Art of the Steal Part One: Music

Saint Columba – Painter: J.R. Skelton (1865-1927)

This article was originally posted on June 7th, 2021 at Yoair.com (for an internship) and prior to the advent of ChatGPT or DALL-E. Yoair continues to republish it at different times and dates, which has proven vexing for this article (and the one following it) especially.

For various reasons that will probably form the start of a new section, I don’t endorse the use of stable diffusion AI or “dumb” AI in creative work and strongly object to the use of this article to justify it. This is not a pro-AI blog.

The first copyright battle (as far as we know) was waged not by lawyers, but swords. In the 6th century, Irish Abbot Saint Columba copied a religious text belonging to missionary Saint Finnian. Saint Columba produced this volume by hand, as was necessary in a pre-printing press culture. Saint Finnias claimed that the handmade copy belonged to the owner of the original.

King Diarmait mac Cerbaill, High King of Ireland at the time, ruled in Saint Finnias’ favor, saying, “To every cow belongs its calf, therefore to every book belongs its copy.” Saint Columba took issue with the ruling and convinced a clan to rebel against King Diarmait. Thus began the Battle of Cúl Dreimhne, the Battle of the Book. Records place the battle’s casualties at 3,000, but older sources tend to be lax about tallying up bodies.

Modernity replaced bloodshed with injunctions and lawsuits, but copyright remains a grave matter. People fire off cease-and-desist notices, not bullets. In the case of academia, student plagiarists lose their scholastic futures.

Amidst the business of making money, the artistic motivations of plagiarism tend to get lost. Discussion revolves around the act of plagiarism and not the plagiarist. This series of articles attempts to address that imbalance somewhat. It explores different fields and disciplines to tease out the nature of the plagiarist, their conditions and considerations throughout the ages. It is by no means comprehensive — such an article would quickly become a novel. Instead, it will bring into question the essence of plagiarism, its merits and demerits.

Artist: Jean Jacques Outhwaite (1825-1889)

Arguably, music steals from itself more often than any other art form. Covers of beloved hits dot the soundscape of the industry and often outperform the originals. Sometimes audiences receive these imitations warmly. For instance, Johnny Cash’s rendition of the Nine Inch Nails song “Hurt” was so beloved that the original artist said, “That song isn’t mine anymore.”

Pat Boone – Photographer: Unknown – Site: covermesongs.com

The reasons behind a cover’s surge in popularity aren’t always sanguine. For instance, take Pat Boone:

In 1956, Little Richard and Co. recorded “Long Tall Sally.” It was a tongue twister with blazingly fast lyrics (for the time) and an up-beat tempo. Its difficulty was intentional. Patrick Charles Eugene Boone, a devout Christian who would later become a champion of the birther movement against Barack Obama, regularly topped charts with whitewashed versions of songs penned by black artists. His version of “Tutti Frutti” actually eclipsed Little Richard’s original, placing at #12 on the pop charts (Richard’s was #17). In “Sally,” Richard hoped to stymie Boone by creating a song which would prove too difficult to imitate. Boone nevertheless produced his own version of “Sally” which would go on to hit #18 on the charts.

Unfortunately, Boone wasn’t alone in this practice. Black singer Gloria Jones recorded two versions of her single “Tainted Love,” but a 1980’s cover by the band Soft Cell proved more successful. She was never given credit.

Whether or not the results are rip-offs or homages, the fact remains that music flirts with the margins of plagiarism, and it usually elicits applause. The origins of this have their roots in the nature of the audience, in globalization, and in the medium of music itself.

Photographer: Prashanths – Site: Wikipedia Commons

The oldest music can be found, of course, in oral histories, but that lies outside the scope of this discussion. Oral history, like the bard Homer’s account of the Trojan Wars, does not bother with money. It seeks to preserve information vital to cultural heritage.

Plagiarism, on the other hand, owes its severity to denied sales and loss of face. Free ideas don’t carry a fear of theft. As a concept, plagiarism relies on transactions.

