104

Al-

though genres are frequently taken for granted today, we often do

not appreciate the ways in which the recording industry has

shaped not only genres but also the types of music that different

musicians could record.

105

Consequently, the fact that black hill-

102

GURALNICK, supra note 46, at 2, 6, 55-56.

103

WALD, supra note 3, at 28 (noting that views of music history are steeped in race); Wil-

liam G. Roy, “Race Records” and “Hillbilly Music”: Institutional Origins of Racial Categories in

the American Commercial Recording Industry, 32 P

OETICS 265, 277 (2004) (noting that re-

cording industry marketing categories eventually became musical genres, which served as

aesthetic guides to performance).

104

Roy, supra note 103, at 266 (noting that in the 1920s recording firms adopted blatantly

racial categorical schemes for their catalogs and marketing that consisted of the category

of “race records” to describe African American music and “hillbilly” or “old time” music to

describe the music of rural whites).

105

See Keith Negus, Cultural Production and the Corporation: Musical Genres and the Strategic

Management of Creativity in the US Recording Industry, 20 M

EDIA, CULT & SOC’Y 359, 360

(1998) (considering the ways in which recording companies divide operations according

to socio-cultural identity labels and the ways in which this industry organization can be

used as a “direct intervention into and contribution towards the way in which social life is

rationalized and fragmented and through which different experiences are separated and

treated unequally.”); Damon J. Phillips & David A. Owens, Incumbents, Innovation and Com-

petence: The Emergence of Recorded Jazz, 1920 to 1929, 32 P

OETICS 281, 292-93 (2004) (discuss-

ing the ways in which recording industry behaviors, including those with respect to the

race, shaped musical innovation in jazz in the 1920s). See generally C

HRISTOPHER SMALL,

MUSIC OF THE COMMON TONGUE: SURVIVAL AND CELEBRATION IN AFRICAN AMERICAN

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 593

billy singers existed in significant number and that musicians of-

ten classified within the blues genre could create and play a broad

range of music from hoedown music to hillbilly music has been

written out of or minimized in much music history.

106

Further, the

role of white musicians, particularly in early blues traditions, is of-

ten ignored.

107

The influence of blues on the country music tradi-

tion is also typically diminished,

108

despite the fact that a significant

African American hoedown tradition profoundly influenced coun-

try music.

109

Also minimized today is the extent to which musicians

and music, both tunes and styles, crossed racial categories. For

example, “several interracial string bands recorded in the 1920s”

and “across the South, if one bothers to ask, one finds reports of

black and white musicians working together.”

110

Also often forgotten is how genres and categories of music

were in large part invented as a means of filing and marketing re-

cords.

111

Prior to the advent and dissemination of records and re-

cording technology, entertainment was largely live, much more di-

verse, and less amenable to classifications and hierarchies of

musical production, although such hierarchies were increasingly

evident even in live performance traditions of the nineteenth cen-

tury.

112

Further, prior to the dissemination of records, musicians

had to be versatile performers who could play a broad variety of

music.

113

Genre distinctions were thus much less part of the musi-

cal lives of most people prior to the advent of recorded music.

114

Prior to the recording age, African American musicians, for ex-

ample, typically played a broad range of music. In Colonial Amer-

MUSIC 395 (1987) (noting the profound influence of records and the recording industry

on Western musical performance in the twentieth century).

106

WALD, supra note 3, at 44.

107

See id. at 18 (noting that little attention has been devoted to early white blues pioneers

such as Morton Harvey, Al Brenard, and Marion Harris).

108

See Rebecca Thomas, There’s a Whole Lot O’Color in the “White Man’s” Blues: Country Mu-

sic’s Selective Memory and the Challenge of Identity, 38 M

IDWEST Q. 73, 81 (1996) (noting that

DeFord Bailey, an African American country music artist, performed in the Grand Ole

Opry on radio shows but was fired as new technology brought the Opry into people’s

homes).

109

WALD, supra note 3, at 47 (noting that “[m]ost experts agree that between a third and a

half of the standard Southern fiddle repertoire is drawn from the black tradition”); Tho-

mas, supra note 108.

110

WALD, supra note 3, at 27, 48 (noting that as “for white performers like Bernard and

Harris, there has not been even the most cursory study of their work” and that little evi-

dence supports the assertion of some scholars that interracial musical groupings were a

rarity).

111

Id. at 44.

112

LAWRENCE W. LEVINE, HIGH BROW/LOW BROW: THE EMERGENCE OF CULTURAL

HIERARCHY IN AMERICA 3-9, 56-104 (1988) (describing sacralization in the establishment

of hierarchies of forms of cultural production in nineteenth century U.S. expressive cul-

ture and the diversity of types of works performed in single performance settings prior to

such sacralization).

113

WALD, supra note 3, at 44.

114

Id. at 56.

594 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

ica, “black musicians provided much of the dance music for the

colonists of all classes” in the North and South and played for

country dances, balls, and dancing schools.

115

The contributions

of such musicians were evident in a broad range of musical tradi-

tions. For example, “the most sophisticated American guitarist of

the nineteenth century was a black man from Virginia, Justin Hol-

land, who introduced the European techniques of [Fernando] Sor

and [Matteo] Carcassi to the United States.”

116

This variety in musical contexts led to the development of Af-

rican American musicians who were comfortable playing a diverse

range of music of many genres and styles.

117

Accomplished black

banjo and fiddle players were, for example, not at all atypical in

the era before the recording age. Recording industry business

and marketing practices, however, created incentives that tended

to diminish this diversity of musical styles and performers: “[the

choices of recording industry scouts] left black string bands in a

double bind: They were banned from the hillbilly catalogs be-

cause they were black, and from the Race catalogs because they

played hillbilly music.”

118

B. Recording Industry Marketing Practices and the Construction of

“Black” Music

With the recording industry came the establishment of cate-

gories such as “race music,” “plantation music,” or “coon songs,”

119

which meant that the vast majority of African American musicians

were marketed playing music that was deemed to be appropriate

for the limited African American consumer market rather than

the broader public.

120

The establishment of the recording industry

and recording industry marketing practices helped define the

types of music that were thought to constitute “black music.” As

Elijah Wald notes, “[t]he record companies not only prevented

115

SOUTHERN, supra note 21, at 43.

116

WALD, supra note 3, at 46.

117

Id. at 44.

118

Id. at 52; see also SOUTHERN, supra note 21, at 43 (noting that one of the best known fid-

dle players in New England was a slave named Samson, owned by Colonel Archelaus

Moore).

119

Thomas, supra note 108, at 74.

120

Perry A. Hall, African-American Music: Dynamics of Appropriation and Innovation, in

ORROWED POWER: ESSAYS ON CULTURAL APPROPRIATION 31, 38 (Bruce Ziff & Pratima V.

Rao eds., 1997) (“Under the precepts of the recording industry’s segmented marketing

systems, however, recordings of [cornetist Louis Armstrong’s and pianist Ferdinand “Jelly

Roll” Morton’s] music were distributed on ‘race record’ labels geared specifically to

Blacks and remained invisible to most whites. By that time music recorded by white dance

bands, led by Paul Whiteman’s, was being introduced to mainstream whites as ‘jazz’

through record labels and performance venues specifically marketed to them.” (footnote

omitted)).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 595

black bands from playing what was perceived as ‘white’ music, but

limited both white and black musicians in all sorts of important

ways.”

121

The term “race music” came to be used by the recording in-

dustry to describe music performed by African American musi-

cians and marketed to an African American audience.

122

The U.S.

recording industry began targeting this market in the 1920s.

123

This market was targeted, at least in part, because of innovation in

the recording industry, particularly from the emergence of

smaller, independent companies.

124

The commercial success of initial “race” records led to the re-

lease of numerous other “race” recordings by both small and large

recording companies.

125

The selection of material to be recorded

and the marketing of such recordings had, in many cases, a dis-

cernible impact on the popularization of recorded music.

126

1949, the “race music” category was changed by the recording in-

dustry to rhythm and blues or R&B.

127

The term “rhythm and

121

WALD, supra note 3, at 52.

122

See OLIVER, supra note 14, at 1-17 (noting that race records were marketed primarily for

a black audience); R

AMSEY, supra note 25, at 113 (noting that a recording by blues singer

Mamie Smith in 1920 helped to establish the race records institution); David Brackett,

What a Difference a Name Makes: Two Instances of African-American Popular Music, in T

CULTURAL STUDY OF MUSIC: A CRITICAL INTRODUCTION 238, 241 (Martin Clayton, Trevor

Herbert & Richard Middleton eds., 2003) (noting that in the 1920s the recording industry

organized the popular music fields around the divisions of “popular,” “race,” and “hill-

billy”); Stephen Calt, The Anatomy of a “Race” Music Label: Mayo Williams and Paramount Re-

cords, in R

HYTHM AND BUSINESS: THE POLITICAL ECONOMY OF BLACK MUSIC 86, 87 (Nor-

man Kelley ed., 2002) (explaining that race music “became a fixture” of the 1920s

“because recording policies . . . were increasingly dictated by a new breed of salesmen who

were willing to set aside their own musical tastes in the interests of commerce that ‘race’

music became a fixture of the decade”).

