Core Objectives for 2018-19: Critical Thinking and Communication Skills

Read the article attached, watch the accompanying video, and proceed to complete the essay based on the directives outlined below.

Article: Greene K. J. (2009) Papa’s Got a Brand New Bag. James Brown, Innovation, and Copyright Law. In King L., Schur R. (eds) African American Culture and Legal Discourse, 177–189. Palgrave Macmillan, New York. htps://doi.org/10.1057/9780230101722_11.

ESSAY

1. Title. Write the title of the article. Is the title catchy and descriptive of the paper’s subject matter?

1. Thesis. Describe the thesis outlined by the author.

K.J. Greene’s argues (Pg.178) that copyright law is deliberately basic and tenuous to foster creativity though not necessarily high originality: James Brown’s influence teaches us that copyright must be strong enough ________________________________ interests of artists, but it can not be so strong and inflexible that it stifles the next _________________________. The price of genius in copyright context may preclude innovators from capitalizing on allthe fruits of their creation in exchange for __________________. (178)

1. How does Greene introduces his subject? Academic authors generally announce their piece with a catchy thought or idea, a gripping event or piece of information, or even a thought-provoking question. Greene begins as follows:

The music world lost an unparallel artist with the death of James Brown, the self proclaimed ‘____________________________,’ in 2016. James Brown achieved the rare triumph of bringing a unique brand of ____________________________________ to the forefront of American culture—without sanitizing it for a white public. (177)

Brown was an extremely savvy businessman, being one of the first major black artists to understand ______________________________________ to his own recordings and ______________. When Brown’s label refused to support his vision of making recordings from his life performances, Brown financed the recording of his legendary _______________________, 1962 himself. The record became a huge commercial success, and Brown pioneered the market of ____________________________ recordings. (178)

1. Argument/Evidence. Describe the main arguments offered by the author.

• Weaknesses of current copyright law. Brown was the main innovator in the creation of the genre of ____________ music. (179) To note: emphasis on the bass and the first beat, screemish singing style, etc. Emblematic of Brown’s musical innovation was his song _______________________________________________ which was a number one hit on the rhythm and blues (R&B) charts for eight weeks in 1965. (180)

In discussing ____________________________________ Brown remarked: Take any record off your stack and put it on your box, even a James Brown record, and you won’t find one that sound like this one, it’s a brand new bag, just like I sang. (180)

Copyright does not protect performance style. (182) Innovators who are primarily performers face disadvantages under copyright law. In idioms such as ________________, for example, where the improvisational nature of the music elevates the importance of ________________ over that of an original written composition, the performance invariably is deemed a ‘style’ under copyright law. While James Brown was known as the hardest working man in show business, copyright law neither ________________________ like his nor ______________________________________ that is not ‘fixed’ in some tangible medium, such as a sound recording (CDs/DVDs, MP5s, other). (181)

• Strengths of current copyright law. Unlike patent law, copyright law is not ___________________________to foster ___________________ (182). Copyright law encourages _______________ which arguably leads to ________________________________ of cultural works, although these typically will be of lower quality than the original innovation. (181)

What is digital sound sampling and what did it mean to hip-hop as a recognized art form? (178)

Under copyright law’s de minimis doctrine, the use of _____________________________________ is not actionable as copyright infringement, but this disadvantages a truly unique sound such as James Brown scream. (185) Yet, while rap music sampling took much from James Brown, in turn it also ________________________________ and perpetuated it for generations to come. (186)

1. Conclusion. What is the author’s conclusion/recommendation?

Clearly an innovator such as James Brown would have benefited from patent-like protection. Patent law provides a ____________________________ –generally twenty years– but gives far more ____________________________ during the term of protection by _______________________________________________________________________________________________________________________________________________ an invention during the term without a license. Rewarding an individual artist with such broad protection would not necessarily result in net social gain. While such protection would benefit innovators in music, it would have the negative effect of ___________________________________, as already explored in the area of digital sampling. (183)

1. Citations. Do citations follow disciplinary convention (author last/first name, title of the paper, issue/volume, year, page numbers)?

1. Student Perspective

What interdisciplinary fields are involved in the article?

Are you satisfied with the evidence presented? Is James Brown sufficiently representative of issues at the intersection of ethnicity and intellectual property law? What other artists does Green cite as highly original? (181)

Do you agree or disagree with any of Green’s arguments? Why?

