Tuesday, August 11, 2009

Just Let 'em Play: Jazz and Copyright Law

This entry is brought to you by the Department of Lose-Lose Situations: welcome to the world of copyright law and jazz :-) If you are looking for a game where none of the participants understand the rules and everyone walks away a little worse for having played, well, you've come to the right place...

Quick disclaimer: As an attorney, let me state once and for the record that I am not speaking as an attorney on this issue :-) I took a grand total of one intellectual property course in law school and left more confused than when I entered...so with that huge block of salt, please read on!

Anyway, in anticipation of a long bus ride I was recently digging through some old papers in search of reading materials when I came across a Harvard Law Review article entitled, "Jazz Has Got Copyright Law And That Ain't Good." Much like "Snakes on a Plane," the title here says it all. It's actually a fascinating and well-written piece (the copyright one, not "Snakes...") and the author has clearly done a lot of research on how jazz is played--or was a musician him/herself.

If you're going to analyze the copyright system and jazz, you need to start by acknowledging that while there have been thousands of wonderful original compositions written by jazz musicians, the most compelling/defining characteristic of jazz is that musicians take popular songs and improvise over the underlying structure (the "chord changes"). The author's premise is that copyright law (at least as it was structured in 2005) simultaneously hinders jazz musicians and fails to give us adequate protection. The major issue stems from the fact that copyright law is composition-oriented and thus protects the underlying composition rather than the subsequent improvisation. This becomes a big problem when you consider how much of jazz music involves playing over "standards"-- songs from the Great American Songbook, for example, that have been reinterpreted by jazz musicians for generations (and given that jazz has so much respect for tradition, certain songs have stayed in the "canon" for decades):

"One major source of tension between copyright law and jazz is the law’s insistence on characterizing the underlying composition as an expression rather than an idea. The law essentially values the initial creativity and originality more highly than the subsequent work created by the jazz artist. This skewed valuation results in the mistaken treatment of the jazz standard as a creative work that is merely interpreted by the jazz musician. But the standards, while independent, creative works at one time, take on a different role when employed by the jazz musician. In jazz, the underlying composition is simply raw material — it is not intended to be the end product that reaches the listener or consumer, but is simply the idea from which the predominantly improvisatory expression flows." 118 Harv. L. Rev. 1940, 1948 (2005)

Ok, so what does this really mean for jazz musicians? After all, the author correctly notes that on a practical level, only the melodies themselves are copyrightable-- the chord changes are not:

"The application of the idea/expression dichotomy is not simply theoretical. It turns out that jazz standards’ harmonic progressions are only given a “thin” copyright. So long as the jazz musician changes the melody, the new piece is considered original. For example, many new jazz songs are merely new melodies played over existing chord patterns. [For example, t]here are literally hundreds of jazz compositions considered original that are in fact based on the chord progressions in “I Got Rhythm.” While no case explicitly holds that this is permissible, the failure of any court to find it impermissible squares with the above analysis." 118 Harv. L. Rev. 1940, 1948 (2005) (citations omitted)

Given how abstract this all is, let me give a couple of real-life examples. One of my former teachers wrote an instruction book (and for obvious reasons, I won't be using any names in this post :-)) where he talked about some techniques for improvising over a number of the classic standards, including "Autumn Leaves." The book also included a "play-along" CD so that students could practice the techniques. The copyrightable melody was never played and totally irrelevant to the lesson, but he (or his publisher) did not want to take a chance on violating the law so they simply changed the name of the track to "Fall Foliage". Most people knew what he meant, but those unfamiliar with the genre were no doubt confused...

Ok, no big deal, it's just a book. So how about this-- in 1999 I worked for Americorps in Paterson, New Jersey, and helped start a community jazz program with the focal point being to teach kids from low-income households about jazz. To raise money for the program we made a recording with local musicians and students playing jazz tunes over which we had taught them to improvise. But the licensing fees to use the songs would have probably exceeded any profit we would have generated, so I just wrote a bunch of new melodies over the traditional chord changes and we used those. I wish that I could tell you that my "compositions" were lovingly crafted works of art, but the truth is that I wrote them all in a Dunkin' Donuts parking lot a few hours before the recording...

One might reasonably counter these examples by arguing that my teacher should have paid to license the songs and thus produced a better product, and that he would have recouped any costs by selling more books. One could make the same economic argument about our fund-raising CD. And it's also possible that we could have contacted an attorney (this occurred prior to my attending law school) and found some sort of charity loophole or got the copyright holders to waive or reduce the fees...