123

See Timothy J. Dowd, Production Perspectives in the Sociology of Music, 32 POETICS 235, 242-

43 (2004) (discussing the ways in which legal struggles in the recording performance

rights and radio industries contributed to marketing of “race” music by the recording in-

dustry).

124

RICK KENNEDY & RANDY MCNUTT, LITTLE LABELS—BIG SOUND: SMALL RECORD

COMPANIES AND THE RISE OF AMERICAN MUSIC xiv (1999) (noting that in the early 1920s,

competition increased in the recording industry that was facilitation by the expiration of

key recording technology patents and that some companies created business models pur-

sued rural and black urban audiences that had been neglected by major record compa-

nies) Peter J. Alexander, New Technology and Market Structure: Evidence from the Music Re-

cording Industry, 18 J.

CULTURAL ECON. 113, 118 (1994) (noting that Swan Records, a

small, independent company, signed the first popular black female singer to be recorded

in 1920); David Davis & Ivo De Loo, Black Swan Records – 1921-1924: From Swanky Swan to a

Dead Duck, 8 A

CCT. HIST. 35, 37 (2003) (discussing the rise and fall of Black Swan Records,

a small independent record label that was at one time the most successful African Ameri-

can owned business of the 1920s).

125

Alexander, supra note 124, at 118.

126

See, e.g., Tim Brooks, “Might Take One Disk of this Trash as a Novelty”: Early Recordings by the

Fisk Jubilee Singers and the Popularization of “Negro Folk Music,” 18 A

M. MUSIC 278 (2000)

(discussing the impact of recordings of the Fisk Jubilee singers on the popularization of

“Negro Folk Music”).

127

Brackett, supra note 122, at 242; see also RIPANI, supra note 17, at 5 (noting that the term

596 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

blues” then became a marketing term that was applied to a broad

range of music whose most significant commonality was the race

of its performers and targeted market.

128

Rhythm and blues thus

encompassed blues shouting, jump blues, blues ballads, country

blues, vocal groups, and gospel music.

129

“Race” records and re-

cording industry marketing and business practices are important

background factors in considering copyright treatment of blues.

III.

A. Copying, Creativity, and Creation in Blues

Blues music has traditionally reflected an aesthetic based on

borrowing and other types of copying, which has significantly con-

tributed to the dynamism and widespread reach of blues as a mu-

sical form.

130

The importance of borrowing is by no means unique

to blues as a musical form.

131

However, blues compositional prac-

tice, particularly in the days of early recorded blues, also reflected

significant nonvisual elements in that composition and perform-

ance were in many instances not rooted in a visual sheet music

tradition. This compositional practice was also closely related to a

living performance tradition in which hearing music was likely far

more important than seeing it,

132

and musical transmission be-

tween artists involved significant use of shared musical phrases and

lyrics.

133

Compositional practice and borrowing in the blues tradition

is evident in many ways, including through use of common lyrics,

music, and musical forms. Borrowing is thus an inherent aspect of

the creation and performance of blues music.

134

Early pre-war

“rhythm & blues” was first used by Billboard magazine in its June 25, 1949 issue when the

company switched its terms of reference from “Best Selling Race Records” to “Best Selling

Retail Rhythm & Blues Records”).

128

RIPANI, supra note 17, at 6 (noting that “rhythm & blues is a conglomerate of many dif-

ferent musical styles”).

129

Thomas, supra note 108, at 74; see also RIPANI, supra note 17, at 6 (noting that accep-

tance of the characterization of rhythm and blues as a trade category makes explanation

of the songs included within the category easier).

130

Bruno Nettl, World Music in the Twentieth Century: A Survey of Research on Western Influence,

58 A

CTA MUSICOLOGICA 360, 360-61 (1986) (noting that cultural mixture is a major pre-

vailing force in musical innovation).

131

Freedom to Copy, supra note 82, at 484-85.

132

WALD, supra note 3, at 66, 118 (noting that some blues musicians used lyric sheets, with

illiterate ones having lyrics read to them, and that, in addition to creating his own mate-

rial, Robert Johnson learned songs from recordings and other players).

133

See infra notes 134-150 and accompanying text.

134

See J. Peter Burkholder, Borrowing, in 4 THE NEW GROVE DICTIONARY OF MUSIC AND

MUSICIANS 1, 2 (Stanley Sadie ed., 2d ed. 2001) (noting that “[b]lues and jazz involved

improvisation and composition based on existing harmonies, melodies and bass patterns,

and similar practices continued into popular music derived from black American tradi-

tions, including rhythm and blues and rock and roll.”).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 597

blues performers frequently swapped tunes and lyrics. Willie

Dixon’s “Hoochie Coochie Man” has the same melody as John

Brim’s “Tough Times;” Chuck Berry took the talking verse of Bo

Diddley’s “I’m a Man” for his own piece “No Money Down.”

135

The

two Robert Johnson recording sessions, which have been discussed

and analyzed in detail,

136

reflect borrowing from a number of

sources, including Leroy Carr,

137

Kokomo Arnold,

138

Skip James,

139

and Son House.

140

When folklorist Alan Lomax first recorded

Muddy Waters, Muddy Waters sang his version of a song that was

well-known in the Mississippi Delta.

141

Muddy Waters called his

version “Country Blues.”

142

This same song had been recorded by

Son House as “My Black Mama” and Robert Johnson as “Walkin’

Blues,”

143

which reflects a creative tradition in blues composition of

rearranging existing music and adding new verses.

144

Rock and roll artists in the post-war era also borrowed signifi-

cantly from the blues tradition. Chuck Berry had deep roots in

the blues. Berry “introduced a level of lyrical analysis and com-

ment to rock’n’roll that was firmly rooted in the blues tradition.”

145

Similarly, varied British rock and roll artists, including the Beatles,

Rolling Stones, Led Zeppelin, Cream, Eric Clapton, The Who,

Fleetwood Mac, and others, borrowed and otherwise copied ex-

tensively from blues traditions.

146

Given the socio-cultural contexts

within which blues arose in the U.S. and the role of racial catego-

ries in the recording industry and American life generally, exten-

sive borrowings by British musicians are not surprising. Although

135

Paul H. Fryer, “Brown-Eyed Handsome Man”: Chuck Berry and the Blues Tradition, 42

HYLON 60, 63 (1981).

136

See, e.g., WALD, supra note 3, at 126-89; CHARTERS, supra note 68, at 25-87.

137

WALD, supra note 3, at 131.

138

Id. at 133.

139

Id. at 142.

140

Id. at 150.

141

PALMER, supra note 15, at 4 (discussing the first recordings of Muddy Waters).

142

Id.

143

Id.

144

WALD, supra note 3, at xx (noting that introducing songs as one’s own composition

meant that a performer had rearranged the compositions and added some new verses);

John Cowley, Really the “Walking Blues”: Son House, Muddy Waters, Robert Johnson and the De-

velopment of a Traditional Blues, 1 P

OPULAR MUSIC 57, 58 (1981) (discussing the questions

Alan Lomax asked Muddy Waters in August 1941 during interviews in which Muddy Wa-

ters noted that his song “Country Blues” used the same tune as Robert Johnson’s “Walkin’

Blues”).

145

Fryer, supra note 135, at 62, 71.

146

See Wicke & Deveson, supra note 21, at 222 (noting that rhythm and blues playing styles

were based in part on rhythm and blues playing styles); see also P

ALMER, supra note 141, at

235–36;

Charles Gower Price, Sources of American Styles in the Music of the Beatles, 15 AM.

MUSIC 208, 210 (1997); Bruce Tucker, “Tell Tchaikovsky the News”: Postmodernism, Popular

Culture, and the Emergence of Rock ‘N’ Roll, 9 B

LACK MUSIC RES. J. 271, 282 (1989).

598 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

not without racial issues,

147

British musicians were more removed

from American contexts of racial oppression and perhaps more

open to overt use of a musical form that ranked at the bottom of

American cultural and racial hierarchies.

148

How later artists borrowed from existing blues works reflects

important issues connected to copyright and borrowing. In the

blues, as is the case with other musical forms based on certain Af-

rican American aesthetic practices, repetition, revision, and syn-

thesis of varied musical influences is a core aspect of creation and

innovation.

149

The varied ways in which new works may be created

is often in significant tension with copyright assumptions about

the mechanisms and means of transmission used to create new

works. Varied aesthetics of creation evident in music and other

fields demonstrate that musical innovation and creativity may oc-

cur in a broad range of ways.

