Steal This Music: How Intellectual Property Law Affects Musical

Creativity
Horning, Susan Schmidt.

Enterprise & Society, Volume 8, Number 1, March 2007, pp. 217-219 (Review)

Published by Oxford University Press

For additional information about this article

http://muse.jhu.edu/journals/ens/summary/v008/8.1horning.html

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 Reviews 217

specialized in wedding dresses). Howard uses letters to bridal

services, company newsletters, which regularly featured stories of
weddings between employees, and newspaper accounts to provide
insight into what the consumers were actually doing. While Howard
includes a small number of interviews, the lack of substantive first
person accounts means her central thesis, that this industry’s knack
for creating traditions was always tempered by consumers’ own
acceptance of the new, is not as fully developed as it might be. For
example, women’s diaries and letters might offer detailed accounts of
the agonies of choosing—not a husband, but a dress, colors, flower
arrangements, and cake styles. This minor quibble does not weaken
her success on examining a commercial world whose specialty is to
commodify intimacy itself.

Helen Sheumaker
Miami University
doi:10.1093/es/khm021
Advance Access publication February 2, 2007

Joanna Demers. Steal This Music: How Intellectual Property Law Affects Musical
Creativity. Athens, Ga. and London: The University of Georgia Press, 2006. xiv
+ 178 pp. ISBN 0-8203-2777-8, $19.95 (paper).

If current intellectual property laws had been in place in the 1940s,

could Ella Fitzgerald have been sued for scatting a few bars of
Gershwin in her rendition of an Arlen tune? Perhaps not, but were she
recording today, her record company legal department might caution
against it, or warn her of the cost. Seems ridiculous? Perhaps not
after reading Joanna Demers’s fascinating exploration of the impact of
technology and copyright law on musical creativity.
Musicians have always borrowed and quoted freely from works
that inspire them; the practice of ‘‘transformative appropriation’’
through allusion and arrangement is part of the creative process.
However, technologies that make duplication easy and affordable
have expanded the ‘‘gray zone’’ between musical allusion and
outright plagiarism. Digital samplers, synthesizers, turntables, and
home studio software (the electric guitars and drumsets of the hip-
hop world—the tools of those musical forms collectively known as
‘‘sampladelia’’) have given musicians and nonmusicians alike the
freedom to create sonic collages by cutting, pasting, and modifying
the recordings of others. This freedom is being curtailed, however,
by corporate ‘‘content providers’’ (record companies, film companies,
218 ENTERPRISE & SOCIETY

and publishers), who control copyrights and trademarks and can

afford to take the musicians to court to make them pay for using
protected works, or cease and desist. This has the chilling effect of
forcing those who sample to make their choices based on economic
and legal, rather than strictly aesthetic considerations. Demers argues
that the society’s access to cultural resources and musical creativity
will be increasingly limited, as long as the intellectual property legal
juggernaut rolls on unchecked.
In four chapters, Demers traces the evolution of copyright law
from its original meaning of ‘‘the right to copy’’ printed documents,
including sheet music, to sound recording on any medium (vinyl,
tape, CD), and the classification of music as intellectual property.
She then explores the musical arrangements and allusion in the
wake of compulsory licensing, and also how performance style and
voice became protectable expressions. Her third chapter shows how
duplication has been used to create sonic collages, from Pierre
Schaeffer’s musique concrète to pop novelty songs like Dickie
Goodman’s ‘‘Flying Saucer,’’ and more recently, the ‘‘mash-up,’’ a
form of remix that superimposes the lyrical content of one recording
over the musical background of another.
Readers old enough to remember Dickie Goodman will recognize
the not-so-subtle allusion of Abbie Hoffman’s yippie classic, Steal
This Book (1971). However, while Demers does not offer a primer
on anarchy, her final chapter explores the rise of legal alternatives
(‘‘sample packs,’’ precleared sample compilations), as well as an
underground movement of sampladelia artists who have found
innovative and subversive ways to make music ‘‘in the shadow of
the law.’’ (111). This unintended consequence of excessive litigation,
Demers notes, has led to even more musical forms that challenge
definitions of borrowing and infringement. By devising other means
of transforming the sounds that they appropriate, these artists dodge
legal action, as long as they remain relatively obscure. According
to one source, legal threat is now so pervasive that major record
labels require artists to keep detailed logs of their mixing software’s
procedures to verify that sounds were not simply duplicated, but
transformed.
Demers draws on and extends the work of other scholars of
copyright and cultural production, such as Lawrence Lessig, Siva
Vaidhyanathan, Kembrew McLeod, and Rosemary Coombe, who along
with a growing number of intellectual property activists, support the
idea of a Creative Commons in which ideas are freely shared. Steal
This Music is the first of these works to focus on music and copyright
within a broadly interdisciplinary framework. Demers, an assistant
 Reviews 219

professor of music history and literature as well as a consultant on

music copyright, draws an impressive range of sources, including
legal cases and copyright legislation, musicology, ethnomusicology,
music history, cultural theory and criticism, popular culture studies,
and a broad spectrum of musical genres from classical to pop, rock,
and sampladelia. She also cites a limited number of ‘‘discussions’’
with DJs and industry insiders, websites, and Internet discussion
participants, offering perspectives that published sources could not
offer.
Although the notes and index are skeletal by academic standards
and disappointing for a study, this rich in detail, Steal This Music,
should be required for reading in any course dealing with the law,
media, and cultural production. Her clear and concise writing, along
with the music at the center of her study, will appeal to students
and should spark lively debate on a number of topics that includes
the nature of music and creativity, plagiarism, and the interplay of
business, technology, and society. A number of subjects only touched
upon in this book could be the basis for further studies, in particular,
the explosion of a cottage industry of precleared samples and software
technologies for music-making, and the effect on music education and
literacy posed by the increasing reliance on technology as a musical
instrument.

Susan Schmidt Horning

St. John’s University
doi:10.1093/es/khm010
Advance Access publication February 2, 2007