But this brings up another issue, that of "transaction costs" -- basically, additional costs to everyone involved to resolve an issue or undertake a transaction. Hiring a lawyer or attempting to negotiate with another party generates transaction costs. Given that both economic and legal policymakers frown on high transaction costs as wasteful, the copyright system has attempted to ease these by setting basic fees and handing over most management of copyrighted musical compositions to the "Harry Fox Agency." This theoretically allows musicians to pay for the rights to use songs on their recordings by just dealing with Harry Fox. But problems still arise when it comes to jazz. The licensing scheme usually makes the musician pay a set fee for the use of the song, then pay an additional based on the length of the recorded song. So assume that you're a jazz musician and you record a version of "Autumn Leaves." You play the melody for one chorus (copyrightable), then you and everyone else in the band improvises over the chord changes (not copyrightable) for 15 more choruses, then you play the melody one more time to end the song (copyrightable). Assume also that each chorus takes 30 seconds and that you play an original intro and ending for a total 9 minute recording. Finally, assume that you are making 1000 copies of your recording. Here are your costs:

First 5 minutes: 9.1 cents x 1000 = $91
Second 4 minutes: 7 cents x 1000 = $70
One time licensing fee: $15
Total: $176 (for 1 song)

In this case, the jazz musician has to spend $176 just for the privilege of playing the melody-- which only comprises a little more than 10% of the total piece. Imagine now that your album has four standards on it. You are looking at spending about $700 in licensing fees alone, and most of that is for a tiny portion of the overall work. Even more frustrating is that your fee is based on the length of the entire work, which includes original improvisations over the chord changes (which are not copyrightable in the first place). Of course, you are welcome to try to negotiate with the estates of Cole Porter or George Gershwin or whomever...remember the transaction cost issue?

Those of you who know me know that I am the last person to argue against anyone's right to profit from his/her work. But copyright is a weird corner of the free market-- it's a government-granted protection that exists to promote creative productivity, and in the case of jazz it achieves the opposite result. Without trying to play the sympathy card here, there's just not that much of a market for (new) recorded jazz. The overwhelming majority of musicians self-produce their own albums with little hope of meeting their expenses even if they use their friends on the recording, find a cheap studio and get a decent production package from CD printing company. Throwing an additional $700 expense can actually sink the project. Sometimes musicians say "screw it, I'm judgment proof anyway," but others either don't make the recording or make significant changes to their music to avoid copyright problems...and creativity-- as well as the further development of the art form-- is stifled. Nobody wants to take this to court and rely on a judge (who has no understanding of jazz's relationship to standard songs) to rule in their favor (for that matter, the judge probably doesn't want to wade into a policy fight over an obscure area of already complicated law either). So everybody loses, including the copyright holders as 100% of nothing is still nothing...

I'm don't have a proposal on how to fix this. I think it would be best accomplished through a legislative change rather than a gradual chipping away through judicial opinions. On a practical level, I think that restructuring the licensing fees to better reflect the actual amount of time that the jazz musician spends using the copyrighted material in the recording would be a good start. I think that most musicians would be willing to go ahead and spend $100 to use standard melodies. But honestly, making this kind of change would require policymakers to understand that a jazz rendition of a standard tune is a distinct artistic work, as well as a more flexible view of the economics behind art on the fringes. So I don't know-- maybe it's time to get your local congressperson to sit in at a jam session :-)


  1. This is a great overview on a subject I would not normally delve into for fun. But you have made it interesting, and even comprehensible. My work sometimes touches on licensing and sync fees for the music we use in our TV & radio spots, so I know just enough to understand that what you are talking must be tremendously frustrating to all artists involved.

  2. Just read this entry and I'm going to check out the rest of your blogs shortly. Cool that you have written something about this subject, however, this is something that I never really worried about. My only output is 1 CD and it is all original compositions. If I ever wanted to record Stella By Starlight or any other standard, I would just write another melody and do that. Maybe just call it "Stella" and leave out the "By Starlight" on the title. I actually did do that. It was one of my first composition lessons: take a standard (I chose Stella), put it in a different key, and write a new melody for it. Putting it in a different key helped....it got me away from hearing that familiar melody.
    Anyway, in doing this, writing a new melody over existing changes, you as a composer have written a new tune which you can publish/copyright, etc.
    Nice article on Ralph Lalama. That's how I found this site.

  3. I completely enjoyed reading this. Perhaps you could stop me on this one: similar in spirit (if completely different in execution) are some of the classical concerti, which now and then let the featured musician "improvise" during the cadenza, showing off his or her skills while weaving together various themes from the work. Some of the more gifted pianists/violinists/cellists have copyrighted their version of the candenza as embedded within a larger work. Rimsky-Korsakov's piano concerto is a little-known example with an "improvised" cadenza by the musician; Brahms' violin concerto is much better known. I put improvised in quotes because in the case of a cadenza, it's usually carefully thought out and deliberate, so not really improvised at all, but the composer provided basic parameters under which the soloists takes great liberties.

    That said, do jazz musicians ever hone in on a specific improv routine which becomes so popular and desirable that they feel the need to pursue a copyright?