150

Prevailing views of borrowing in copyright discourse are

closely connected to at times vague and mystical representations of

creativity that assume that copying of existing texts reflects a lack

of creativity or originality.

151

The structure of copyright as a prop-

erty rule and the notion of derivative works are closely tied to as-

sumptions about the ways in which new works should be created.

152

These assumptions about creation are often quite contrary to how

creation actually occurs, which presents tremendous problems for

a broad range of cultural texts, including those that reflect an Af-

rican American aesthetic of repetition and revision.

153

Treatment

147

COLIN MACINNES, ABSOLUTE BEGINNERS 16, 54 (1985).

148

BAKER, supra note 24, at 11 (noting that “Afro-Americans [are] at the bottom even of

the vernacular ladder in America . . . .”); S

MALL, supra note 105, at 350 (discussing the “at-

titude of classical musicians towards the Afro-American tradition” as ranging from “at best

incomprehension and condescension” to “at worst [] violent antagonism).

149

See BAKER, supra note 24, at 172 (describing blues as involving “performers [who] offer

interpretations of the experience of experience”); H

ENRY LOUIS GATES, JR., THE

SIGNIFYING MONKEY: A THEORY OF AFRICAN-AMERICAN LITERARY CRITICISM xxiv (1988)

(“Repetition and revision are fundamental to black artistic forms, from painting and

sculpture to music and language use.”); David Evans, Musical Innovation in the Blues of

Blind Lemon Jefferson, 20 B

LACK MUSIC RES. J. 83, 98 (2000) (noting that Blind Lemon Jef-

ferson’s musical innovation was based on synthesis of existing works and styles); James A.

Snead, On Repetition in Black Culture, 15 B

LACK AM. LIT. F. 146, 149–50 (1981) (noting that

“[b]lack culture highlights the observance of . . . repetition” and “[r]epetition in black

culture finds its most characteristic shape in performance: rhythm in music and dance

and language”).

150

Bach to Hip Hop, supra note 1, at 627-28.

151

Id. at 564-68 (discussing the problematic application of generally accepted conceptions

about creativity in copyright to hip hop music); Negus, supra note 105, at 362 (discussing

writings about creativity and noting that “creativity is often treated in a vague and mystical

manner, with many writers assuming that we all know and recognize ‘creativity’ when we

meet it.”).

152

Bach to Hip Hop, supra note 1, at 570-72.

153

Id. at 567.

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 599

of blues music and blues musicians within copyright frameworks

also illustrates some ways in which copyright actually operates in

specific contexts that reflect existing inequalities and the influ-

ence of factors such as race and fame. Such factors continue to

shape applications of copyright in ways that are not always suffi-

ciently analyzed in copyright discourse.

B. Copyright, Blues, and Hierarchies

In addition to assumptions about the nature of creation and

the use of existing works in new creation and compositional prac-

tices, hierarchies of culture and power have played an important

role in shaping both copyright and musical industry structures

through which copyright is often applied. In the blues context,

hierarchies relating to race were inextricably intertwined with

means limited to race; hierarchies relating to gender were evident,

for example, in the treatment of blues queens, whose role in the

early commercial successes of blues was diminished as a conse-

quence of their gender.

154

Similarly, status hierarchies contributed

to the treatment of musicians categorized within the “hillbilly”

music genre, which was a corresponding category to “race” records

for rural white performers.

155

Treatment of performers by the mu-

sic industry varied based on performers’ assigned trade categories.

Music publishers allied with the radio and film business were

the dominant power in the music industry prior to the rock and

roll era.

156

Prior to the Second World War, songs were a primary

source of revenues in a market dominated by writers and publish-

ers who exercised power through collective rights organizations

such as the American Society of Authors, Composers and Publish-

ers (ASCAP).

157

ASCAP, however, reflected societal hierarchies in

excluding black and country and western writers.

158

Broadcast Mu-

sic Incorporated (BMI) was formed in 1939 in part because of

154

WALD, supra note 3, at 26-27 (“Relatively few CDs attest to the dominance of the blues

queens, while there are hundreds of overlapping reissues of their male contemporaries.”);

Danaher, supra note 15 at 1455; see also K.J. Greene, Blues Women of the 1920s (2008) (un-

published manuscript, on file with author) [hereinafter Blues Women].

155

Roy, supra note 103, at 266 (noting use of the terms “hillbilly” or “old time” music to

describe the music of rural whites).

156

Autonomous is Relative, supra note 101, at 78; Frank Geels, Reconfiguring the American Music

Industry and the Breakthrough of Rock ‘n’ Roll (1930-1970): A Multi-Level Analysis of the Produc-

tion, Distribution and Consumption of Music 6, Paper for the Fourth European Meeting on

Applied Evolutionary Economics, May 21, 2005 (connecting the power of music publish-

ers to the Copyright Act of 1909).

157

Id.

158

Id.

600 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

problems with ASCAP.

159

BMI extended the “protection of copy-

right to the ‘hillbillies’ and the ‘bluesmen.’”

160

The power of music publishers declined as the recording in-

dustry became more powerful.

161

By the early 1950s, records had

replaced sheet music as the primary source of music industry

revenue.

162

The shift to recordings as a dominant source of reve-

nue reinforced existing hierarchies, particularly as they related to

race. Under the recording industry’s race-based genre categoriza-

tion system (the names of which have shifted over time from

“race” to “rhythm and blues” to “soul” to “black” music), a per-

former whose music is classified as “black” must first have success

in the “black” market before being able to cross over to the pop

charts.

163

On the other hand, white performers such as Bruce

Springsteen, start out on the pop charts.

164

These race-based genre

distinctions continue to pervade the music industry and influence

choices about marketing, booking, and other aspects of the music

industry.

165

These types of categorizations have also influenced the ways

in which blues music has been borrowed because the original per-

formers of blues and other music categorized as “black” were often

not permitted to record that music for “pop” and other market

segments that were categorized as “white.”

166

In addition, conven-

tions existed that resulted in African American artists being ex-

cluded from various arenas at different points in time, including

live radio, because “[i]n the music system, there was a normative

convention, shared by radio stations, not to broadcast black per-

formers.”

167

Similarly, copyright law provisions that permit cover re-

159

Lucia S. Schultz, Performing-Rights Societies in the United States, 35 NOTES 511, 516–22

(1979) (noting that radio broadcasters formed BMI in response to alleged excessive pric-

ing, price-fixing, and other practices by ASCAP).

160

Autonomous is Relative, supra note 101, at 78.

161

Reebee Garofalo, From Music Publishing to MP3: Music and Industry in the Twentieth Cen-

tury, 17 A

M. MUSIC 318, 336 (1999) [hereinafter Music Publishing to MP3] (noting that

publishing houses became displaced as records became a staple of radio programming

instead of performances by live performers).

162

Autonomous is Relative, supra note 101, at 78.

163

Id. at 81.

164

Id.

165

Id.

166

Id.

167

Geels, supra note 156, at 9; see William Barlow, Black Music on Radio During the Jazz Age,

29 A

FR. AM. REV. 325, 326 (1995) (noting that African American dance bands were sel-

dom heard on radio in the 1920s; instead, “it was the commercial successful white dance

bands of the era . . . that were regularly featured on the airways, giving their popularity an

added boost.”); Derek W. Vaillant, Sounds of Whiteness: Local Radio, Racial Formation, and

Public Culture in Chicago, 1921-1935, 54 A

M. Q. 25, 29 (2002) (noting total exclusion of Af-

rican Americans from Chicago radio airwaves in the 1920s and early 1930s with the excep-

tion of one radio program).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 601

cordings have, particularly in the past, been used in a way that re-

inforces existing racial hierarchies. Songs recorded by African

American rhythm and blues artists were typically re-recorded in

“cover versions” “by another artist in a style thought to be more

appropriate for the mainstream market . . . . Most of the perform-

ers whose songs were covered were black.”

168

Consequently, the

sources of such material were often seen as readily appropriable

for uses in “white” markets.

169

The industry structures within

which blues was created and marketed were shaped by existing

socio-cultural hierarchies that, in turn, influenced the application

of copyright to the blues and other musical traditions that in-

volved significant numbers of African American performers.

C. Visual Perceptions of Music and Nonvisual Musical Reproduction

As a result of musical industry business structures, the appli-

cation of copyright to music categorized as “black,” which includes

but is not limited to the blues, has been historically problematic,

contested, and criticized as exploitative.

170

Consideration of the

treatment of blues under copyright frameworks also raises signifi-

cant questions of context. The experience of many blues musi-

cians also highlights fundamental tensions in the application of

How blues musical production and creativity are conceptual-

ized has significant copyright implications, especially since copy-

right discourse about creation often emphasizes independent

creation by those deemed authors.