Do you believe copyright law could use some modifications? How so?

youtube link: https://youtu.be/QKb65mFb_tU

Papa’s Got a Brand New BagJames Brown, Innovation, and Copyright Law

K. J. Greene

The music world lost an unparalleled artist with the death of James Brown, the self-proclaimed “Godfather of Soul,” in 2006. James Brown achieved the rare musical triumph of “bringing a unique brand of southern black music to the fore- front of American culture—without sanitizing it for a white public.”1 Remarking on Brown’s musical legacy, Rolling Stone magazine opined that Brown’s contribu- tion to popular music and rock and roll exceeded that of the Beatles and Elvis combined.2 Much like ragtime genius Scott Joplin; jazz giants such as Jelly Roll Morton, Louis Armstrong, and Fats Waller; and blues legend Bessie Smith before him, Brown’s artistic innovations permeate popular music, making it difficult to say where Brown’s influence ends and that of other artists begins. “Soul Brother Number One,” as Brown also proclaimed himself, revolutionized soul music; pio- neered the genres of soul, funk, and disco music; and changed the shape of jazz as well. Highlighting the impact of his work, Princeton University hosted a two-day symposium shortly after Brown’s death entitled “Ain’t That a Groove: The Genius of James Brown.”

James Brown’s artistry extended well beyond music and influenced spheres of politics, culture, and law. Brown contributed tirelessly to the civil rights move- ment of the 1960s, often canceling “shows to perform benefit concerts for black political organizations like the Southern Christian Leadership Conference.”3 Dur- ing the height of the civil rights movement, Brown’s 1968 song “Say It Loud, I’m Black and I’m Proud” fueled demands for racial and economic equality and was a catalyst for the “black is beautiful” movement. Brown, it was said, was “the one man in America who can stop a race riot in its tracks and send the people home to watch television.”4

Brown was also fiercely entrepreneurial and independent, so much so that he supported conservative candidates such as Richard Nixon for president. Brown’s own personal issues—including drug use, tax problems, and run-ins with the criminal justice system—were legend, as often seems to go with genius.5 Further,

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as has often been true in the black musical community, Brown’s “unbridled machismo [resulted in] black women . . . [being] simply attached as a postscript to a male-directed message.”6 He sang as much when he declared “It’s a Man’s, Man’s World” in 1966. Ironically, the song was at least cowritten by a woman, as later litigation over the song’s ownership would indicate.7

Brown was an extremely savvy businessman, being one of the first major black artists “to understand the value of owning the rights to his own recordings and publishing.”8 When Brown’s record label refused to support his vision of mak- ing recordings from his live performances, Brown financed the recording of his legendary Live at the Apollo, 1962 himself.9 The record became a huge commercial success, and Brown pioneered the market for live performance recordings. Brown recognized that the huge amount of money he generated in the early 1960s— grossing $450,000 on touring alone in 1963—“represented no more than a mere pittance compared to what was his due.”10 Brown refused to record for a full year after a contract dispute with his label at the time, King Records, forcing the label to grant “almost every concession [Brown] had been seeking: his own publishing, a vastly improved royalty rate, a minimum of 25,000 singles and comparable LPs in ‘free goods’ . . . and expanded . . . artistic control.”11

Given his impact both on culture and on the legal system, focusing on the work of James Brown from a legal and cultural perspective is germane to applying standards of originality in copyright law to digital sound sampling controversies. From an intellectual property (IP) legal perspective, Brown’s music provides two valuable insights on copyright protection. First, it reaffirms the insight that copy- right law provides poor protection to truly innovative artists like Louis Armstrong, whose jazz innovations define modern jazz, and Scott Joplin, who pioneered the genre of ragtime. As a great innovator, Brown’s signature sound defines modern funk and forms the underlying basis for hip-hop. When an artist is so innovative that his or her idiom becomes a “style,” the idea-expression dichotomy of copy- right law effectively allows mere imitators to usurp the true innovator. The idea- expression dichotomy provides that copyright law should not protect raw ideas and their analogs but, rather, only their expression. However, innovators such as Armstrong, Joplin, and, now, Brown, have historically found their genius reduced to an idea—so that playing “in the style” of Louis Armstrong or Jimi Hendrix is not copyright infringement but merely imitation, which copyright law permits. Indeed, we can likely identify leading innovators by looking at who is being exten- sively imitated, if not who is outright copied. The work of true innovators, such as Scott Joplin, serves to “unleash an even greater flood of rivals and imitators.”12

