References gone awry

Recently, my SocNets blew up with a self-penned post by a musician who is in the midsts of a brutal copyright infringement lawsuit. Anyone with any experience in Intellectual Property law will tell you how complex the entertainment industry has made dealing with copyright both in the United States and throughout the entire world. The rights granted and the protections those rights give rise to vary greatly in scope and time as well as a myriad of different filing procedures to claiming the right as well as litigating infringements. It is not for the faint of heart and many young, nieve musicians make fatal errors which produce lapses in coverage for even the most basic provisions of the right.

While on the surface it’s a great sob story of an minor artist accusing a multiplatnium star of ripping them off there’s probably much, much more to the story than what the aspiring artist is actually telling. I’m personally way too cynical to believe the little bit of back story the artist provided as being all the facts in the case. I’m not discrediting her belief she wrote it first and someone “stole” it, I wasn’t there, so I don’t know. That part we can set aside.

What bothered me about her open letter was more her insane belief that real artists are individuals who somehow work in a void and that successful artists simply steal other people’s ideas. Her exact quote was, “Throughout history, individuals working in lonely places – Einstein, Edison, Chopin, Virginia Wolf – bring ideas to life. Something happens when people go off on their own to create. Something original.” From someone who studied music history as deeply as I have I know for a fact this statement is patently false as creativity in music has always come from a myriad of different facilities only a small percentage of which are those who crafted their works in isolation and furthermore her examples are just insanely useless to boot.

I’d perhaps be more open to the possibility of her notion, perhaps, if she didn’t use an example Thomas Alva Edison (her first example, mind you). As much as I am a Jersey kid who staunchly defends the legacy of my State’s influence on the nation and the world and love Edison for his contribution to that, what she supposes Edison did and how he did it is entirely incorrect. It reeks of the ignorance of someone who’s history lessons ended somewhere around the second grade. It’s been proven as historical fact both by his own notes and that of his underpaid and over worked shop assistance Edison did not invent alone in a garage. More likely that fairy tale image was closer to his rival, Tesla. Most of the “inventions” he was credited with were actually made by other people and he either outright stole them by patenting them first, made subtle improvements on them which he was able to subsequently patent and thus look like it was his own invention after he successfully licences his changes, he purchased from unsuspecting inventors and sold under his own brand, or came from his lab assistants who gave up their own intellectual property rights to be part of his crew and thus Edison could take credit for. He was a shrewd man who utilized his exceptional knowledge of Intellectual Property at the time to run an effective Patent creation, licensing and litigation business. Edison was lots of things, many of them pretty great too, but an original inventor in some lonely lab probably wasn’t one of them. He’s likely much closer to the pop star she hates in her post than to herself.

When she references Einstein too it’s almost baffling. Albert Einstein began his work in a patent office before becoming a university professor. He was exposed to a great range of other thinkers and their ideas throughout his career which influenced directly how he approached his own thought and his biggest achievements were not dreamed up in some lonely back room out of the blue but as part of both a community of scientists he worked with at the programs housed in the Universities he taught and studied at, including at Princeton, as well as leveraging all the works of his predecessors and contemporaries in order to craft the new theories he’s credited with creating. Proving Einstein was indeed correct in those theories didn’t mean he worked alone, but again with the scientific community as a whole that verified his work. Remember too, that Einstein’s contribution to what would become the Manhattan Project wasn’t something he alone came up with but something proposed to him that he signed onto later. Furthermore Einstein along with Szilárd, Teller, Wigner and others combined their intellect and knowledge to further not just science but in social activism as well. It’s widely assumed his work isn’t plagiarized but it certainly wasn’t created in some kind of void of solitude as the writer’s open letter seems to suppose.

The most deafening was her reference to Frédéric François Chopin. Despite his preference for small salons as a performance medium, Chopin didn’t perform or compose outside of the influence of others. He was a well known public figure and one of the Romantic era’s superstars. He possessed a keen friendship to contemporary Franz Lizst and despite their different archetypal approaches to writing were known to actively borrow from one another, as well as both using past composers and other contemporaries in crafting their works including that of another supporter and friend, Schumann. Previous to the modern era of domestic copyright it was quite common to find composers and performers borrowing from one another sometimes directly and without attribution. Chopin hardly seems like the prototype artist she describes even when taking a cursory look at his life and works.

What the writer’s letter proves to me is that she doesn’t understand history, which, knowing she’s also educated in the United States where history lessons are notoriously lacking isn’t really all that surprising. Much of what she assumes is just the kind of force fed second grade dumbed down version of events I remember being told to before I actually studied them as an adult. And, what’s sadder is she’s intending to speak specifically about music and names only one musician in her examples when she should have probably steered the focus there for a statement of defense if indeed her thesis was true. It’s just poorly structured argument from the opening salvo because of this.

As for copyright infringement, although I feel bad that she’s waging a very expensive battle right now where she’s forced to prove that her song is really hers is exactly what our adversarial judicial system was set up to do. The facts need to be laid out and establishing the fact from belief, or worse, fiction, takes time and resources which translates to money. It’s not clear in the article if she’s being countersued or not, she never explains herself after the inflammatory headline but that’s not really the point in my mind. Suits, counter suits, burden of proof and the establishment of facts exists for all these kinds of cases, not just IP law, and it’s part- and- parcel to the way our system works. That’s what you signed up for by bringing the suit in the US courts and it’s up to you to do the due diligence in taking your suit through the system to understand exactly this point.