171

The depictions of Robert

Johnson’s contributions to blues music by later musicians and mu-

sical commentators highlight the curious ways in which blues crea-

tivity may be conceptualized. The elevation of Robert Johnson as

blues exemplar has involved significant diminution of the role of

shared and collaborative aspects of blues creation and perform-

ance in Johnson’s works. Robert Johnson’s status has, in turn,

168

Reebee Garofalo, Crossing Over: From Rhythm & Blues to Rock ‘n’ Roll, in RHYTHM AND

BUSINESS: THE POLITICAL ECONOMY OF BLACK MUSIC 116, 128-29 (Norman Kelley ed.,

2005) [hereinafter Crossing Over]; see Hall, supra note 120, at 44 (noting Little Richard’s

recounting in a Home Box Office (“HBO”) television special that a version of his rock an-

them “Tutti Frutti” had reached number one on the pop charts in a version recorded by

Pat Boone).

169

Olufunmilayo B. Arewa, Copyright on Catfish Row: Musical Borrowing, Porgy and Bess, and

Unfair Use, 37 Rutgers L.J. 277, 351 (2006) [hereinafter Catfish Row].

170

See generally SIVA VAIDHYANATHAN, COPYRIGHTS AND COPYWRONGS: THE RISE OF

INTELLECTUAL PROPERTY AND HOW IT THREATENS CREATIVITY 117-48 (2001) (discussing

K.J. Greene, Copyright, Culture & Black Music: A

Legacy of Unequal Protection, 21 H

ASTINGS COMM. & ENT. L.J. 339, 361-83 (1999) [hereinaf-

ter Copyright Culture & Black Music] (commenting on the use of copyright to appropriate

African American music); Hall, supra note 120, at 37-58.

171

See Freedom to Copy, supra note 82, at 533.

602 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

been accompanied by more favorable outcomes for his estate from

a copyright perspective. For this reason, copyright treatment of

Robert Johnson and other blues musicians over time reveals some-

thing of copyright’s underlying assumptions about creation, as

well as the ways in which creators in living musical traditions may

not be well-served by such assumptions.

musical creations, particularly musical forms based on nonvisual

technologies of musical reproduction.

172

This reflects, in part, the

formation of copyright originally in relation to literary works,

173

and its later extension to other types of cultural production such

as music.

174

The application of existing copyright doctrine to mu-

sic has, not surprisingly, been easier in questions relating to

printed sheet music,

175

which is visual in nature.

Assumptions about composition and performance evident in

cases involving sound recordings highlight the inability of current

dominant copyright perceptions of music to encompass musical

practice in blues and other living musical traditions that reflect

borrowing and improvisatory practices. The application of copy-

right to blues music is thus complicated both by questions regard-

ing the nature of blues composition and by the copyright treat-

ment of recordings and nonvisual aspects of musical creation and

reproduction more generally. This issue is highlighted in the case

of blues because the genre came to commercial prominence with

the advent of the recording industry. Blues and other forms of

musical production provide an uneasy fit for copyright. This

broader context of blues, nonvisual reproduction, and copyright

serves as an important backdrop in considering Robert Johnson

and his copyright rewards.

172

Bach to Hip Hop, supra note 1, at 555-58 (discussing the inexact fit of copyright for mu-

sic).

173

Id. at 555.

174

Id. at 556-58 (noting that Bach v. Longman, (1777) 2 Cowper 623 (K.B.), clearly estab-

lished that the Statute of Anne applied to music and that U.S. copyright law was applied to

music with the Copyright Act of 1831).

175

Id. at 577-78 (discussing the use of the fair use doctrine as applied to musical text as

compared with the difficulty of applying the fair use doctrine to musical notes, which are

nonrepresentational).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 603

IV. CONTEXTS OF THE BLUES: CREATION AND REWARD

A. Robert Johnson and Copyright

1. Copyright and the Business of Blues

Robert Johnson is a seminal figure among pre-war blues mu-

sicians, by virtue of both his transcendent popularity and the ways

his estate has exploited copyrights in his work. Additionally, by

distinguishing Johnson’s musical practice in many respects from

those of his temporal peers, Johnson commentators have laid the

groundwork for exceptionalism in the application of copyright to

Johnson’s works. The world in which Robert Johnson came of age

was one in which his identity as an African American had signifi-

cant implications for his likely ability to hold and exploit copy-

rights. As was the case with most country blues players who cut re-

cords in the pre-war era, Robert Johnson did not hold copyrights

in his compositions. Blues musicians were typically bound by

“race” recording contracts that were in many instances exploitative

because

[m]ost artists were paid according to the custom of the day, re-

ceiving a flat recording fee and waiving the rights to their com-

positions . . . . The chief means by which dishonest recording

officials of the era cheated artists was by filching composer

credits for their songs in order to draw a publishing royalty.

176

Very few blues singers received much compensation for their

work.

177

In the 1920s and 1930s, many African American musicians

assigned their copyrights to recording companies.

178

Moreover,

black artists were generally paid less for these assignments than

white musicians.

179

Unlike many blues musicians, however, Robert Johnson’s es-

tate has taken advantage of and profited from Johnson’s continu-

ing popularity. Johnson’s continuing popularity and exalted artis-

tic reputation are closely related to his status as a cultural icon

among early blues performers. As one commentator explains,

176

Calt, supra note 122, at 103.

177

See K.J. Greene, “Copynorms,” Black Cultural Production, and the Debate over African-

American Reparations, 25 C

ARDOZO ARTS & ENT. L.J. 1179 (2008) [hereinafter Copynorms]

(discussing the generally inequitable contractual terms and lack of compensation of Afri-

can American blues artists).

178

Candace Hines, Black Musical Traditions and Copyright Law: Historical Tensions, 10 MICH.

J. RACE & L. 463, 480 (2005).

179

Id.; Copynorms, supra note 177, at 1204-07 (discussing the fact that Bessie Smith received

little compensation during her life and detailing the failure of a court case seeking reme-

dies for this lack of compensation).

604 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

“[a]n arresting voice, virtuoso guitar playing, indecipherable

words, suggestions of psychic anguish, death at an early age, the

touching anecdotes promulgated as part of the initial liner-note

mythology—it all seemed to support the Faustian tragedy that was

eventually constructed to explain Johnson’s art.”

180

Johnson’s con-

tinuing popularity has also meant that he is one of the few pre-war

blues musicians to have earned significant royalties from his work.

The royalties earned by the Johnson estate from Johnson’s re-

cordings also reflect the ways in which blues music may interact

with copyright frameworks. A number of commentators highlight

the appropriation of blues music by later artists and point out that

the broader context of such uses reflected societal conditions in

which African Americans were exploited in artistic production and

other circumstances.

181

The exploitation of African American art-

ists, which is fairly well documented, occurred in a complex envi-

ronment in which African American businesses also prospered

based on uses of African American cultural production.

182

Further,

in some instances, certain “renowned” blues artists or their repre-

sentatives, including the Robert Johnson estate and bluesman Wil-

lie Dixon, have been able to sue and receive compensation for

uses of their works.

183

The Willie Dixon case, which involved a suit

by blues great Willie Dixon against Led Zeppelin, settled out of

court, while the Robert Johnson case ended with a decision in fa-

vor of Johnson’s representatives.

184

The Johnson and Dixon cases suggest that renowned blues

artists can and did receive compensation for uses of their works.

These cases, however, do not substantially alter or improve cir-

cumstances that have led to a general lack of compensation for

blues artists at the hands of “race” record companies and later mu-

sicians who use blues material. The patterns of rewards in the

blues cases do suggest though that copyright rewards can reflect

180

PEARSON & MCCULLOCH, supra note 77, at 109.

181

See VAIDHYANATHAN, supra note 170, at 117-48; Copynorms, supra note 177, at 1194-98

(2008); Copyright Culture & Black Music, supra note 170, at 356-59 (1999); Hall, supra note

120, at 37-51; Hines, supra note 178, at 492.

182

See Calt, supra note 122, (discussing the activities of Mayo Williams, an African Ameri-

can, who played an important role in the Paramount race record business); Davis & De

Loo, supra note 124, at 37 (noting that Black Swan Records was a small independent race

record label that was at one time the most successful African American owned business of

its time).

183

Dixon v. Atlantic Recording Corp., 1985 U.S. Dist LEXIS 15291 (S.D.N.Y. 1985) (deny-

ing the licensing agent’s motion for summary judgment in a suit by Willie Dixon, the re-

nowned blues artists, against members of the legendary rock group Led Zeppelin that al-

leged that the Led Zeppelin composition “Whole Lotta Love” infringed on Dixon’s

composition “I Need Love”).

184

VAIDHYANATHAN, supra note 170, at 117-18 (noting that the Dixon case ended in a set-

tlement).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 605

factors, including elements more akin to investment in a lottery,

that are not adequately considered in existing incentive models of

185

The existence of cases in which blues artists received com-

pensation should also not obscure the difficulties inherent in mak-

ing copyright infringement claims in blues cases. Current copy-

right assumptions about creation make it difficult to allocate

as the blues that may involve extensive borrowing or copying or

that are based in nonvisual forms of musical reproduction.