The second insight arising from James Brown’s artistry is that an overly protective copyright law can stifle artistic innovation. Digital sound sampling—the borrowing— (or theft, depending on one’s perspective) of small snippets from sound recordings of other artists’ music—was essential to the development of hip-hop, now recognized as an art form in itself. It might well be true that rap music could not have existed with- out James Brown’s polyrhythmic innovations. James Brown’s influence teaches us that copyright must be strong enough to protect the compensatory interests of artists, but it can not be so strong and inflexible that it stifles the next great innovator. The price of genius in the copyright context may preclude innovators from capitalizing on all the fruits of their creation in exchange for a broader public domain.

PAPA’S GOT A BRAND NEW BAG 179Black Music, James Brown, and Innovation

Booker T. Washington famously posited that “no race that has anything to contrib- ute to the markets of the world is long in any way ostracized.”13 African American artists have been at the forefront of musical innovation in the United States, and the music they have created has tremendous global economic wealth. There is great concern today among legal scholars that intellectual property, including copyright, is providing a stifling overprotection to copyright owners at the expense of a broad public domain. IP law has the potential to “silence and deaden our future musical culture.”14 However, copyright law has historically underprotected works by black music artists. There is a disconnect between the structure of copyright law, which protects original works of authorship fixed in a tangible form, and black cultural production arising from African oral traditions.

My scholarship has analyzed how the legal structure of copyright law and the social dynamic of race deeply influenced and affected black cultural production in music.15 Scholars have recognized the impact of copyright law on cultural produc- tion—styles of complex jazz such as bebop, for example, “represented a conscious step toward African and African American music that could not be commercial- ized by whites.”16 However, until recently, intellectual property law focused almost wholly on doctrine and legal theories such as law and economics but not on the intersection of the dynamics of race (or gender) in the IP context. James Brown, as a black innovator, reflects many of these currents and crosscurrents in the legal and cultural vortex around cultural production.

Music historians agree that the most pivotal names in the new “soul” music that emerged in the 1950s were Ray Charles and James Brown.17 Recognizing the genius of James Brown, the great jazzman Quincy Jones famously proclaimed that James Brown “is our Elvis . . . our Beatles.”18 It has been said similarly that “by any measure of real musical greatness—endurance, originality, versatility, breath of influence,” James Brown “towers” over the greatest performers of his time, includ- ing Elvis, the Beatles, Stevie Wonder, and the Rolling Stones.19

The revolutionary influence of Brown’s musical innovation spanned a broad spectrum of music from major soul stars such as Aretha Franklin to jazz genius Miles Davis.20 Brown almost single-handedly staved off the decline of indigenous black American music in the face of the “British invasion” of the 1960s.21 Brown did all this early in his career despite criticism from both sides of the color line. Prominent white critics chastised Brown as “the greatest demagogue in the history of Negro entertainment . . . his whole vast success . . . is based less on talent and skills than on the unique faculty for sizing up the black public and making himself the embodiment of its desires.”22 Brown was similarly branded by some voices in the black community as an “Uncle Tom” because of his support of mainstream politicians, his processed hair, and his willingness to perform for troops during the Vietnam war.23

Brown was the main innovator in the creation of the genre of “funk” music.24When Brown partnered with legendary bassist Bootsy Collins in 1970, music his- torians noted that “funk was never to sound the same again.”25 Brown reinvented “funk” music from its origins and as counterpoint to “cool” strands in jazz. Art- ists such as Sly and the Family Stone, Kool and the Gang, and George Clinton

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“recycled” Brown’s funk innovations.26 Brown also profoundly influenced rap music, a musical form that might be considered indivisible from Brown’s innova- tions. Music analysts note that “Brown has been called the “Godfather of Soul,” but in many ways he is also the “Godfather of Rap.”27

Brown’s creativity, like that of many blues and jazz artists and the rappers that followed them, poses challenges to many aspects of copyright doctrine. Innovators in creative works are arguably harmed by the standards for copyrightability, which require original works of authorship. Originality in copyright law means little more than producing something with a modicum of creativity that is not precisely copied from a previous work. The U.S. Supreme Court has set the standard for originality so low that almost any work more creative than the arrangement of names and numbers in a phone book likely qualifies for copyright protection.28

