More © critics who don’t get the creative process.

It often seems as though each time an artist, let alone a legend, pays homage to the past, some pundit with an axe to grind on copyright seizes the moment to declare the contemporary law restrictive to creative development.  Variations on the theme of “artists could never do that today” have been trotted out in essays, some thoughtful, others not so much.  In this latter category, Ed Krayewski, writing for reason.com, picked up a few themes from Bob Dylan’s 20-minute Grammy Award acceptance speech when he was named Person of the Year by the Recording Academy’s philanthropic program MusicCares.

Dylan pays homage to his well-known roots in folk music and offers tribute to artists who performed his work in the early days. Dylan says, “I also have to mention some of the early artists who recorded my songs very, very early, without having to be asked.”  Krayewski offers this quote referring to Peter, Paul, & Mary as evidence that having other artists play a songwriter’s music has value, as though this some sort of revelation.  Not only does this come under the professional column labeled “No Shit,” but Dylan isn’t even saying what Krayewski seems to think he’s saying.  “Early artists…recorded….without having to be asked” means Dylan didn’t ask them to play his songs, but he was delighted they did.  And nothing in copyright law today prevents this from happening artist-to-artist in the same nascent environment Dylan is describing about his early career and that of Peter, Paul and Mary. In fact, once a song is published, the songwriter cannot prevent a cover from being recorded, even if he wants to, as long as the performing artist pays a fee.  But this licensing process hardly “locks up cultural heritage,” as IT policy consultant Steve Worona tweeted and was quoted in the article by Krayewski.

Dylan has spoken and written so much about his process, his inspirations and derivations, that his words have frequently been served up as proof that copyright kills creativity.  The problem is the argument is so often based on an assumption that the exception proves the rule.  For instance, there is this quote pulled by Krayewski from Dylan’s speech:

I learned lyrics and how to write them from listening to folk songs. And I played them, and I met other people that played them back when nobody was doing it. Sang nothing but these folk songs, and they gave me the code for everything that’s fair game, that everything belongs to everyone.

Ah, ha!  There we have it!  Proof from the master’s mouth himself that work is derivative and, therefore, we can conclude that copyright stands in the way of the creative process!  Except, no.  Again, for an author of, well,…anything this quote also kinda sits in the “No shit” column.  Woody Guthrie or Pete Seeger might say essentially the same thing; certainly they’ve said similar things, but can you tell these artists apart?  Can you tell the differences among Dylan and Guthrie and Seeger and Guthrie the Younger?  In those differences is the work that becomes copyrightable, yet none stifles one another or anyone who has come since to break out of those famous shadows.  Krayewski suggests Dylan’s generation is more litigious than its predecessors, which implies that the present generation of musicians has been left gnawing on musical table scraps because all the damn boomers locked away the prime cuts under copyright.  How then, did that generation produce so much music without spending their lives in court? And where the hell did some wonderfully innovative works I just heard by The Punch Brothers come from?  For that matter, where did all of Dylan’s post 1976 works come from (except the Christmas album), if the “copyright environment” is so toxic? Because there are infinite variations, and artists know this.

The only thing that’s really changed about the copyright environment is that there are tech-industry interests aligned against it.  As such, perhaps the supposedly free-market libertarians at reason.com should look at the economic pressures on contemporary artists as a threat to culture rather than copyrights.  But most especially, they should stop presuming to know anything about the creative process and the ways in which artists draw from one another and still manage to create their own works.  There’s a reason the ability to do this is called a gift.  It’s special, it’s rare, and not everybody gets it.

© 2015, David Newhoff. All rights reserved.

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12 Responses to More © critics who don’t get the creative process.

  1. John Warr says:

    Six years ago some friends of mine recorded a folk album, which included a Dylan song. Their day jobs are as Elementary school teachers. I asked how they arranged that. The answer was

    We filled in the PRO form, say how many copies we were going to make, and pay the fee. We used to do it ourselves on the first couple of albums, but now Joe at the studio does it for us.