186

Fur-

ther, few blues artists had renewed copyrights for blues musical

compositions.

187

As a result, under the Copyright Act of 1909,

which prior to the adoption of the Copyright Act of 1976, pro-

vided for a term of twenty-eight years, plus twenty-eight more with

renewal,

188

blues standards that appeared in sheet music form

would typically no longer be protected today.

189

However, since

much blues music appeared primarily in sound recordings, the

pend, in many cases, upon whether the distribution of the sound

recording is deemed a “publication” under the 1909 Act, which is

not always easy to determine. Under the 1909 Act, “an unpub-

lished work was protected by state common law copyright from the

moment of its creation until it was either published or until it re-

ceived protection under the federal copyright scheme.”

190

2. Copyright and Blues Recordings

Many blues works appeared only on phonorecords, which has

potentially significant copyright implications. As has been the case

with other technologies, the advent of sound recordings led to the

(much later) adoption of copyright statutes intended to extend

tion of copyright protection for sound recordings led to a legal

185

Frederic Scherer has made a similar point with respect to patent. See F.M. Scherer, The

Innovation Lottery, in E

XPANDING THE BOUNDARIES OF INTELLECTUAL PROPERTY:

INNOVATION POLICY FOR THE KNOWLEDGE SOCIETY 3, 14 (Rochelle Cooper Dreyfuss et al.

eds., 2001).

186

Jennifer L. Hall, Blues and the Public Domain—No More Dues to Pay?, 42 J. COPYRIGHT

SOC’Y U.S.A. 215, 215 (1995) (quoting an archivist from the Smithsonian Institution as

stating that “[f]olk and blues are really problematic because you have these verses and

classical instrumental licks that float all over the place and appear again and again”).

187

Id. at 224 (noting that early blues musicians such as Robert Johnson did not register for

copyrights and were paid upfront, not in royalties); Hines, supra note 178, at 480-81.

188

See Copyright Act of 1909, ch. 320, §§ 23-24, 35 Stat. 1075, 1080-81 (1909) (current ver-

sion at 17 U.S.C. § 304 (2006)).

189

Hall, supra note 186, at 216.

190

Id.

606 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

framework that added a level of complexity to existing copyright

frameworks that initially covered only musical compositions, which

became protected under the 1831 Copyright Act.

191

Protection of

performance rights for music was added in 1897.

192

The addition

of a sound recording copyright in the 1970s has resulted in a po-

tentially complex and, at times, ambiguous copyright status for

pre-1978 sound recordings.

The 1971 Sound Recording Act, which was later superseded

by the Copyright Act of 1976, established a separate copyright for

sound recordings that is in addition to any copyrights for any un-

derlying musical compositions. Section 303 of the Copyright Act

provides a statutory framework for pre-1978 phonorecordings.

193

Under § 303, copyrights in works created before 1978 but not

theretofore in the public domain or copyrighted began on January

1, 1978 and had a duration for the term provided in § 302 of the

fore December 31, 2002.

194

Further, the term of works published

on or before December 31, 2002, would expire at the earliest on

December 31, 2047.

195

However, under § 303(b), which was

amended in 1997,

196

“[t]he distribution of phonorecords prior to

January 1, 1978 does not constitute a publication of the musical

work embodied in the phonorecord.”

197

When a work was pub-

lished, it lost state common law protection; as a result, if the owner

did not wish for the work to enter the public domain, the owner

had to obtain federal protection by complying with the 1909 Act’s

requirements.

198

Recent court cases have interpreted the implica-

tions of § 303(b) for blues recordings. These recent blues cases

are instructive in outlining the business terms to which blues mu-

sicians have been subject and the ways in which courts have

treated claims of copyright infringement in blues contexts.

191

See Copyright Act of 1790, ch. 15, §§ 1-7, 1 Stat. 124 (1790) (current version in scattered

sections of 17 U.S.C.) (providing copyright protection to books, maps and charts); Copy-

right Act of 1831, ch. 16, §§ 1-16, 4 Stat. 436, 436-37 (1831) (current version in scattered

sections of 17 U.S.C.) (providing copyright protection to musical compositions, prints,

cuts and engravings to the list of copyright protected materials); L

YMAN RAY PATTERSON,

came protected under the 1831 Copyright Act).

192

See Act of January 6, 1897, 44th Cong., 2d Sess., 29 Stat. 694; PAUL GOLDSTEIN,

that the protections added by Congress in 1897 were difficult to enforce).

193

17 U.S.C. § 303 (2006).

194

Id. § 303(a).

195

Id.

196

Jonathan C. Stewart & Daniel E. Wanat, Entertainment and Copyright Law: Section 303 of

the Copyright Act is Amended and a Pre-78 Phonorecord Distribution of a Musical Work is Not a

Divestitive Publication, 19 L

OY. L.A. ENT. L.J. 23, 23 (1998).

197

17 U.S.C. § 303(b).

198

La Cienega Music Co. v. ZZ Top, 53 F.3d 950, 952-53 (9th Cir. 1995).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 607

La Cienega v. ZZ Top involved a claim by blues legend John

Lee Hooker and Bernard Besman, to whom Hooker’s copyrights

in his musical composition “Boogie Chillen” had been assigned.

199

Hooker and Besman alleged that the song “La Grange” by the

Texas blue-rock band ZZ Top infringed their musical composition

“Boogie Chillen.”

200

Hooker and Besman became aware that the

ZZ Top song “La Grange” was similar to the three versions of

“Boogie Chillen” that had been written by Hooker and Besman in

1948, 1950, and 1970.

201

Besman had registered all versions of

“Boogie Chillen” in the Copyright Office.

202

After realizing the

similarity, Hooker and Besman notified the publisher of “La

Grange,” alleging that the ZZ Top song “La Grange” was similar to

“Boogie Chillen.”

203

The publisher of “La Grange” filed a declara-

tory judgment action in Texas to resolve the dispute, leading Bes-

man to file suit in the Central District of California on behalf of La

Cienega, in which Besman was the sole proprietor.

204

In the La Cienega decision, the Ninth Circuit assessed whether

the sale of an unregistered recording constituted a “publication”

for copyright purposes.

205

Whether a distribution of a recording

constitutes a “publication” is a significant question that can de-

termine whether the copyright for a sound recording is still valid.

The Ninth Circuit found

that such a sale did constitute a “publica-

tion” under the Copyright Act of 1909 and that the

Hooker/Besman publications were published in 1948, 1950, and

1970, respectively.

206

As a result, the court remanded the claims

with respect to the 1970 “Boogie Chillen” version. It decided that

the earlier “Boogie Chillen” compositions entered the public do-

main in 1976 and 1978, by which time the statutory copyrights had

expired without renewal.

207

In reaching its decision, the La Cienega court touches directly

on the issue of what constitutes a “copy” of a musical composition,

which has also been at issue in a number of copyright cases, in-

cluding the seminal 1908 White-Smith v. Apollo case.

208

The White-

199

Id.

200

Id. at 952.

201

Id.

202

Id.

203

Id.

204

Id.

205

Id.

206

Id. at 953 (noting that the court is adopting the majority rule, which is contrary to the

minority rule evident in the Second Circuit case Rosette v. Rainbo Record Mfg. Corp., 354 F.

Supp. 1183 (S.D.N.Y. 1973), aff’d per curiam, 546 F.2d 461 (2d Cir. 1976)).

207

Id.

208

White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1, 17–18 (1908) (holding that

perforated player piano music rolls were not copies within the meaning of the applicable

608 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

Smith decision led to a split between the circuits as to what consti-

tutes a copy of a musical work. Some courts followed the minority

rule established in Rosette v. Rainbo Record Mfg. Corp.,

209

which held

that the sale of a phonograph record does not constitute a “publi-

cation” under the 1909 Act.

210

The Rosette rule, which was noted in

a dissenting opinion in La Cienega,

211

reflects the conflict evident in

White-Smith with respect to how to interpret the legal implications

of nonvisual representations of music, including player piano rolls

and sound recordings, and the extent to which such nonvisual

representations represent a copy of an underlying work or consti-

tute a composition or musical performance. The Rosette court,

recognizing this longstanding conflict, noted that “it is difficult to

rationalize accepted principles of copyright law to make perform-

ance of a composition a publication of the composition itself.”

212

The determination of whether a distribution of a phonore-

cord constitutes a “publication” has significant business implica-

tions. As recordings surpassed sheet music as the primary source

of revenue for the music industry, record companies often did not

213

As David

Nimmer notes, industry practice was to not obtain statutory copy-

right of musical compositions prior to sale of phonorecords of the

compositions, an often “deliberate omission on advice of counsel,

who concluded . . . that sale of a phonorecord would not consti-

tute a surrender of common law rights in the recorded work.”