Emblematic of Brown’s musical innovation was his song “Papa’s Got a Brand New Bag,” which was a number one hit on the rhythm and blues (R&B) charts for eight weeks, fueling the soundtrack of the turbulent year of 1965.29 Although Brown was a peerless self-promoter, there was more reality than hyperbole when, in discussing “Papa’s Got a Brand New Bag,” he remarked that “I’m actually fight- ing the future . . . take any record off your stack and put it on your box, even a James Brown record, and you won’t find on that sounds like this one, it’s a brand new bag, just like I sang.”30 Music historians agree, noting that the song “truly changed the face of music.”31

As a primordial innovator, Brown can serve as a kind of metaphor for black musical production, which has always been at the forefront of American music. The founding fathers established copyright law as a means for increasing cultural productivity by giving economic incentives for the creation of artistic works.32Analysts note that “in large part, the early music industry [in the United States] was built largely on the creativity and innovation of black composers and art- ists.”33 One would think, then, that black artists would have been among the prime beneficiaries of copyright law given their astounding contributions to the world of music. However the actual history of black cultural production and the law is one of inequality rooted in racial animosity.34 The emergence of Brown represents a shift in trends of appropriation because he was able to capture much of the value of his innovation, although clearly not all, as explored below.

The music of James Brown built upon the blues tradition of slaves that, most scholars believe, originated in the Mississippi delta in the 1890s.35 Ironically, Brown claimed to have little affection for traditional blues, notwithstanding that “the two hits with which Brown announced himself the king of funky soul and modernity in 1965, ‘Papa’s Got a Brand New Bag’ and ‘I Got You (I Feel Good),’ were both cast in the twelve-bar blues form.” 36 The history of African American musical production, as exemplified by Brown, presents challenges to copyright doctrine, which assumes individual rather than communal creation. Early blues giants such as Charlie Patton routinely created in communal fashion “with ideas and songs swapped and guitar patterns exchanged” among blues musicians.37

Blues scholars note that “originality in blues . . . is not a question of sitting down and making up songs out of thin air . . . [but rather] consists of combin- ing phrases, lines and verses with compatible emotional resonances into associa- tional clusters that the reflect the singer’s own experiences, feelings and moods

and those of his listeners.”38 When these structural issues are grafted upon a system of social discrimination, arising from what Thurgood Marshall termed systematic “lawlessness” attendant to being black in America, the whole “incentive” theory of copyright is turned on its head.39 Given the pervasive appropriation of property from African Americans lasting until recent decades, it is not surprising that blacks would fare poorly under an intellectual property regime. For early black artists, “copyright law failed miserably to protect either economic rights that adhere to a copyright creator . . . [or] their personal interests—known as moral rights—in artistic creation.”40 Scholars such as Keith Aoki have also similarly documented how black inventors fared poorly under the regime of patent law.41

We can perhaps extract two benefits from the low standard of copyright origi- nality. First, it encourages imitation and arguably leads to a more prolific produc- tion of cultural works, although these typically will be of lower quality than the original innovation. I say “typically” because, when we look at Brown’s music, we see it spawns disco, which is generally considered a less potent genre of music than Brown’s. But it also spawned funksters, such as George Clinton, who, although derivative, are every bit as inventive as Brown. Secondly, the low standard of cre- ativity set by copyright law allows judges to “avoid making value judgments about qualities of works that they may be unable to comprehend.”42

On the down side, a minimal standard of originality elevates imitation over innovation. The idea-expression dichotomy, which does not confer copyrights in either “styles” or genre, along with the ability of artists to make “cover” records of any previously released sound recording has the effect of shortchanging innova- tors under copyright law. Thus Scott Joplin, the great innovator of ragtime, created “the most popular ‘pop’ style of music of the first two decades [of the twentieth century] [which was] utilized profitably by any number of white composers [such as Irving Berlin].”43 Joplin, like so many early blues and jazz artists, never came anywhere near to realizing the financial fruits of ragtime music, which was literally the soundtrack of America for many decades. Indeed, Joplin, the “king of ragtime,” was “totally forgotten by the general public” until the 1970s blockbuster film “The Sting” repopularized his signature tune, “The Entertainer.”44

Innovators who are primarily performers, rather than composers, also face dis- advantage under copyright law. In idioms such as jazz and blues, the improvisa- tional nature of the music often elevates the importance of performance over that of an original composition.45 Their performance invariably is deemed a “style” under copyright law, which through “its emphasis on originality . . . tends to place the author or creator at the center of property ownership.”46 While James Brown was known as the “hardest working man in show business” based on his bravura concert performances, copyright law neither rewards hard work like his nor pro- tects pure performance that is not “fixed” in some tangible medium, such as a sound recording.

