Does Copyright Deter 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 deters 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 puts a burden on social organizers to limit their musical expression to newly created or very old songs. 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.

Justin- I want to start by saying this an interesting and important idea, one that we don’t think enough about. But noting that—that we don’t think much about how copyright deters social movement, in part by withholding the power of song and voice--- also leads me to what I think is perhaps your argument’s most difficult problem. You note that Woody Guthrie and Pete Seeger were both able to draw from the “large public domain” available to them; using this public domain, this shared cultural history, they were able to speak to the people in their own voice. It’s a powerful argument, and I recognize the importance of being able to utilize one’s own historical, cultural patrimony to shape the future. After all, what other tools but the past do we have in order to shape the future?

However, I think it’s also important to recognize that the problems that we have with the public domain and copyright control of social movement are, to some extent, self-fulfilling prophesies. That is to say that because we have been denied access for so long to the public domain access becomes less important, at least in terms of creating or empowering social movement. Woody and Pete were drawing on a cultural heritage that was familiar to people. Part of your argument rests on the assumption that social movements are empowered by art’s ability to use elements from the cultural past— to speak to us in a familiar, yet different voice. But the last works to enter the public domain were freed in 1923. It’s hard to argue that a contemporary artist using a work from 1920 today would have the same resonance that, say, African-American slave songs had in 1930 to someone who’s grandparent or parent was a slave. I recognize this doesn’t defeat the core of your argument (in fact, in some sense it supports it), but what I’m suggesting is that maybe this is a dead letter. Maybe this is a concern whose time came and went when the public domain (and its power to make social movement), by virtue of being almost a century removed from us now, lost its ability to truly resonate. Now that this is so, what does copyright take from social movement today, other than the ability to sing songs which are distant and unknowable?

Your argument might be stronger if you focus not on the fact of copyright itself, but on its length and extensions. It seems to me that it is not copyright necessarily that deters social movement, but the distance between the public domain and the presence. After all, current creators who want to allow their works to be used for social movements, both now and in the future, have the ability through Creative Commons licensing (among other mechanisms), to do so. The real problem, I think, lies not in disallowing access to present creation, but in making sure what of our cultural past is accessible to us is too remote to be of use.

-- DanaDelger - 09 Mar 2009

Well, does copyright deter social movements? My own unsupported suspicion is that copyright might be one of the least clever ways to put down a social movement--a fair use smackdown and terrible publicity are almost guaranteed. John McCain? might beg to differ as to certain web ads, but those were cases more of reproduction than of adaptation.

As to the chilling effects of the public performance right: did none of us learn "Happy Birthday" as a child? Some of us even learned the Macarena (over which, as the article points out, ASCAP could not have and never did threaten the Girl Scouts). The "Happy Birthday" problem is more a threat to singing waitstaff than to chances that songs will be known or taught in a non-profit or "social" context. 17 USC 110(4).

-- DanielHarris - 10 Mar 2009

Daniel, thanks for pointing out my factual inaccuracy. I clearly did not read the article well. I had found this, did a bit more research and seized on the visual of a song and dance. That was sloppy. However, I did get to link to a video of the Macarena, which was a plus.

On to your other two points. First, your McCain example is exactly the type of speech that I attempted to show concern with in the idea expression dichotomy section. If you check out the old and new versions of his attack on the media's love of Obamba at this link, you might agree that the value added to the political message by the recognizable tune is substantial. I argued that in certain political speech, expression is as important as idea -- McCain is no exception.

I think your second point finds what I think could be the weakest part of my argument: do the educational, not for profit and other fair use provisions do enough to allow people to come together to learn music and dance and build culture? Maybe they do, and maybe they don't. Remember, ASCAP still demanded payment from Girl Scouts to sing This Land Is Your Land, despite my bungling of the facts. The threat of lawsuit can chill speech. But I do think you make a good point.

Regardless of whether or not we agree on that point, your comment made made me think of a way forward that perhaps more people can get behind. Do the educational, not for profit and other fair use provisions do enough to allow people to come together to learn music and dance? Maybe they just used to. I do believe that part of the problem is a social one: people are not used to making their own music. However, perhaps it is just that we make our music (and share it with each other) in a different way. Channeling Lessig a little bit, maybe the chilling effect is not located on the girls singing This Land Is Your Land at camp (though, don't you think ASCAP demanding payment over other songs could have made them, and other less politically connected solo camps, think twice?), but on these people instead. Maybe we share and “socialize” differently than we did before. Maybe the answer to shoring up the argument is to take out the (inaccurate) 1996 reference to the Macarena and summer camp and replace it with a 2007 reference to Soulja Boy and youtube. Thoughts?