With that said, the oldest form of transactional musicmaking is busking. The busker, the street musician, offers their services in hopes of a donation to their upkeep. Playing music and putting out your hat for loose change exists in any city and age.

As an example, Prague is rich with buskers. Violinists rush from one end of the city to another for the umpteenth recital of Mozart’s Don Giovanni overture (the opera famously premiered there). Hurdy gurdy men dot the streets and almost every plaza contains an instrument.

Buskers didn’t pass beneath the notice of prestigious musicians. They were not white noise. In 1827, Franz Schubert penned a song cycle called “Winterreise,” or “Winter Journey.” The lyrics (translated by poet Jeremy Sams) of the passage “The Hurdy Gurdy Man,” read as follows:

By the open road a hurdy-gurdy man
With his frozen fingers plays as best he can
Dogs are barking round him
People come and go
Still he plays his music
Shivering in the snow
Still he plays his music
Shivering in the snow

Though he’s old and broken
Though his feet are bare
No one seems to notice
No one seems to care
Everyone ignores
The saucer at his feet
Just another madman
Standing in the street
Just another madman
Standing in the street

I must journey onwards
Will you come along?
Play your broken music
To my broken song.

In an era free of record players and phones, buskers constituted the sum of the everyman’s musical experience. No doubt they conveyed a share of local folk tunes as well. Tunes like “La Folia,” a musical phrase over a thousand years old, or the Norwegian folk dances which would move Edvard Grieg to compose his own masterworks. Before symphonies, operas, and concerti, there was the mazurka, the gigue, and the lullaby.

Yet buskers do not enjoy the protections of high-status artists like Grieg. The aforementioned “La Folia” saw dozens of reworkings, variations, and adaptations, Arcangelo Corelli’s being the most famous. Vivaldi made one. Bach made one. Even Rachmaninov made one, although he mistakenly credited the original to Corelli. None of them felt beholden to the atmosphere or players responsible for their own creations. Corelli didn’t thank Giuseppe of Naples for his inspiration. If Rachmaninov had known of “La Folia’s” age, he could have even stripped Corelli’s dedication off his sheet music without reproach .

One can’t be entirely certain of buskers’ role in those pieces, but that speaks to the lack of consideration for street artists as influences. They are beneath acknowledgment, so it’s no wonder that they don’t appear in musical history.

Argonautica – Painter: Charles de La Fosse (1636-1716)

That raises the question, therefore, of why no one considers that copyright infringement. One factor is power: non-busker musicians command more respect and legal clout. No one wants to sacrifice their golden goose (or their golden albums, as the case may be).

Another, less sinister explanation is a difference in scope, scale, and craftsmanship. “Twinkle, Twinkle Little Star” requires little skill or study to play on the piano or compose. Mozart’s twelve variations on that theme, on the other hand, do.

But who judges whether or not something has been improved or reworked to the point that it’s new or wholly original? “Ice Ice Baby” uses the beats and bass of Queen’s “Under Pressure.” To some, the differences amount to much. Others aren’t so convinced.

This is an example of a paradox typically called “The Ship of Theseus.” This paradox has many names, but the central question is about identity. Does a thing’s identity depend on its parts? If you take the famous ship Argo and replace, say, the rudder or the captain, you would probably still consider it to be the same ship. What if, over the course of many years, you gradually replace the mast, the planks, the hull, everything that could possibly be replaced. You have demolished all of the parts which added up to a ship called the Argo, so does the Argo even exist?

Bach – Gottlob Haussmann (1695-1774)

Some of the most august names in western musical history were plagiarists. Sometimes these figures plagiarize under socially acceptable terms (as in self-plagiarism). Sometimes they didn’t. In any case, they illustrate how the practice shifts.

