The Australian Federal Court ruling in favour of Larrikin Records has raised again the issue of ‘Intellectual Property Rights’. For overseas readers, the case concerns the borrowing or adaptation (or ‘sampling’ to use a hip-hop term) of an old riff, written in 1930, from a song about a kookaburra, adapted by the Australian band, Men at Work, in their international hit, ‘Down Under’. The author of the kookaburra song died in 1988 and the song was purchased by Larrikin Records after her death. Men at Work had a hit with ‘Down Under’ in 1981/82.
There’s a lot of discussion happening about this ruling, and public opinion is generally favourable to Men at Work and against the Court ruling.
People understand that music – and culture in general – does not develop in isolation. As Helen Razer put it in today’s (February 6th) ‘Age’ newspaper: “The history and the advancement of all artistic endeavour rests on borrowing; on using and changing leitmotifs”. I’d add that there’s more to it than that (for example, there are the revolutionary leaps, the breaking of the rules of musicality and rejection of tradition as found in Thelonious Monk’s dissonant harmonies), but it’s a valid observation in terms of the Court ruling.
The point that none of the commentators has made, as far as I’m aware, is the question of a social system based on private property. The singular focus is on how to improve the law, make it more in keeping with the times (when new technologies have made ‘sampling’ commonplace).
The law should certainly be reformed – but what does this case say about private ownership of culture, of music, and what does it suggest about the alternative, social ownership as the basis for production?
A common argument for capitalist property relations is that they favour individual creativity, that culture is experimental and flourishes under them. Yet how true is this when a riff, in music, can be owned privately (by a company – one, incidentally, that had its origins in the ‘left’ nationalist folk scene)?
Where music has developed, progressed, under capitalism it has tended to be in spite of the system of private ownership. The development of rock music, and all the 1960s pop rock bands (for example), owes more to the fact that the shuffle of Bo Diddley and the riffs of Chuck Berry were never patented. Had they been, the countless great bands, including the Beatles and Rolling Stones, would have been up on ‘theft’ and crushed from the get-go.
Despite capitalism, ‘everyone’ owned Bo Diddley’s shuffle, as surely as everyone owned the basic twelve-bar-three-chord blues progression that emerged from the mists of time. (Okay, I’m being melodramatic about the mists of time – it’s just that I love that old blues stuff).
Eric Burdon once remarked of Jimi Hendrix that “He took blues music from the Mississippi Delta way up to the planet Venus”. This could only happen because the structure and style of Mississippi Delta blues was not owned, patented, by some big capitalist outfit.
The proof that social ownership is more conducive to creativty and musical development and innovation is thus found within capitalism itself; in its antithesis, which exists within it, waiting to break free. And to go places way beyond Venus.
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