    • AudioNomics says:

      lol exactly… This is precisely how a songwriter ( ahem, Dylan, ahem) earns a living writing songs bands will play and record. That this flew over the article writer’s head David linked to- isn’t confirmation that copyright is flawed (rather th opposite, imo) but that the articles author doesn’t seem to have a clue. I love how “tech” writers, given the ‘ease of information’ available today, do not avail themselves to said information before writing nonsensical articals…

  2. monkey says:

    to be fair, Dylan did borrow a lot of his melodies from earlier tunes. Technically, if the descendants of the authors of the tunes “Merry month Of May” and “notamun town” owned a copyright they could have sued Dylan for “with God On Our Side” or “Masters Of War” respectively. But I’m pretty sure you’re not a “copyright absolutist” who believes in copyright in perpetuity.

    personally, I believe in legacy copyrights as long as they’re timely registered and renewed. One of the more bizarre conflicts recently have involved the families of comic book creators and comic publishers (Siegel and shuster, creators of superman, and Jack kirby, cocreator of pretty much everything marvel).

    Bizarrely, comic book fans came out in favor of the big corporations (in fact, two of the biggest media corporations), claiming that the families had nothing to do with the work – ignoring the fact that warners and Disney had zero to do with it. They just wanted more stuff (and maybe unconsciously they felt that if they pirated from a big corporation it wasn’t as big a deal.)

  3. sf46 says:

    “As such, perhaps the supposedly free-market libertarians at reason.com should look at the economic pressures…”

    Indeed! The anti-copyright stuff is what finally killed libertarianism for me*. I still don’t understand how anyone could believe in markets and capitalism and be as against copyright as Reason et. al. is. I don’t even really understand how you get there from here. I guess because you hate government so much you hate the idea of them enforcing copyright? I dunno, it never made any sense to me.

    *I was slowly moving against it in other ways but I’m still a pretty pro-market guy. The anti-copyright thing just made me think that I can’t trust libertarians to actually take care of a market either.

  4. Sorry guys but Dylan wasn’t the best writer of all time and I don’t see why anyone would use him as an example. Folk is a genre that inherently steals from the past. It’s not called “new original” genre, but folk, as in “of the people” and of the past.

    • David Newhoff says:

      The degree to which one likes or does not like Dylan, considers him genius or not, is irrelevant to the point of the post. Art steals from the past, which in no way supports an anti-copyright agenda.

  5. From the article:

    “Today, happening to use some of the same chords as a copyrighted song could cost you—no problem if you’ve got a song that’s already a hit but it creates a chilling effect of the broader creative community, that may be afraid to transform prior works the way someone like Dylan would because yesterday’s musicians are far more litigious today than their own predecessors were.”

    You wrote:

    “How then, did that generation produce so much music without spending their lives in court?”

    Because TODAY it has become more important to protect creative works from exploit. Because TODAY music is instantly available all over the world. Because TODAY more music is available as a product than ever before. You left out the whole “today” part in your references, and the distinction is quite important. They are more litigious TODAY, because they have to be. Because a hit song, regardless of the source, may be worth a lot of money, and people always want to get paid.

    And this is the problem, IMO. Viewing creative works as a product first and foremost.

    From Dylan’s Speech:

    “I learned lyrics and how to write them from listening to folk songs. And I played them, and I met other people that played them back when nobody was doing it. Sang nothing but these folk songs, and they gave me the code for everything that’s fair game, that everything belongs to everyone.”

    And the article again:

    “Were these different folk standards composed in a legal climate such as today’s, they would never be “standards.” They’d be copyrighted and would lose their status as musical currency that can be passed around, performed, revised, and rewritten and so forth.”

    Again, notice the word TODAY. Work is still shared. Creative ideas still flow freely, and that is facilitated by technology. That is the whole point of a lot of the technologies you seem to rail against, not infringement, not theft. Sharing, spreading the word, expanding the horizons of the artists, just like in Dylan’s day.

    The distinction MUST be made between exploit and expression. Between a creative work of art, and a commodity. Work must be valued by on it’s own merits, not based on it’s influence in the creation or derivation of other works.