Professor Scott Foglesong of the San Francisco Conservatory of Music elaborates on one musical giant in his blog: Handel. The celebrated composer of Messiah and Water Music was a prolific plagiarist. He borrowed from himself, of course — the Messiah chorus “For Unto Us a Child Is Born” springs from his own “No, Di Voi Non Vo’ Fidarmi” — but plundered the work of his contemporaries. According to Jonathan Keates’ Messiah: The Composition and Afterlife of Handel’s Masterpiece, librettist Charles Jennens would often catch Handel in the act (though he scrupulously never brought it to the composer’s attention). Nevertheless, Handel faced little recrimination (if any) in his own time.

He sparked fury from 19th century scholars, but when the dust settled, his name was canonized, not disgraced. Foglesong writes, “It’s all under the bridge now.”

Handel was far from the only perpetrator. Bach properly credited Vivaldi for one organ arrangement of a concerto, but he wrote a fugue on a theme of Italian composer Marcello’s. He published the arrangement and profited financially from it.

At the same time, there’s no doubt that the fugues are very different in character, and that plagiarism can change with context.

Credit: Unknown

The global market transformed the face of music in ways that complicate matters further. Globalism and recording devices changed the audience’s relationship to copyright. Like buskers, musicians living pre-record performed in moments trapped in time and space. For simpler and less refined crowds not versed in sheet music, Handel’s appropriations would have passed undetected. An unexpected benefit in live performances lies in short memories and localized crowds — a Bach listener in Leipzig might have little cause to hear Vivaldi and vice-versa.

Modernity offers no such protections. What does one do when each tune reaches not hundreds of people, but thousands? What happens when Bach and Vivaldi fans overlap? In short, what happens when the most harmless theft costs a sale?

To a certain extent, that explains the ferocity of copyright law. To a different extent, copyright is merely an expression of the power imbalance between musical positions: local musicians can take from buskers; global musicians can take from local musicians (who often don’t have paid lawyers and legal defense). Again, no one protects (at least not widely) the busker or argues that musicians should cite them. No one copyrights ancestral folk tunes and “public domain” exists as a fairly accessible concept. The nitty-gritty details of copyright law deserve their own article. For now, let’s leave it in terms of musicianship.

If copyright would have kneecapped Handel, what’s to say that it hasn’t done the same to others? On some level, creativity owes everything to something else, be it a chord or an entire set of lyrics. To thank Handel for his contributions and disdain the means by which he contributed seems hypocritical.

Moreover, what about multimedia? YouTube videos can’t feature any licensed music without permission, no matter how ornamental it is, but that rule flaunts common sense and is not strictly enforced. Should every game commentator, political analyst, and thought piece strip background music from its content despite the music’s minimal contribution? How long does music have to play to count as a transgression? If the video is for educational purposes and not monetized, does that diminish the impact of intellectual theft?

These dilemmas may have clear-cut legal answers, but they don’t have matching creative ones. From a common sense standpoint, how is a videotape of a busker different from a record? What sets “Long Tall Sally” above “La Folia” in terms of public ownership? Should buskers unionize?

At what point do the principles of private ownership give way to the demands of the craft? How fervently do musicians need to sort out their influences? If everything falls under personal property, what can be safely taught or traded?

Fountain – Photographer: Alfred Stieglitz – Artist: Marcel Duchamp (1887-1968)

“What is art?” consumes many existential discussions about artists. Does a sculpture become art when it leaves the sculptor’s hands or does it become art from the first mark, from the inception of intent?

That’s worth asking. Also worth asking, however, is “At what point does art become ours?” Handel bestowed his considerable talents on what proved to be otherwise forgettable. The annals of history literally forgot the originals. That copying doesn’t compare to Pat Boone’s, who weaponized segregation to further his own career and tepid imagination. Handel’s work might qualify as found art — he distilled ambient music into a more potent, larger composition. Or maybe it’s just a rip-off.

Perhaps these data points amount to nothing more than casualties of art’s incompatibility with money, yet it could prompt a reassessment of where we can safely find art. A magnum opus might rest within another, smaller object, just waiting to be released.

Next up: plagiarism in fiction, fanfiction of the past, fanfiction of the present, and everything in between. You can find that article here.