The string of big-named wins who’s lawyers railroaded the cases is indeed well documented and receives a lot of media fan fare but it’s cherry picking results and not always accurately representing what actually happened. The current stand of “average joe” / “ordinary observer” has been in place for a very long time and the standard is well defined and level of confusion has been litigated by all kinds of composers from bar room hacks to multiplatnium artists and the results have indeed varied with little statistical evidence pointing toward money always buying results from what I could find with just doing a cursory search. It is, of course, more beneficial if you have the money to survive the litigation process, but it’s certainly not a pre-req particularly if you took the necessary steps in documenting your work. Again, I don’t know the details of her particular case as she doesn’t lay them out in the article other than a brief comparison of each song but she comes off as someone who doesn’t understand how the system is set up in the first place and coming from this place of ignorance seems to belly ache about her own confusion because she didn’t get her way in the outcome.

Where she’s indeed correct is that intellectual property litigation is both difficult and harrowing as a process – but it ALWAYS has been since the first IP was granted formal statuary protection in England, this is absolutely nothing new, but to position herself the way she has is disingenuous and a little bit of a sore loser.

This isn’t a war on the little man as she tries to say. There are plenty of independent musicians out there right now making enough money to survive not accusing anyone of stealing their work and probably not actively stealing anyone else’s work either. The preponderance of evidence shows, in fact, that collaboration is at an all time high these days and the ability for artists and non-artists alike to be exposed to innumerable melodic and rhythmic snippets bombarded at them at an unprecedented level (one study I read supposed exposure in one year for a modern listener might exceed that of what someone 100 years ago would experience during their lifetime). Musicians, writers, producers, engineers, mixing specialists, composers, managers, agents, publishers, label reps and the entire web of the current music industry are inevitably going to coexist and more than occasionally be influenced by, borrow from, an otherwise create through one another. Through it the recent boom of creatives that has come out of the lower barrier to entry that digital has allowed for music infringement isn’t up by any statistical measure, litigation isn’t so pervasive that it’s stopping creativity and theft isn’t rampit in a quantifiable way at all.

The class war she wants to start just furthers that point and because she uses factually incorrect information to set up how she’s somehow more important to the art of music than that of her adversary in the law suit undermines her argument. While I feel bad for her that someone may have indeed stole what she believed was an original idea the act of quoting, sampling, or otherwise covering someone else’s work is well established both in modern music and throughout the entirety of music history. Some of the greatest rivalries in music stemmed from the supposed stealing of ideas including. For example Led Zeppelin and Eric Clapton have both expressedly and covertly used other blues artists works over the years as well as having their own works both expressedly and covertly used by other artists. It’s so common and ingrained in how music is created it’s almost a subtle expectation at this point.

Being completely original has never been a prerequisite for being either a great artist or performer and certainly this ill conceived notion of being a great artists somehow stems from “Without exception, these men and women work…alone.” To believe so is such a high form of self indulgent ignorance it’s actually insulting to the thousands upon thousands of collaborative artists (and by this I mean not only the musicians but the whole entourage it typically takes to create a record or stage a performance) who literally changed the way we create and consume music. No successful artist works completely alone and in a void these days and the examples of those who supposedly did in the past probably depend on a very, very narrow definition of what it means to create “alone.” If you’re going to have any hope at convincing me they did, miss artist, you’re going to have to do much, much better than the terrible examples you provided in only one of which comes from music.

Finally, there’s one last point that rubbed me the wrong way that she kept coming back to. While one may not like certain pop artists for their personas, shenanigans and costumes there’s a certain other kind of performance creativity involved too. The pot shots taken during the article somehow seek to say serious musicians only focus on the compositions and not on the entirety of the performance which is completely stupid as for generations of performers there’s always been some segment of them who were grandiose in their own right be it Paganini’s expressiveness which was considered over the top at the time or Cab Calloway’s energetic style that challenged band leaders to be more than conductors or Elvis Presley’s hips that changed the way vocalists presented themselves to the likes of David Bowie, Alice Cooper, Kiss and so on, all the way through to Lady Gaga, Katy Perry and the latest round of extravagant behavior and overt entertainment presentations. It’s a different kind of creativity to do these things. It might not be creativity you like, or even understand, or possess yourself, but it’s creative. Period. Like it or not, and it’s readily apparent the writer didn’t, it is a part of what music is and has been for a very long time now.

Sadly, what could have been an amazing critique of the antiquity of copyright law and the actual challenges for unknown musicians to navigate the vast system of IP that governs their work (both c and p copyrights, trademarks, likeness rights, etc) as well as the confusing depths of the entire entertainment ecosystem (labels, performing rights companies, publishers, musicians unions, managers, lawyers, producers, engineers, etc.) is lost in a meandering mess of bullshit screaming of poor me ignorance.


About thedoormouse

I am I. That’s all that i am. my little mousehole in cyberspace of fiction, recipes, sacrasm, op-ed on music, sports, and other notations both grand and tiny:
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