Copyright, the work and phonographic orality in music

Toynbee, Jason (2006). Copyright, the work and phonographic orality in music. Social and Legal Studies, 15(1) pp. 77–99.



Shaped by a combination of romantic aesthetics and capitalist economics in the 19th century, the musical work was only enshrined in copyright law at the beginning of the 20th. However, even as the distinctiveness of the work was being legally inscribed, there emerged a new form of popular music making based on iteration. The recorded blues depended on continuity with other record-songs rather than the uniqueness of the individual work. Significantly, the phonographic orality at stake here was effectively unregulated, with 'plagiarism' being tolerated. The contrast is then with the hip hop genre. This has the same iterative mode as the blues, yet with the later style rights owners have become quite litigious, and now guard their symbolic property jealously. Focusing on the USA this article examines the differences between the two moments of blues and hip hop by analysing some key music copyright cases. It argues that despite stronger legal scrutiny of phonographic oral production in the contemporary period, this does not represent straightforward censorship in the way suggested by some commentators. Rather recent cases show the deep contradictions in copyright law between principles of uniqueness and tolerable continuity, and between the codification of physical sound and formal structure in music. These contradictions are inherent in the capitalist organization of music making, and are not susceptible to any quick policy fix.

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