214

The failure to register copyrights for sound recordings also re-

flected an industry gaming strategy that sought to avoid compul-

sory license provisions of the Copyright Act.

215

In contrast to Ro-

sette, the majority rule after White-Smith reflected the view that a

“publication” did occur upon the sale of a phonorecord.

216

In response to La Cienega, songwriters lobbied Congress to

209

Rosette, 354 F. Supp. at 1183 (adopting the rule that a sound recording does not consti-

tute a “publication” of an underlying musical composition under the 1909 Act).

210

Id. at 1191-92.

211

La Cienega Music Co. v. ZZ TOP, 53 F.3d 950, 953 (9th Cir. 1995).

212

Rosette, 354 F. Supp. at 1191.

213

1 MELVILLE B. NIMMER, Nimmer on Copyright § 4.05[B][4] (2009) (“[I]t is a common

practice to market records of a musical work without publishing the work in sheet music

form.”).

214

Id. (footnote omitted.)

215

Id. (“‘Second, as a strategic matters, musical proprietors were reluctant to secure statu-

tory copyright in their musical compositions, even as a precautionary measure against the

increasing number of decisions holding sale of phonorecords to be a publication. Under-

lying such an imprudent course of conduct was apparently the desire to avoid subjecting

the recorded composition to the compulsory license provisions of Section 1(e) of the

1909 Act. In the last particular, the subject course of conduct amounted to an attempt to

exploit a medium regulated by statute without submitting to that regulation.’”) (Citation

Omitted).

216

Id.

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 609

change the Copyright Act.

217

Congress responded by adopting §

303(b), which provides that the distribution of a phonorecord be-

fore January 1, 1978, does not constitute a publication of the un-

derlying musical work.

218

Although this statutory provision now

protects songwriters from failure to include the copyright notice

on a phonorecord,

219

it does little to address the visual/nonvisual

or composition/performance dichotomies that have long proved

troublesome in the music copyright arena.

As a result of the post-La Cienega amendment to the Copy-

right Act, the case involving Robert Johnson’s works followed the

Rosette minority rule and thus reached a different outcome from

La Cienega. Eleven of the songs recorded by Robert Johnson were

released within a year of being recorded.

220

Twenty-two of the

twenty-nine songs recorded by Robert Johnson were re-released

well after his death.

221

Columbia Records re-released Johnson’s re-

cordings in the early 1960s and released a two-CD boxed set of

Johnson’s recordings in 1990.

222

Two songs recorded by Johnson, “Stop Breakin’ Down” and

“Love in Vain,” were re-recorded by the Rolling Stones.

223

songs.

224

The Rolling Stones albums that included the Johnson

songs have both been ranked by Rolling Stone magazine as among

the “greatest albums of all time.”

225

Rolling Stone adaptations were filed in May 1970 for “Love in

Vain” and in 1972 for “Stop Breakin’ Down.”

226

Unlike Columbia

Records and others who adapted Johnson’s work, however,

ABKCO, the Rolling Stones’ label, did not recognize Johnson’s

common law copyrights.

227

Steve LaVere had reached an agree-

ment in 1974 with Johnson’s then sole surviving heir, Carrie

Thompson, in which he received fifty percent of all royalties in ex-

217

Id. § 4.05[B][7].

218

17 U.S.C. § 303(b) (2006).

219

Id.

220

ABKCO Music, Inc. v. LaVere, 217 F.3d 684, 685 (9th Cir. 2000).

221

Johnson—Early Influence, Rock and Roll Hall of Fame and Museum,

http://www.rockhall.com/hof/inductee.asp?id=134 (last visited Oct. 28, 2009) (noting

that twenty-two of Johnson’s twenty-nine recordings appeared on 78 rpm singles released

on the Vocalion label).

222

ABKCO, 217 F.3d at 687.

223

Id. at 686-87 (noting that an adapted version of “Love in Vain” was included on the

Rolling Stones album Let It Bleed, while “Stop Breaking Down” was included on the album

Exile on Main Street).

224

Id. at 687.

225

W. Russell Taber, Note, Copyright Déjà Vu: A New Definition of “Publication” under the Copy-

right Act of 1909, 58 V

AND. L. REV. 857, 895 (2005).

226

ABKCO, 217 F.3d at 686.

227

Id.

610 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

change for her assignment to him of all of her copyright interests

in Johnson’s works.

228

LaVere filed copyright registrations for the

1990 Columbia release and demanded that ABKCO cease and de-

sist from unlicensed uses of the Johnson song.

229

After unsuccess-

ful negotiations, ABKCO filed an action for declaratory relief.

230

In analyzing the application of § 303(b) of the Copyright Act

to ABKCO, the Ninth Circuit noted that under White-Smith, the pi-

ano rolls at issue constituted a performance rather than a publica-

tion of a musical composition,

231

which reinforces the vis-

ual/nonvisual dichotomy evident in White-Smith and other music

by the ABKCO court again highlights the difficulty many legal

commentators have in grappling with a musical universe where

nonvisual technologies such as sound recordings may have taken

on attributes with respect to musical creation formerly ascribed to

visual, written musical compositions.

232

This is particularly notable

in certain musical genres, including the blues. At issue in ABKCO

was the retroactive application of § 303(b) of the Copyright Act.

233

More specifically, the court considered whether the Johnson songs

were published in 1938 and 1939, when they were released on

phonorecord, as La Cienega dictates. This would mean that the

Johnson copyrights would have expired in 1967 and 1968, twenty-

eight years after their initial publication (i.e., release of the phon-

orecord),

234

since the copyrights were not renewed prior to the

expiration of the initial copyright term. In contrast, if § 303(b), as

amended in 1997, applied retroactively, the Johnson songs would

not have been published until the 1990 Columbia release was

copyrighted because, distribution before 1978 would not consti-

tute a publication.

235

In contrast to La Cienega, the ABKCO court held that § 303(b)

controlled and interpreted the 1997 amendment as simply clarify-

ing the meaning of the 1909 Act, thus correcting the outcome in

La Cienega.

236

The ABKCO holding means that the Johnson songs

recorded by the Rolling Stones “had not entered the public do-

main and were thus not freely available for use by the Rolling

228

Id.

229

Id.

230

Id.

231

Id. at 688.

232

Freedom to Copy, supra note 82, at 535-37.

233

ABKCO, 217 F.3d at 689.

234

Id.

235

Id. at 690-92.

236

Id. at 686.

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 611

Stones in the late 1960s and early 1970s.”

237

As a result of ABKCO,

Johnson’s works will effectively receive more than 100 years of

2047 or later under the provisions of § 303(b).

238

Section 303(b)

reflects an expansion in the rights of copyright owners that in

some instances benefited a class of potential owners whose mem-

bers have typically not benefited from copyright frameworks.

ABKCO does, however, reflect the continuing confusion as to what

constitutes a “publication” of underlying works under the 1909

Act.

239

The ABKCO decision also underscores the continuing

power and confusion that emanate from the visual/nonvisual and

composition/performance distinctions in copyright.

3. Copyright Royalties and the Johnson Estate

In addition to and likely as a consequence of his status as

blues cultural icon, Robert Johnson’s estate has profited signifi-

cantly from the exploitation of copyrights in Johnson’s works. Al-

though the ABKCO case has enabled Robert Johnson’s estate to

collect additional royalties, blues copyright cases have not ad-

dressed questions of equity and fairness for blues artists or simi-

larly positioned musicians more generally. For select blues artists

such as Robert Johnson, however, effective copyright enforcement

has enabled a seemingly fairy tale ending for Robert Johnson’s son

and recently identified heir.

The uses of copyright by Johnson estate copyright assignee

Steve LaVere, contributed to the accumulation of significant royal-

ties in the Johnson estate and Steve LaVere’s wallet. After a series

of at times colorful cases spanning some fifteen years in Mississippi

state courts, Claude L. Johnson, a gravel truck driver from Crystal

Springs, Mississippi,

240

was found to be the illegitimate son of

Robert Johnson.

241

The recognition of Claude L. Johnson entitled

him to receive an estate worth more than $1 million.

242

The size of

237

Benjamin Gemperle, Note, Can’t Get No Satisfaction: How ABKCO v. LaVere Bowed to Pres-

sure from the Music Industry, 22 L

OY. L.A. ENT. L. REV. 85, 97 (2001).

238

Id.

239

Michael Landau, “Publication,” Musical Compositions, and the Copyright Act of 1909: Still

Crazy After All These Years, 2 V

AND. J. ENT. L. & PRAC. 29, 31 (2000).

240

Reed Branson, Robert Johnson’s Blues – Property Rights Law Suit Starts, THE COMMERCIAL

APPEAL Oct. 13, 1998, available at http://www.blues.co.nz/news/article.php?%20id=55.