    Dylan’s speech:

    “They took a song of mine that had been recorded before that was buried on one of my records and turned it into a hit song. Not the way I would have done it — they straightened it out.”

    Once they started making money. Once the song became a “hit”. THAT is when it’s value, and therefore Dylan’s stake in the song come into play. And that is what needs to be worked on in regards to modern technology. The balance between true sharing(and even exploiting) of creative ideas and the compensation for the originator.

    I don’t see the author of that piece as being so much concerned with artists getting what is due(credit or cash) to them as he is with the idea that copyright has the potential to be used to limit creative collaboration/derivation.

    • John Warr says:

      But its not stifling. The same things that happened in Dylan’s young days, still happen today. I’ve made a couple of posts describing the folk scene and how it still works today the same as it did 50 years ago. Songs, tunes, arrangements are passed about and developed daily. What has happened in most cases is the jukebox or tape recorder band. You see it on shows like Pop Idol where the performances are a replica of some earlier version. The best example I can think of is a rendition of “Over the Rainbow” where the kid reproduced the version by Israel Kamakawiwo’ole right down to the mispronunciation of “chimney”.

      There are 100s of different versions of “House of the Rising Sun”
      http://www.metafilter.com/119083/There-is-a-house-in-New-Orleans

      and I mean different version, not the same version, same arrangement, same words just different singers.

      • I agree, it still does happen. In some ways the actual collaboration/sharing process is more prevalent than ever. What I think the author was trying to say was that there is a risk that comes with that collaborative “everything belongs to everyone” mentality in today’s climate.

        The problem is certainly not copyright in an of itself, any more than the problem with infringement is technology(in and of itself).

        The problem is the potential for abuse, in both cases. And that is the ultimate point I took from the article. It is that pause, the question that every creator must answer at some point when referencing other work or even simply having a sound reminiscent of other work. And not just because someone may want to sue you. You may have a wholly original idea that sounds like something else and find yourself tied to a previous work or artist, even if that is not how you want your material to be perceived.

        What Dylan had that we don’t is the ability to spread and to experience things in a gradual fashion. The nature of our world prohibits that, and in some ways, I think that is a shame. Then I see a kickstarter where old school musicians who live in four different cities can plug into what looks to be the size of a foot pedal and play/collaborate in real time. I see songs composed from disparate clips of original works on youtube.

        So yeah, there is both good and bad. Like I said, I think the author is mainly referencing that “pause”, the question. Dylan just played, he just experienced. I don’t think the sky is falling per se, but I do agree that times have definitely changed.

      • John Warr says:

        I chose to example HOTRS as it has an interesting folkmusic, Dylan, copyright story to it. The most successful version was written by Georgia Turner and recorded by Alan Lomax. This is the version which Dave Van Ronk sang and who’s arrangement Dylan used on his first album. It used to be a signature song for Dave but he hadn’t recorded it, and after Dylan’s first album came out everyone accused him of copying Bob. Later when the Animals recorded it Dylan could no longer perform it because everyone accused him of covering the Animals. Meanwhile Alan Lomax had secured songwriter copyright for Georgia Turner, the income of which paid her medical bills in the last years of her life.

  6. AudioNomics says:

    AV-
    ” Dylan’s speech:

    “They took a song of mine that had been recorded before that was buried on one of my records and turned it into a hit song. Not the way I would have done it — they straightened it out.”

    (AV) “Once they started making money. Once the song became a “hit”. THAT is when it’s value, and therefore Dylan’s stake in the song come into play. And that is what needs to be worked on in regards to modern technology. The balance between true sharing(and even exploiting) of creative ideas and the compensation for the originator.”

    uhh… of course that’s when the money comes…. and there are already systems in place to account for this… see my link above…
    The responsibility is on the people doing the cover tune to account and pay the mechanical license. What is actually missing today is some way to do the same (in a fair manner for all involved) for streaming. if “streaming” is going to be the preferred waY of access going forward, the mechanicals need to reflect this. This is the songwriters lifeblood, and it’s currently being left to bleed-out.

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