Transcript Quotation in Music

“Quotation in Music”
paper delivered at
ESRC/AHRC Cultural Industries Seminar
Bournemouth, 16 September 2005
Friedemann Kawohl
[email protected] &
Martin Kretschmer
[email protected]
International framework
Berne Art. 9(2): “three-step-test” for possible exceptions to exclusive
reproduction right:
– special cases
– not conflicting with normal exploitation
– not unreasonably prejudicing the legitimate interest of the author
Berne Art. 10(1): mandatory permission
“to make quotations from a work which has already been lawfully made
available to the public, provided that their making is compatible with fair
practice, and their extent does not exceed that justified by the purpose”
Rome Art. 15: exceptions possible for
– private use, reporting current events, teaching and scientific research
TRIPS (Art. 13) & WIPO Internet Treaties (Art. 10) require that all
limitations to Berne works comply with “three-step-test”; TRIPS
Art. 14(6) permits only the Rome exceptions to sound recordings
UK: public interest (common law but affirmed in s. 171(3) & Ashdown); fair
dealing ss. 29-30; Germany: constitutional Kunstfreiheit; but statutory
Melodienschutz; US: fair use/first amendment
Practical effects (music)
Sound recordings: have to be licensed, if recognisable.
Thus tendency
– to hide sources
– to produce “sound alikes”
Works of music: arrangements are treated as “cover
versions“ (= 100% of publishing rights to “original”)
Appropriation art problematic; cultural icons unavailable
for critical comment
– 1966: Beatles Revolver album uses radio samples
– 1977: Beatles agreed to samples on The Residents
– Today: Permissions to use Beatles catalogue will always be
refused
Original and copy
before ~1750 (I)
No clear distinction: original and copy
Operas always “new“
Old libretti, but Music was “produced“ every
season anew.
Status of composer is similar to today‘s theatre
directors
Conductors reuse popular arias of the previous
seasons
Pasticcio: e.g. 1726 Florence production of Didone
abbandonata includes arias by Vivaldi, Orlandini
and Gasparini
Original and copy
before ~1750 (II)
Older music was copied in churches and
monasteries
Copyist adapted music in accordance with
regional traditions and the changing
zeitgeist
Authenticity and originality less important
than the function for services
Aesthetic change 1750-1850
• Observance of rules +
knowledge of classic works
• Music: an art without works
• No idea, no intrinsic
expression
• Compositions are done by
conductors and soloists
• Aural traditions of
interpretation
• Genius and originality
• “works of music“
• music contains ideas
(romanticism)
• Composing as a
profession
• Principle of werktreue
(authenticity)
Aesthetic change ~2000
• Genius + originality • “Anything goes“ + market
success
• “works of music“
• Performance counts and
sound recording, not score
• music contains
• Function: “expression“ of the
ideas (romanticism)
dancer + reminiscence (film)
• Composing as a
• Composing is only one task:
profession
cf. arranging, producing
• Principle of
• Appropriation art,
werktreue
arrangements ubiquitous
Transformative use:
traditional analysis
critical appropriation
Personality effects
plagiarism
arrangement
quotation
Labour appropriation
transcription
Transformative use:
the information society
Confusion about sources
plagiarism
Critical appropriation
quotation
arrangement
Competition with original
transcription
Personality effects?
Confusion about sources?
Transformative use:
examples
Zimmermann
Grey Album
Berio
Verve
The Beloved
Harry Potter
Appropriation of labour?
Competition with original?
ESRC/AHRC Cultural Industries Seminar:
The Effects of Intellectual Property on the Organisation
of Cultural Production
Centre for Intellectual Property Policy & Management
(www.cippm.org.uk)
Bournemouth University