241

Anderson v. LaVere, 895 So.2d 828, 830 (Miss. 2004) (discussing the status of pictures

of Robert Johnson with respect to his estate); Harris v. Johnson (In re Johnson) (Harris II),

767 So.2d 181, 187 (Miss. 2000) (affirming the judgment of Leflore County Chancery

Court in finding Claude L. Johnson to be the biological son of Robert Johnson); Harris v.

Johnson (In re Johnson) (Harris I), 705 So.2d 819 (Miss. 1997) (reversing and remanding

dismissal of claim of Claude L. Johnson as being time barred).

242

Branson, supra note 240.

612 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

the Johnson estate reflects a translation of his cultural icon status

to the economic and business arena and thus underscores in fi-

nancial terms ways in which Robert Johnson can be distinguished

from his peers.

B. Copyright, Lotteries, and Reward

The Robert Johnson story is a paradoxical one from the per-

spective of copyright rewards. On the one hand, copyright re-

wards in Johnson’s case can reinforce existing narratives about

story exemplifies how copyright can reward meritorious creators.

243

However, at the same time, copyright treatment of Robert Johnson

reflects a cautionary tale of the implications of copyright in con-

texts of collaborative cultural traditions that are later commercial-

ized. From this perspective, as has long been recognized, copy-

right often reflects decisions about the allocation of property

rights to individuals in broader contexts permeated by collabora-

tion and other practices that may involve significant copying. This

is not unique in the blues context, but is also evident, for example,

in contemporary discussions about traditional knowledge. Copy-

right treatment of Robert Johnson also draws attention to copy-

right assumptions about risk, reward, and return.

1. Robert Johnson as Copyright Success Story

On one level, Robert Johnson’s copyright success can be read

as reflecting widespread assumptions about copyright, incentive,

and reward. Under this view of copyright, Robert Johnson’s com-

pensation reflects his unique genius as compared with his peers.

His differential copyright outcome is thus explained in terms of

his differential musical endowments. This explanation, however,

is both circular and difficult to sustain in light of the overall con-

text of Johnson’s creations. Further, much of Johnson’s corpus

reflects a collaborative tradition to which many contributed, but

for which few received compensation. This typical vision of copy-

right has significant implications for “winners” such as Robert

Johnson that emerge from collaborative traditions. This is, in

part, because the distribution of benefits to such “winners” may be

highly unpredictable and even contain random elements more

akin to a lottery than an investment portfolio in expressive works

assembled based on assumptions about underlying costs and pro-

243

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 613

jected benefits.

creation by rewarding creators for their works.

244

Yet, virtually no

empirical evidence exists to corroborate this view.

245

Discussions

about copyright, creation, and compensation often make implicit

assumptions about the nature of creators’ investments in new

works. However, what is often not recognized is that underlying

discussions about risk, incentive, and reward are implicit assump-

tions about the nature of creators’ investments in their creative

“portfolio.”

246

Typical visions of copyright and compensation as-

sume that creators assemble an investment portfolio of creative

works that reflects some reasoned assessment of cost and benefit.

Consequently, creation decisions are assumed to be to some ex-

tent responsive to changing costs of expression and potential re-

wards from the creation and dissemination of copyrighted works.

However, in a world in which the creation of expressive works is

increasingly driven by forces such as celebrity and fame, predic-

tion of copyright benefits seems at best tenuous.

2. Robert Johnson as Copyright Lottery Winner

Another way to potentially read the Robert Johnson success

story is as an example of a copyright lottery winner. In an enter-

tainment arena increasingly driven by fame and factors that may

not reflect clear distinctions in artistic output, at least as consid-

ered from the time a creator makes her initial investment in creat-

ing a new work, outcomes are potentially difficult to predict with

any degree of certitude. Consequently, for a creator making a de-

cision about whether to produce a new work (i.e., invest in her

244

Jane Ginsburg, Putting Cars on the “Information Superhighway”: Authors, Exploiters, and

OLUM. L. REV. 1466, 1468 (1995) (noting that a primary goal of

245

See, e.g., RUTH TOWSE, CREATIVITY, INCENTIVE, AND REWARD: AN ECONOMIC ANALYSIS

OF COPYRIGHT AND CULTURE IN THE INFORMATION AGE 21 (2001) (Towse notes, “We still

cannot say with any conviction that intellectual property law in general, and copyright law

in particular, stimulates creativity. That is no argument for not having it but it should

sound loud notes of caution about increasing it. And we still know very little about its

empirical effects.”); Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of

“Rights Management,” 97 M

ICH. L. REV. 462, 505 n.160 (1998) (noting that the exact role of

Mark S. Nadel, How Current Copyright Law Discourages Creative Output: The Overlooked Impact

of Marketing, 19 B

ERKELEY TECH. L.J. 785, 789 (2004) (noting that economic justification

for copyright prohibition against unauthorized copying is not necessary to stimulate an

optimal level of new creations and in fact appears to have a net negative effect on creative

output).

246

LANDES & POSNER, supra note 98, at 38 (noting that certain copyright laws “reduce the

incentive to create intellectual property by preventing the author or artist from shifting

risk to the publisher or dealer” and discussing author incentives and rewards with respect

to royalty contracts).

614 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

creative portfolio), a lottery model may provide a more instructive

picture of the creator’s investment decision. This model may have

particular explanatory power in the context of creative activities in

corporate contexts.

Robert Johnson’s outcome relative to his peers at the time he

created his music was highly unpredictable. Further, much less

distinguished him from his peers at the time he created his works

than was the case when later commentators and musicians recon-

sidered his musical contributions. This tendency to continuing

reassessment of creative contributions is not unique to Robert

Johnson and is reflected in the reception of other musicians, in-

cluding Johann Sebastian Bach, for example. Although Bach was

famous as an organ virtuoso during his lifetime, he was not as fa-

mous during his life as composers such as Telemann.

247

His repu-

tation as a composer was restricted to a small circle, and many re-

garded his work as old-fashioned.

248

Although Bach became better

known with the issuance of the Well-Tempered Clavier in 1801, more

than fifty years after his death, the revival of interest in his music

dates from the Berlin performance in 1829 of the “St. Matthew

Passion,” with Felix Mendelssohn conducting.

249

The unpredictability of potential rewards reflects and rein-

forces the star system now widespread in the music industry. This

star system underscores the skewed distribution of rewards that are

evident in the musical arena. Further, as is the case with lotteries

more generally, seeing copyright as a lottery suggests that existing

tertainment industry, may foster overinvestment in creative portfo-

lios by some creators and companies.

250

In the case of lotteries,

those who see lottery winning as reflective of skill and who believe

that they can overcome bad odds by smart betting tend to overin-

vest in lottery investments.

251

Robert Johnson and his success may

support or belie assumptions about creation, incentive, and re-

ward in copyright, depending on what assumptions one makes

about the nature of creative investment portfolios assembled by

creators, both individuals and corporate entities.

247

Oxford Music Online, The Oxford Dictionary of Music, Bach, Johann Sebastian,

http://www.oxfordmusiconline.com/subscriber/article/opr/t237/e715 (last visited Nov.

24, 2009) (on file with author).

248

Id.

249

Id.; Oxford Music Online, The Oxford Dictionary of Music, Bach Revival,

http://www.oxfordmusiconline.com/subscriber/article/opr/t237/e727 (last visited Nov.

24, 2009) (on file with author).

250

Elizabeth A. Freund & Irwin L. Morris, The Lottery and Income Inequality in the States, 86

OC. SCI. Q. 996, 1001 (2006).

251

Id.

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 615

C. Copyright Lotteries and Fairness

Pervasive borrowing is an inherent part of creation processes

for many musicians. At the same time, however, borrowing may

have different significance depending upon the socio-cultural con-

text within which acts of borrowing occur. In the contexts of the

blues, borrowing within blues traditions in the Mississippi Delta in

the 1930s and 1940s may have a fundamentally different meaning

than the borrowing that occurred from blues traditions to rock

and roll traditions in later eras. The potentially divergent mean-

ings of similar acts of appropriation reflect nuances of context and

the ways in which socio-cultural hierarchies may play out in differ-

ent circumstances. Consequently, musical practices in musical

traditions, styles, or genres that incorporate extensive borrowing

within the tradition may have different implications when new

practitioners from outside of the first context of borrowing in time

or space or both also begin to use creative forms from that same

tradition. These later uses may be particularly sensitive in in-

stances where new practitioners derive significant commercial re-

turns from their uses. In the case of blues, many such new practi-

tioners by the 1960s were white while the original practitioners

were primarily black. Although many of the new practitioners

were not American, their copying played out in an American con-

text that was highly racialized. Further, pervasive racial distinc-

tions in the recording industry operated in the context of a

broader socio-cultural environment characterized by significant

racial inequalities that raise questions of fairness and distributive

values of fundamental importance for copyright.

