Does Copyright Neuter Social Movements?

"Thats how to always get something, just get together all at once and yell and yell and yell and yell and yell and yell and yell." -- Woody Guthrie (1)

Music as a unifying agent in social movements

Speaking with a common voice is vital to collective action. Art, especially music, is essential for delineating collective goals and for unifying people around a collective message. It is through song that a movement can objectify itself and its history "creating and establishing a sense of community."(2) This enables a social movement to present "the collective's view of events free from the censorship of the dominant culture."(3) Some organizers recognize that the value of a song is that movement members "find that they are not alone in the fight, but are part of one huge struggle where their voice plays a dominant role."(4) To others, the music itself is transformative, "It is a feeling of not being alone. You let people start singing together, the whole room becomes different . . . there was unification."(5) The attributes of communal support, togetherness and delineation give music its power creating, supporting and sustaining social movements.

You must know the tune to sing along

Components of music's ability to encourage collective action can be located in at least two places. First, people need to know the tune to sing along. Woody Guthrie, an American folk singer and political activist, would intentionally borrow tunes from traditional songs to make his music instantly familiar. The music to his song This Land is Your Land was taken from popular songs by the Carter Family, which had in turn been inspired by a Gospel song.(6) By adding verses to old songs Guthrie believed that result could transform the song's message, "I mix up old tunes . . . I use half of two tunes, one third of three tunes, one tenth of ten tunes. I always save back my notes and words left over and pound them out to poke my fun at the Democrats and the Republicans and these wall street ramblers."(7) For example, This Land is Your Land has two lesser known, more political verses that were written contemporaneously, but not always sung by Guthrie. A modern example is Guy Davis' new verse to the classic "Midnight Special."

Second, the ability to adapt music to new situations encourages participation. New melodies can allow the words to take on a different meaning. We Shall Overcome 's lyrics evolved from early 1900's gospel songs I Will Overcome and I Will Be All Right into We Will Overcome during tobacco labor strikes in the 1930's and 1940's.(8) The song was adapted once again in the 1960's as youth infused the civil rights movement. Pete Seeger recounts that "[i]n Tennessee in 1960 Guy taught [We Shall Overcome] to black students. They didn't hesitate an instant. They gave it the Motown Beat."(9)

How copyright can neuter social movements

Adaptation, both lyrically and musically, is a factor in the success of music to encourage collective action. Guthrie, Seeger, and others had a large public domain to draw upon to craft their songs, including the country and African-American traditions. However, there was a concern even at that time that copyright could deter the civil rights movement and be used in support of Jim Crow. In a 1952 issue of Sing Out! Irwin Silber wrote, "at a time when a growing Negro people's cultural movement is rediscovering its own heritage and proudly and beautifully re-creating it, [pirates] have set barriers in the path of this development by attempting to take this music out of the area of the 'public domain' and making it impossible for the Negro people to sing their own songs without getting (and paying for) permission from the white copyright owners."(10) The problem that Mr. Silber was afraid of in 1952 is more dire today because of the greatly expanded copyright term. Now, copyright controls the current generation's familiar songs so that these songs are impossible, absent permission, to adapt to a specific social movement.

At a minimum, copyright limits the ability of social movements to adapt familiar works to support their cause, which can neuter the message conveyed. According to recent supreme court language,(11) when free speech and copyright come into conflict the protections of fair use(12) and the idea expression dichotomy(13) provide protection for political First Amendment values. However, these copyright exceptions do not protect from the harm done to social movements.

Idea expression dichotomy

The idea expression dichotomy protects free speech expressive interests by limiting copyright protection to the expression, not the idea, of the protected work. However, in the context of social or political movements, this is not enough. For example, We Shall Overcome has a power and place in our history which is intricately tied to the song, making it impossible to use a different song, not currently under copyright, to express the same idea. Also, when copyright forces social movements to create a new tune, it is more difficult to motivate the collective to learn the tune and the words, and in turn, the message. Thus, in political speech geared at uniting people behind a social cause, it is not only the idea, but also the expression that should be protected by the First Amendment.

Fair use

Fair use is a defense to a copyright infringement. Its application balances multiple non-determinative factors, and its litigation is expensive and risky.(14) Even if political use of a particular song is found to be 'fair' after trial, copyright erects barriers to social movements not circumvented by fair use. The problem is that copyright can prevent art from becoming a part of culture that can be drawn upon in the future for political speech. For example, in 1996 the Girl Scouts of America were asked by ASCAP to pay royalties for, among other things, performing This Land Is Your Land at camp.(15) Similarly, when people attempt to teach a song or dance on youtube, they are censored. Enforcing copyright on groups of people singing and dancing together results in others not singing and dancing for fear of lawsuit. This lowers the chance that the expression will be known, taught, and adapted for social use in the future. Thus, the chilling effect on expression can occur before the 'fair' political use is contemplated.

Notes

1 : Woody Guthrie, Untitled, Woody Guthrie Archives, Notebooks Series 1, Item 22, Page 14 (Missing apostrophe in original).

2 , 8 : Ron Eyerman, Music in Movement: Cultural Politics and Old and New Social Movements, 25 Qualitative Sociology 443 447 2002.

3 : Id.

4 : Karla Duhar, Local 683 Sings in Jail , People's Songs, May 1947 at 2.

5 : Odetta, Odetta Remembers, BBC Four, February 6, 2009.

6 : Ed Cray, Ramblin' Man: The Life and Times of Woody Guthrie, 165 2002.

7 : Woody Guthrie, Folk Songs are on Their Way In, in Woody Guthrie Archives, Manuscripts Series 1, Box 7, Folder 7, Item 6.

9 : Refuse to stand silently by 227 (Elliot Wigginton ed., 1991).

10 : Irwin Silber, Song Pirates Fly Skull-and-Bones Over Tin Pan Alley, Sing Out!, June 1952 at 6.

11 : Eldred v. Ashcroft, 537 U.S. 186, 190 (2003) ("In addition, copyright law contains built-in First Amendment accommodations. First, 17 U.S.C. § 102(b), which makes only expression, not ideas, eligible for copyright protection, strikes a definitional balance between the First Amendment and copyright law by permitting free communication of facts while still protecting an author's expression. Second, the “fair use” defense codified at § 107 allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes." (internal citations omitted)).

12 : 17 U.S.C. § 107

13 : See, 17 U.S.C. § 102(b)

14 : See Lawrence Lessig, Free Culture 108-111 (2004) (Recounting a story of clear fair use that was removed from a movie due to fear of lawsuit)

15 : Thaai Walker, Girl Scouts Change Their Tunes. Licensing order restricts use of favorite songs , San Francisco Chronicle, August 23, 1996.

The comments on the first draft this paper are here.