Furthermore, in the sound recording context, only the composer of a song, not the person who sings on the record, is entitled to performance royalties. So a singer such as Ella Fitzgerald, who clearly was among the greatest of jazz inno- vators in voice but not known as a composer of music, would have no ability to stop another singer from copying her style of vocalization. Further, copyright law does not typically protect improvisation, which is arguably at the heart of

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innovation—unless simultaneously “fixed” in some form such as a recording or written notation. Of course, the whole point of improvisation is not to fix one’s artistry in writing. Hence, as my earlier work demonstrates, jazz faces a structural disadvantage in connection with the structure of copyright law.47

Copyright does not protect performance style—hence artists from Prince to Michael Jackson have copied Brown’s distinctive performance style. Performance, like improvisation, is not considered “fixed’ for purposes of copyright law, and thus many performances rooted in a black cultural idiom have been readily appro- priated by the dominant culture, including the distinctive screams of Little Rich- ard (see the Beatles on “She Loves You, Yeah, Yeah”), dances such as the “cakewalk,” which created fortunes early in the twentieth century, and “boogie-woogie” styles of piano playing pioneered by master stylists from Jelly Roll Morton to James P. Johnson and Fats Waller. Perhaps overly broad protection of performances too could squash creativity. But time and time again, it seems to be innovative per- formers in the black tradition that find themselves unprotected under copyright law structures. Many, if not most, of the great innovators in blues and jazz died either in obscurity or in poverty despite copyright’s promise to offer “incentives” for artistic creation. The list would include Scott Joplin, the “King of Ragtime”; Robert Johnson, widely considered to be the greatest bluesman ever; Jelly Roll Morton, who claimed to have invented jazz; Fats Waller, the most underappreci- ated artist and composer in all of jazz in my mind; and Mamie Smith, whose 1920 recording of “Crazy Blues” was the first mass-selling blues record in history and launched the modern recording industry.48

Copyright law, unlike patent law, is not designed to foster innovation. Patent law sets strict standards of novelty and nonobviousness.49 The minimal-originality standard has some social benefit, but one can question why the burden of genius in innovation has fallen so heavily on black artists. My work has illustrated that the law can be “race neutral” in its wording and still have an adverse effect on groups historically left out of the promise of liberty and justice for all. For example, copy- right’s compulsory sound recording doctrine, which has been in effect since 1909, provides that once a composer releases a sound recording to the public, any other artist can rerecord that song provided it is a faithful rerecording of the original.

This provision is known as the “cover recording” section of the Copyright Act. IP scholars, such as Lawrence Lessig, recognize that the compulsory-license provi- sion is “another kind of piracy” in that it gives “recording artists a weaker right than it otherwise gives creative authors.”50 However, Lessig concludes that by “lim- iting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit.”51 What this ahistorical analysis ignores is the social dynamic underlying “cover” records, which from Elvis Presley’s rerecording of Big Mama Thornton’s “Hound Dog” to Pat Boone’s redoing of Little Richard’s “Tutti Frutti” fostered the devaluation of works in a black musical idiom.

James Brown, unlike many of the blues and jazz innovators before him, will not go down in obscurity. Brown received enormous financial remuneration during his lifetime that will continue long after his death, given the extensive postmortem copyright term of seventy years. The lesson here is that as social discrimination lessened through the 1950s and 1960s, black artists were able to assert control over IP and contract rights that escaped artists such as Jelly Roll Morton, Bessie Smith,

and Bo Diddley before them. During his life, Brown “cashed in” on the present value of his copyrights through the device of “Bowie Bonds”—securities based on the future income his copyrights would generate.52

Clearly, an innovator such as James Brown would have benefited from patentlike protection. Patent law provides a shorter term of protection—twenty years—but gives far more extensive protection during the term of protection by prohibiting anyone else from making, using, selling, or importing an invention during the term without a license. Rewarding individual artists with such broad protection would not necessarily result in net social gain. While such protection would ben- efit innovators in music, it would have the negative effect of reducing creativity, as explored below in the area of digital sound sampling.