252

The questions that have arisen in the U.S. over uses of blues

music are not unique, but rather reflect continuing issues of con-

cern in the copyright arena more generally. Similar questions

arise today, for example, in the context of debates about tradi-

tional knowledge, which has typically been treated as public do-

main knowledge that is free to be appropriated in the interna-

tional intellectual property arena.

253

How copyright frameworks

should treat borrowing in such contexts is not at all clear. It does,

however, militate in favor of giving greater consideration in adju-

dications about copyright to questions of equity and fairness.

254

252

Copynorms, supra note 177, at 1189-90.

253

See Anupam Chander & Madhavi Sunder, Romance of the Public Domain, 92 CAL. L. REV.

1331, 1351 (2004) (noting that TRIPS has left traditional knowledge in the global com-

mons while protecting intellectual products of the developed world).

254

See, e.g., Margaret Chon, Intellectual Property and the Development Divide, 27 CARDOZO L.

REV. 2821 (2006) (discussing the application of doctrines of substantive equality to intel-

lectual property considerations in the global arena).

616 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

The copyright lottery accorded to Robert Johnson raises sig-

nificant questions about the allocation of copyright rewards more

generally. The operation of copyright as a lottery may lead to out-

comes that appear unfair in light of the contexts of original crea-

tion, but that appear appropriate from the perspective of later

commentators. This suggests that risk and reward profiles in

case of collaborative traditions such as the blues in which multiple

participants over extended periods of time may have contributed

to the corpus that was in the end awarded to lucky lottery winners

like Robert Johnson. Although Robert Johnson was clearly tal-

ented and had enormous potential when he died, his rewards rela-

tive to his peers are difficult to explain within the context of stan-

dard assumptions about incentive and reward in copyright.

Outcomes in instances such as Robert Johnson are potentially

troubling because the copyright property rule accompanies narra-

tives and representations about creation and creativity that dis-

count or even ignore the importance of copying and uses of exist-

ing texts in the creation of new ones.

255

Further, even if doctrines

intended to enable future uses, such as fair use, are taken into ac-

count, such property rules have thus far not facilitated a clear de-

lineation between the scope of acceptable and unacceptable uses

of existing material, particularly in contexts of living music tradi-

tions.

Historical consideration of popular music in the American

context suggests that the operation of copyright as a property rule

can also lead to outcomes that belie assumptions typically made

about copyright rewards and that may be manifestly unfair. Al-

though this is recognized to some extent in discussions of distribu-

tive values in copyright, the ways in which copyright has influ-

enced African American artists in particular are often largely

ignored except in specific discussions of copyright and African

American artists.

256

One of several notable exceptions is the work

of Keith Aoki, which has drawn attention to distributive implica-

tions in copyright generally and blues music specifically.

257

General discussions of copyright largely assume a uniform

255

See Bach to Hip Hop, supra note 1, at 638-41 (discussing property and liability rules in in-

tellectual property); Robert P. Merges, Of Property Rules, Coase, and Intellectual Property, 94

OLUM. L. REV. 2655, 2655 (1994) (noting that a property rule can be infringed only after

bargaining with the entitlement holder).

256

See VAIDHYANATHAN, supra note 170, at 117-48; Copyright Culture & Black Music, supra

note 170, at passsim; Hall, supra note 120, at 37-58.

257

See Keith Aoki, Distributive and Syncretic Motives in Intellectual Property Law (with Special Ref-

erence to Coercion, Agency, and Development), 40 U.C.

DAVIS L. REV. 717, 738-45, 755-72

(2007).

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 617

application of copyright law without attending to the implications

of various socio-cultural hierarchies that might influence and dif-

ferentiate copyright.

258

When inequality is considered, it often in-

cludes an unsupported assumption that poorer creators benefit

more from copyright than wealthier ones do. Such assumptions

do not take sufficient account of the hierarchies that have signifi-

cantly influenced the operation of copyright in ways that need to

be better appreciated in current discussions of copyright and rec-

ommendations for copyright reform.

Hierarchy has shaped copyright in many ways, particularly

with respect to which participants in markets for cultural products

have greater permission to borrow. In many instances, existing le-

gal structures may facilitate particular patterns of borrowing that

often disadvantage market participants with less power, including

African American musicians, who historically have been at the bot-

tom of most societal hierarchies of status and power.

259

Hierar-

chies have facilitated the development of extractive and at times

exploitative patterns with respect to African American music, par-

ticularly prior to the first half of the twentieth century. As a result

of such patterns, borrowings from African American cultural

sources have been widely permitted. This is not necessarily a bad

thing given that borrowings are endemic and necessary parts of liv-

ing cultures.

Borrowings from African American music, however, raise

troubling questions about when borrowing becomes exploitation.

Further, African American musical forms have historically been an

important source of musical innovation,

260

which has contributed

to perceptions of exploitation given tendencies with respect to

borrowings from African American culture in commercial con-

texts. Ironically, creators who base their works on borrowings

from disempowered groups may then be able to use copyright to

block borrowings from their works, despite the fact that their own

works borrow extensively.

261

258

See, e.g., Molly Shaffer Van Houweling, Distributive Values in Copyright, 83 TEX. L. REV.

1535, 1538 (2005) (“Thus copyright seems, historically at least, to have benefited poorly

financed creators more than it has burdened them.”).

259

See Catfish Row, supra note 169, at 311-13 (discussing borrowings from African American

music by George Gershwin).

260

Susan McClary, Rap, Minimalism, and Structures of Time in Late Twentieth-Century Culture,

in A

UDIO CULTURE: READINGS IN MODERN MUSIC 289, 289 (Christoph Cox & Daniel War-

ner, ed. 2004) (noting that a succession of African American musical genres, from rag-

time to rap, have “stamped themselves indelibly on the lives of generation after genera-

tion . . . [as] the most important tributary flowing into today’s music,” which is a function

of “the exceptional vitality, creativity, and power of musicians working within these idi-

oms.”).

261

Id. at 331.

618 CARDOZO ARTS & ENTERTAINMENT [Vol. 27:573

Contexts of borrowing highlight ways in which copyright may

be under-inclusive and fail to adequately protect forms of cultural

production that perhaps should be protected. While copyright

has been characterized by some as under-inclusive, inadequate

protection for some types of cultural production exists in a

broader cultural milieu where many assert that copyright is over-

inclusive. The key to resolving this seemingly paradoxical situa-

tion rests in better identification of the scope of acceptable copy-

ing in varied contexts with simultaneous reassessment of the as-

sumptions about cultural production that have led to the current

state of affairs. The need for better demarcation of the zone of

acceptable copying is further underscored by the existence of var-

ied models of cultural production, including valuable asset models

that are one important reason that some assert that copyright is

over-inclusive and that may impede the diffusion and dissemina-

tion that are important aspects of living cultural traditions.

The need to both encourage and police diffusion suggests

that music, in the end, may be better suited to the operation of li-

ability rules, which would begin with an assumption of borrowing

as a norm and require compensation when works are borrowed.

Although not without problems, including questions relating to

determination of appropriate levels of payment, such liability rule

frameworks have the potential to address the ways that copyright’s

operation in particular contexts may reflect and even magnify ex-

isting inequalities. Liability rules will also underscore the reality of

borrowing as an important aspect of the aesthetics of many artists,

from classical composers to blues and hip hop artists.

262

Such rules

have the potential to promote vibrant forms of cultural produc-

tion such as the blues, while ameliorating some of the more nega-

tive aspects of the operation of copyright law.

ONCLUSION

Understanding how creators make decisions to create or in-

vest in creative works is a key issue in copyright. Such decisions

are shaped by risk and context in ways that may not always reflect

dominant assumptions in copyright theory. A contextual under-

standing of copyright should use the lessons of the past to shape

the structure and operation of copyright in the future. Examina-

tion of the operation of copyright in specific instances such as

Robert Johnson and the blues can point out complexities that un-

derlie the operation of copyright.

262

See Bach to Hip Hop, supra note 1, at 629-44.

2010] PROMISE AND PERILS OF MUSICAL COPYRIGHT 619

Some complexities arise from underlying theories of copy-

right, as is reflected in the distinctions made between visual and

nonvisual forms of musical reproduction. Notions about composi-

tion and performance closely track this visual/nonvisual distinc-

tion. Such theoretical assumptions are increasingly out of sync

with musical practice and the widespread technological innova-

tions that have changed the context of music at multiple levels, in-

cluding with respect to creation, reproduction, dissemination, and

composition.

Other complexities arise from context. Allocations of rights

in the copyright context take place in a broader socio-cultural

context permeated with hierarchies that may influence the effec-

tive operation of copyright frameworks. Copyright discourse

needs to be based on better understanding of the actual operation

of copyright. The role and power of copyright expanded signifi-

cantly during the course of the twentieth century and is likely to

become yet more magnified in today’s knowledge- and technol-

ogy-intensive society.