-- JustinColannino - 10 Mar 2009

A great example of your point is the difficulty that independent film makers experience in clearing the rights to music used in their films - especially for documentaries. This issue was given publicity when EMI asked for $10,000 to include a cell phone ringtone in the documentary Mad Hot Ballroom (see http://www.nytimes.com/2005/10/16/movies/16rams.html?scp=1&sq=hidden%20cost&st=cse). Documentaries' role as a force for social change is impeded by the often exorbitant cost of including any sort of non-public domain music in the movie, especially when the music is integral to the story being told by the documentary.

-- ElizabethDoisy - 11 Mar 2009

Daniel- I understand your point, and I don't actually disagree, at least as to the specific situation you seem to be envisioning. But it seems to me your critique applies only to the most obvious use of copyright to stop social movement--- a mustachioed villian swooping in, withdrawing his precious copyrighted work from use by a social movement in order to slow it down or stop it. The John McCain? reference is exactly this sort of "obvious" problem--- that is, a song or other copyrighted work is already being used by a "social movement," and withdrawing might conceivably have some effect on the efficacy of that movement. I agree with you that, in this instance, removing the ability to use a copyrighted work is a pretty ham-handed way of stopping the machine.

But I don't think the obvious is really Justin's point. I think (and correct me if I've misread you, Justin) the more important part of this argument rests on the invisible loss--- the movements that never happen or those that fail because of what they are unable to take from the culture around them.

I've noted to Justin offline that the weakest part of his argument is that he hasn't quite proved his point that music, particularly familiar music, which draws on lyrical or musical themes recognizable to a population, can be an agent for social change. If you spend your Friday nights like I sometimes do, hanging out at Woody Guthrie sing-a-longs (or, if, like Justin, your wife is the archivist at the Woody Guthrie Foundation's archives), that point is evident; knowing about black slave songs, the folk movement and other rebellions and revolutions based around music is what enables one to accept the second part of the argument. But if you don't know, then it's easy, I think, to miss the subtler point, which is that part of the success of early social and musical social movements is owed to the less restrictive copyright, particularly in terms of length (see my comment above). They were able to access the familiar, to speak to people in a language they understood, and their movements were able to succeed thereby. In a world where that doesn't happen because of copyright, there is an inhibition on social movements, both nascent and existent, an inhibition which doesn't depend on a few nefarious copyright owners clumsily trying to put down change.

-- DanaDelger - 11 Mar 2009

Admittedly, I was being a little devilish in my advocacy -- arguing for ASCAP is not my normal role in life, and I'm more comfortable with Guthrie's copyright notices. I was just objecting to the implication that copyright law as it stands can be an impediment to protesters singing songs in "meatspace"--this is an overreach and weakens the other valuable points to be made here. I agree that an emphasis on the changing nature of social movements and how they fall out of the exceptions set out in the Act (including the not-quite-as-cutting-edge but still relevant issue of documentaries) would be a good way to shore this up.

I blame being tired for not thinking of the Soulja Boy teaching example: the youtubing of the public square obviously does threaten teaching by video recording. This isn't new--you might get a takedown for teaching the Macarena on public access cable, if anyone lawyerly were to watch--but more people have the opportunity to infringe (if not under fair use) with Youtube. This implicates a few things: the common problem of the Act's failure to adapt to digital media and the need for "reproduction" of a digital work to experience it, the possible net-video-enhanced transformation of social communication from synchronous to asynchronous communication, AND "those infernal machines" Lessig likes to remind us about Sousa's predicting would lead to the destruction of music.

Dana, I completely agree re: the shrinking of the public domain via term consolidation and extension. I am a bit wary, though, of the chilling effect arguments as applied to the copyright law itself: I don't want to blame the copyright statute (with the possible exception of the potentially ridiculous statutory damages) for overzealous attorneys' going beyond it. It seems to me that the GS should fall under 110(4)(B) -- if we treat the demand for licensing as a notice of disapproval under that section, I am tempted to say that the press will sort things out. Less-connected camps have the advantage of being small enough to be less noticeable and not really worth bugging--and even they can generate a local outcry sufficient to enrage a representative. I doubt (but welcome anecdotes) that any social move-rs are scrapping their plans to fight for justice out of fear of copyright, or even consulting a lawyer (much less receiving counsel) about the copyright consequences of appropriating popular culture.

-- DanielHarris - 11 Mar 2009