James Brown and Digital Sound Sampling

The genre of disco was in essence an “outgrowth of both electronic experimenta- tion and James’s Brown’s rhythmic dictum.” It is highly ironic then that the disco movement is thought to have led to the wane of James Brown’s musical influence by the mid 1970s.53 Brown released a 1979 album entitled “The Original Disco Man” that sold poorly, “an ironic comment, perhaps, on his inability to profit from the success of an idiom he helped create.”54 However, the advent of rap/hip-hop music in the late 1970s resurrected Brown’s music. The emergence of rap, like the rise of rock and roll before it, reflected social and cultural currents of race. When rock and roll emerged, advocates of segregation attempted to suppress the music, as they abhorred the notion of white youths dancing to the music of black artists. Similarly, some analysts contend that rap music became a cultural battleground “upon which an intolerant and powerful majority—most of whom happened to be white—attempted to enforce its values against a disenfranchised and largely powerless minority—most of whom happened to be black.”55

In the early evolution of rap, artists digitally sampled James Brown’s complex rhythms and distinctive vocalizations more than any other artist; such sampling was second only to the sampling of music by Brown’s protégé, funk master George Clinton. The dense wall of sound or sonic war of some brilliant rap artists, such as Public Enemy, would have been impossible without unregulated digital sam- pling. There is some irony, then, in early sampling lawsuits, such as the one where a songwriter named Ingrid Chavez sued Madonna for copyright infringement over the song “Justify My Love.” The rap group Public Enemy has threatened to sue Madonna because “Justify My Love” sampled the group’s song “Security of the First World.” Ironically, the inspiration for Public Enemy’s song was actually a James Brown composition. “Many in the music industry think Public Enemy’s threats are ludicrous because they sampled the ‘Security’ beat from a 1969 James Brown tune called “Funky Drummer.”56

Digital sound sampling is a process of “recycling sound fragments previously recorded by other musicians for use in new recordings.”57 Sampling began in Jamaica in the 1960s and 1970s. In the 1980s, “MCs” and rappers in the South Bronx, such as DJ Red Alert and Kool Herc, perfected sampling into an art form, thus creating a genre that revolutionized the recording industry.58 Until the early 1990s, when copyright infringement lawsuits curbed the practice, digital

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sampling and hip-hop flourished, and Brown’s voice and drum beats powered many classic rap songs from Robb Bass and DJ E-Z Rock’s “It Takes Two” to KRS-One’s “South Bronx.” Brown himself harshly condemned the practice of digital sampling, stating unequivocally that “anything they take off my record is mine.”59 Although the modern recording industry was based in large part on white artists appropriating the work of black blues artists, the first sampling lawsuits involved white composers suing black rappers and hardened the notion that hip-hop artists engage in theft outside the mainstream of musical “borrow- ings” in other contexts. In 1991, Judge Duffy in the Southern District of New York took the extraordinary step of recommending criminal prosecution of the rapper Biz Markie, who had sampled the maudlin 1970s Gilbert O’Sullivan song “Alone Again, Naturally.”60

In the first published opinion on sampling, Judge Duffy concluded that digi- tal sound sampling constitutes copyright infringement. However, the landmark opinion contains no legal analysis of sampling—only the Biblical admonition that “Though shalt not steal.” The federal judge was clearly outraged by the practice of sampling, but he did not acknowledge the irony of the history of rampant appro- priation of the works of black artists by white artists. For example, Scott Joplin found his composition from the finale of his opera “Treemonisha” shamefully appropriated by composer Irving Berlin, who earned “an astonishing thirty thou- sand dollars in royalties” in 1910 for his “Alexander’s Ragtime Band.”61 Another early sampling case, involving Roy Orbison’s “Pretty Woman,” made it all the way to the Supreme Court on the issue of fair use.62 The controversial rap group Two Live Crew requested permission to use a sample from “Pretty Woman.” Orbison’s publishing company, Acuff-Rose, refused to grant a license, and the group released the recording anyway with “shocking lyrics” designed to demonstrate the “bland- ness of the Orbison original.”63 Ultimately, the Supreme Court ruling permitted Two Live Crew to sample Orbison’s song because of fair use’s protection of paro- dies. As a result of these and other sampling lawsuits, Brown was subsequently able to force royalty payments and license agreements on record companies that had facilitated the sampling of his music. Brown released his own inimitably brilliant album of rap songs entitled, fittingly, “I’m Real” in 1989.

