In the United States, we have an obsession with property. This obsession can be traced back to our foundations. The founding fathers, (Jefferson is a great example) were very much influenced by political theorist John Locke. As anyone who has read Locke’s treatises can tell you, Locke envisions government’s primary purpose is securing the property of its citizens. The means by which government does this is fairly obvious in cases of physical property. If you steal from someone, you are held criminally liable. The question is what happens you aren’t taking anything physical? What happens when you take a concept or idea? This area isn’t as clear.
When the concept of idea is a work of creativity or the intellect, we guard the fruits of our labor with a copyright. This way, not only do we ensure that we are gaining recognition for our efforts, we are also ensuring that we will receive compensation whenever someone else profits from the work we’ve done. This all seems like an idea that is obviously to everyone’s advantage. Those who’ve done the hard work get rewarded, while those appropriators and thieves get punished. The problem is that there are many gray areas in the land of copyrighting.
The example that has been thrown around recently, is that of the adaptation of a hindewhu performance by jazz artist Herbie Hancock, and the later sampling of this adaptation by Madonna. In this case, Herbie Hancock took a traditional Congo musical form called hidewhu and reproduced it for his successful song “Watermelon Man”. The original performer of the hidewhu was not given credit for the inspiration, nor was she even informed of the album. It’s highly likely that she doesn’t even know who Herbie Hancock is. On the other hand, when Madonna sampled Hancock’s song “Watermelon Man”, she made it clear where the sample had come from.
One would expect this sort of behavior from a capitalist system with stringent copyright laws. With Hancock’s adaptation, you don’t have an individual who legally owns the intellectual property taken. There is no need to credit someone else’s property if it does not legally exist. In the case of Madonna’s sampling, you have someone who has a legal claim to the property that was utilized. There would be a lot of legal ramifications if she had failed to give credit to Hancock. She clearly took a piece of Hancock’s work and used it for her own purposes. Both Hancock and Madonna are doing what is in their best interest, commercially and creatively.
This seems to make perfect sense. When one gains inspiration from a source, there is no need to directly credit that source. If, for example, I am inspired by the sound of crickets chirping and as a result of that inspiration, compose a song, it would be silly to credit the crickets. They are merely doing what they would do otherwise, and I am merely gaining a spark of creativity from their actions. There was no labor whose fruits must be defended, and I produced nothing that wasn’t the results of my own labor. In the same way I was inspired by chirping, Hancock was inspired by the call and response whistling and yelping of hindewhu. This is a far cry from the direct lifting that is found in sampling.
If we believe that when I am sampling a song that is legally recognized as the product of another individual I give credit to that individual, and when I am just drawing inspiration from a song, I have no need to give credit, then that does little to explain a law suit involving the former Beatles guitarist George Harrison and 1960’s Doo-wop group The Chiffons.
After the break up of The Beatles, all of the members went on the have solo careers. The first single of Harrison’s solo career was the song “My Sweet Lord”, his tribute to the Hindu god Krishna. The song is very pleasant. It has Harrison’s trademark guitar solos and contains lyrical content that is deeply personal. The melody is catchy and nice to listen to. It is this melody that got Harrison into trouble.
After the release of the single, people began to allege that the melody of “My Sweet Lord” was directly lifted from the 1963 song “He’s So Fine” by The Chiffons. Harrison was sued, and the courts decided in favor of the plaintiff. The decision was appealed, but the appellate court upheld the original decision. Harrison, regarded as one of the most creative minds in popular music at the time, was now legally guilty of plagiarism
Listening to the songs separately one shouldn’t have any trouble hearing the similarities. It is the same tune. There is no getting around it. However, in case there are those who have their doubts, there is the following recording someone put together of the two tracks overdubbed. Clearly, the tune is the same (on a side note, one might want to check out a recording by an artist named Jonathan King, who recorded “He’s So Fine” in the manner of “My Sweet Lord”. It may be of further interest to note that King wasn’t sued for this action).
So why was Harrison sued, and Hancock was not? The answer is of course, copyright law. Hancock didn’t adapt anything that was copyrighted, while Harrison either by ignorance or willfully, took the tune of “He’s So Fine” and used it for his own. Copyrighting serves only those who have the means to use it to protect their work. This is great if you live in a modern capitalist society which regards music and other pieces of intellectual property as something worthy of legal protection. It’s not so great if you were recorded in the jungles of the Congo, and have no ability to protect your work, or to retaliate against those who have appropriated it.
To summate, we have inconsistencies in our copyright laws. These inconsistencies serve those who have the means to take advantage of the United State’s copyright laws. Those with the means to do that are often those in a position of power and privilege. Thus we are able to see that copyright laws serve those in power, and disregard the needs or rights of those in weaker positions of power relationships.
So how do we deal with these inconsistencies? One thought is the development of the copyleft system. This would allow the distribution and adaptation of works without the risk of violating a copyright. This also assumes that no one directly profits from the work, however, and would likely be met with resistance from the property obsessed United States. It would however even the playing field. You would no longer have one group of people (those with ties to the music industry) who have the benefits of the copyright law while another group of people (those living in the Congo for example) who are only taken advantage of.