From J.C. Bach to Hip Hop: Musical Borrowing, Copyright, and Cultural Context
Olufunmilayo B. Arewa, From J.C. Bach to Hip Hop: Musical Borrowing, Copyright, and Cultural Context, 84 N.C. L. Rev. 547 (2006).
Tremendous controversy exists today about legal treatment of hip hop music. Having just reached its thirtieth birthday, hip hop is now the second most popular type of music in the United States and an important musical and cultural force globally. The advent of hip hop has raised serious copyright law concerns. At the core of such concerns is the issue of sampling, or the use of pieces of existing recorded music within hip hop works, which has been deemed in some instances to constitute copyright infringement. Professor Arewa discusses issues that arise in the application of copyright to music generally as well as historical and cultural aspects of the hip hop debate. In discussions of music, particularly in the legal field, hip hop is considered within a tradition that values independent and autonomous authorship of musical works and that consequently reflects pervasive romantic author discourse. Within such discussions, the manner of music production of great masters of the European classical tradition may be seen as a model of musical production against which musical forms such as hip hop are often at least implicitly measured. The image of the classical tradition embedded in such discussions is, however, inaccurate and distorted. The classical music tradition is an invented tradition that was largely constructed in the nineteenth century and that no longer operates as an active tradition to which new works are being added in any quantity. Actual practice within the classical tradition varies significantly from the idealized imagery of this tradition evident in legal discourse about music. The image of the classical tradition is important because through characterizations of this tradition, hip hop musical production is distinguished from other methods of making music in a number of ways through the use of a series of implicit and explicit dichotomies. In looking at this classical tradition historically, however, it is clear that much continuity underlies the production of music generally, particularly in relation to musical borrowing, which was common in the European classical tradition in actuality as opposed to its constructed history. The varied uses of musical borrowing suggest that more careful consideration needs to be given to the extent to which copying and borrowing have been and can be a source of innovation within music and by extension elsewhere. Recognition of such borrowing needs to be incorporated into existing copyright frameworks as a basis for the development of commercial practices and liability rule based legal structures for treatment of music, including hip hop, which uses existing works in its creation.
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