The music industry currently requires that every sample be licensed and aggres- sively pursues unauthorized sampling. A federal court decision in recent years set forth the bright-line rule that every digital sound sample, no matter how brief, requires a license.64 There is irony here, too, in relation to black cultural produc- tion. Analysts postulate that in certain subcultures, such as rap music, sampling has “specific traditions of reference and respect, in which the recognizability of a sample operates to provide credit and simultaneously establish the sampling art- ist’s membership in a community.”65 In this sense, the wide sampling of James Brown’s music reflected a reverence for it.

The music of James Brown is so distinctive that even a tiny snippet of his voice is recognizable. An example of this is the early 1990s rap song “It Takes Two” by rappers Rob Base and DJ E-Z Rock. Looped throughout the hit song is a James Brown scream of less than two seconds. Although brief, the “scream” makes the song uniquely distinctive. Under copyright law’s de minimis doctrine, the use of a very small piece of a copyrighted work is typically not actionable as copyright

infringement,66 but this rule disadvantages a truly unique sound such as a James Brown scream.

The Bridgeport decision, however, suggests that requiring hip-hop deejays to pay for the samples may not benefit the musicians who created and performed the music. The case involved the music of funk master George Clinton, a genius himself and a true innovator even if his sound is built upon Brown’s. However, George Clinton was divested of many of his copyrights by the plaintiff, Bridgeport Music. Bridgeport is a shadowy entity that some analysts contend exists simply to purchase copyrighted works and find entities to sue for copyright infringe- ment.67 So we have a company, Bridgeport Music, that creates nothing itself but takes a formal ownership position acting as an author and squelching artistic use by others, which seems unconscionable. As a result, the decision favors the rights holder—who might have acted dubiously when contracting with the musician— over the music’s creator.

In another sampling case, a federal court validated the rights of the rap group the Beastie Boys to use a flute solo by innovative jazz flautist James Newton.68The Beastie Boys obtained a license from the sound recording owner, as usual, the record label, for the recording of Newton’s composition “Choir” but not a license from the composer himself. The court held that the rappers used such a small por- tion of the song that the use was de minimis, or legally insignificant, and that, in any event, Newton was really claiming infringement of his distinctive and unique style of playing the flute. Copyright law does not protect artistic performance or style, and so Newton lost his copyright infringement suit. The case underscores the weak protection copyright accords to performance, and perhaps this leads one to wonder—why does it seem that black artists more often than not end up on the losing end of these cases?

Copyright law’s strict rules against digital sound sampling result in the artistic stifling of “mash-up” albums. The most famous mash-up is probably DJ Danger Mouse’s Grey Album, which combined the music of the Beatles’ White Album with the lyrics of Jay-Z’s Black Album. Because DJ Danger Mouse (a.k.a. Brian Burton) did not get permissions to use any of the recordings, he was, in theory, liable for mas- sive copyright infringement damages. The record labels did not, in fact, sue DJ Dan- ger Mouse. Instead, they hailed the recording as a breakthrough success of a massive Internet hit without marketing and signed him to a record deal—after he prom- ised not to use unauthorized materials again. The sampling issue brings into relief the stark choices between rewarding artists, such as Brown, and insuring there is a broad public domain from which other artists can draw. Part of the conundrum is, I think, the aggressive enforcement of copyright by distribution entities such as record labels, film studios, and television networks. This overly aggressive stance toward the use of copyrighted material is probably best exemplified by the Recording Industry Association of America (RIAA), which, until recent months, aggressively sued so- called digital downloaders who share music on the Internet.69

The RIAA, the lobbying arm of the record industry, says it has engaged in mass litigation against internet downloaders to “protect artists,” but a cynical public is well aware that protecting artists is the lowest priority of big entertain- ment conglomerates—in part because of the dark history of appropriation of the work and undercompensation of black artists. If big companies can sue for any

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and every use of their copyrighted materials, why not artists? Taking the position that all uses of IP must be paid for would increase the revenues of artists, such as Brown, whose work is much in demand, but the ultimate price for creativity may be too high. While rap music sampling took much from James Brown, it resur- rected his artistry and perpetuated it for generations to come. Although a techno song by L.A. Style declared years ago that “James Brown is Dead,” the innovator par excellence will live on forever through his music.

Notes

1. Greig, Icons of Black Music,19.
2. Christgau, “The Genius,” 46.
3. Maycock, “James Brown: Soul Survivor.”
4. Goldman, “Does He Teach us Black the Meaning of ‘Black is Beautiful?’” 39.
5. This piece will not focus on the foibles, which are well documented elsewhere. See, forexample, Moser and Crawford, Rock Stars Do the Dumbest Things.
6. George, The Death of Rhythm and Blues, 104.
7. Newsome v Brown.
8. Sullivan, The Hardest Working Man, 119.
9. Egan, Defining Moments in Music, 286.
10. Guralnick, Sweet Soul Music, 238.
11. Ibid., 242.
12. Gammond, Scott Joplin and the Ragtime Era, 87.
13. Boxill, Blacks and Social Justice, 20.
14. Demers, Steal This Music, 146.
15. See Greene, “Copyright, Culture and Black Music: A Legacy of Unequal Protection.”
16. Calmore, “Critical Race Theory, Archie Shepp, and Fire Music,” 317.
17. Haskins, One Nation Under a Groove, 38–39.
18. See Carr, A Century of Jazz, 188.
19. DeCurtis, Henke, and George-Warren, Rolling Stone Album Guide, 85.
20. Ibid.
21. See Gillett, The Sound of the City, 233–34.
22. Goldman, “Does He Teach us Black the Meaning of ‘Black is Beautiful?’” 40.
23. Brown, I Feel Good, 156–57.
24. Gates and West, The African-American Century, 284.
25. Carr, A Century of Jazz, 190.
26. Keyes, Rap Music and Street Consciousness, 40.
27. Haskins, One Nation Under a Groove, 41.
28. Feist Publications, Inc. v. Rural Telephone Service Co (1991).
29. Whitburn, The Billboard Book of Top 40 Hits, 87–88.
30. Sullivan, The Hardest Working Man, 102.
31. Shapiro, Turn the Beat Around, 95.
32. The U.S. Constitution provided the basis for both copyright and patent protection inArticle I, Section 8.
33. See Greene, “‘Copynorms,’ Black Cultural Production, and the Debate Over African-American Reparations,” 1188.
34. Black artists were segregated into “race record” ghettoes, and performance rights orga-nizations, such as ASCAP, excluded black composers. See Reich, Jelly’s Blues, 145.
35. Oakley, The Devil’s Music, 46.

1. Wald, Escaping the Delta, 218.
2. Oakley, The Devil’s Music, 58.
3. Palmer, Deep Blues, 69.
4. Regents of the University of California v. Bakke (1977).
5. See Greene, “What the Treatment of African American Artists Can Teach about Copy-right Law,” 383.
6. See Aoki, “Distributive and Syncretic Motives,” 722.
7. VerSteeg, “Originality and Creativity in Copyright Law,” 21.
8. George, The Death of Rhythm and Blues, 8.
9. Waldo, This Is Ragtime, 3.
10. “Jazz Has Got Copyright Law and that Ain’t Good,” 1959.
11. Katyal, “Performance, Property, and the Slashing of Gender in Fan Fiction,” 477–78.
12. See Greene, “Copyright, Culture, and Black Music.”
13. Wolfe and Lornell, The Life and Legend of Leadbelly, 81.
14. Miller, “Nonobviousness,” 2.
15. Lessig, Free Culture, 55, 57.
16. Ibid., 58.
17. Gates and West, The African-American Century, 22.
18. Shapiro, Turn the Beat Around, 111.
19. Palmer, “James Brown,” 147.
20. Stanley, Rap: The Lyrics, v.
21. Givens, “Justify My Copyright.”
22. See, for example, Bergman, “Into the Grey,” 623.
23. See Johnstone, “Underground Appeal,” 399–400. The early history of rap is set forthby rapper KRS-One in the 1986 song “South Bronx,” which features heavy sampling ofJames Brown’s music and voice.
24. See Brown, “‘They Don’t Make Music the Way They Used To,’” 1957.
25. Grand Upright Music Ltd. v. Warner Bros. Records, Inc. (1991). See also Arewa, “From J.C. Bach to Hip-Hop,” 581.
26. See Greene, “Copyright, Culture and Black Music.”
27. Campbell v. Acuff-Rose Music, Inc. (1994).
28. Barrett, Intellectual Property, 632–33.
29. Bridgeport Music, Inc. v. Dimension Films (2005).
30. Tushnet, “Payment in Credit,” 159.
31. See Cromer, “Harry Potter and the Three-Second Crime,” 266.
32. Wu, “Jay-Z Versus the Sample Troll.”
33. Newton v. Diamond (2003).
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