Singing Other Peoples' Songs: Indigenous songs are often considered. "public domain"-yet a mainstream musician can turn them into "individual property"
WHEN MY WIFE, JUDY, AND I were doing field research among the Suy Indians in Mato Grosso, Brazil, we all sang together a lot. Between 1970 and 1982 the Suy learned many of our songs - just as they had learned the songs of more than 10 "foreign" cultures before we appeared - and we sang theirs. They modified the words of "Michael Row the Boat Ashore" to "Wai kum kraw...," which means "Something's coming that stinks." We probably did equal injustice to some of their texts, but they said that we sang pretty well, for non-Suy .
I recorded their music on the best reel-to-reel tape recorder I could take to the field. In the 1980s cassette tape recorders were everywhere, and the Suy taped our singing just as we had previously recorded theirs. I traded blank tapes for their recordings of their ceremonies and collected more in one month than I could have in eight months of my own recording. For Judy and me, singing was one of the few things we could do that the Suy appreciated as at all skillful and enjoyable; for them, learning our music was the continuation of a traditional pattern of learning new musical forms from monsters and captives that began in mythical times. And it was fun for all of us.
When the Suy suggested I make a commercial recording of their music, however, we had other concerns. First, we needed to decide what other people should not be permitted to hear - and therefore what should not go on the recording. Second, we had to try to protect the Suy 's community rights as artists and composers. Addressing the first concern was easy: they decided what should be excluded and I made selections and sequences from the rest that would make sense to a non-Indian, Brazilian audience. I reviewed the entire project with them before publication. The second concern, however, was not so easy to settle. On the back of the LP Música Indigena: A Arte Vocal Dos Suy ("Indian Music: The Vocal Art of the Suy ") (Tacape 007, Sao Joao del Rei, 1982), we published the following in block capital letters:
This recording was made with the knowledge and approval of the Suy . The selections are artistic productions of this society. Royalties will be forwarded to the community, and must be paid. The unauthorized use of these recordings is prohibited not only by law, but by the moral force against the exploitation of these artists. (free translation)
It didn't work. Although I arranged for generous royalties to be forwarded to the Suy , we did not control the further use of the recordings. The Suy chief was staying in our house in Rio de Janeiro when we heard, to our immense surprise, a Suy song played behind an advertisement for Rio educational television. I looked at him with considerable concern, and he grinned and said, "It's beautiful, everyone is hearing our music." I was relieved, and also glad that all the Suy had agreed on what went on the recording. They would not have been amused by certain songs receiving a similarly wide hearing. The next time I heard Suy music on television was not so benign, however. But they didn't see the program; I didn't make a copy of it; I had no money for an entertainment lawyer (neither did the record company); and we didn't pursue it. Had we explored the matter, we would have found little help in existing copy-right law.
A NEW AWARENESS
Ten years later, I directing Smithsonian/Folkways Records at the Smithsonian Institution in Washington, DC. I produce dozens of recordings each year, many of them of non-Western music, and I control the use-rights of more than 2,000 recordings. I am concerned about musical rights from at least five slightly different perspectives; as a musician, as a researcher, as a coproducer with an indigenous society of a commercial cultural product, as a record company director who has to match costs to income within the current structure of the entertainment industry, and as a member of a copyright committee of the International Council for Traditional Music (ICTM), which is preparing a document that gives a cross-cultural perspective on music ownership to counteract some of the international law being considered in this area. These different perspectives can lead to very different positions on music ownership. Each of these perspectives represents the view of a large number of individuals.
As a musician, I think we need to recognize that most musicians take musical ideas and transform them. Because almost every performance is a creative event, I worry about the effects of existing laws that inhibit live performances and restrict the exchange of musical ideas. There is a distinct possibility that more laws will further inhibit live, creative performances.
As a researcher, I am concerned about the perception that "someone is getting rich on our music" and the effect it has had on music research. It can be very difficult to study a community's music today because individuals and groups, sometimes with justification, are suspicious of strangers carrying tape recorders. Because graduate students are insufficiently aware of the ethical issues their recordings may raise, they do not obtain the kinds of information and permissions in the field that will enable their recordings to be used afterward. In fact, very little money is made on most research-based "ethnographic" recordings; they generally sell relatively few copies and usually have to be subsidized to be published at all. Inflated expectations based on news items about the multilmillion-dollar contracts of Michael and Janet Jackson, however, can make even legitimate royalties seem like a deceit.
As a coproducer of a recording with the Suy Indians, I wonder at the freedom with which Brazilian television has used this group's recordings as background music - a policy that would be rigorously policed if the music were performed by, say, the Beatles, but which cannot be policed when it is "only" performed by the best living Suy musicians.
As the director of a small record company, I am sensitive to these ethical issues; but I also have to produce recordings that can compete in price with other recordings in a given market. Small record companies go under or get absorbed by larger ones all the time; there isn't much room for financial error. This means that I cannot allocate much more money to artists and songwriters than other companies do if I want to make enough from one recording to pay for the production of the next one. It means I do not have the time or staff to individually research the rights to every song on every recording; instead, I rely on the opinions of the artist, compiler, or publishing companies. It means that whatever laws are put into effect must be reasonably simple for me to understand and they need to have concrete mechanisms to make it easy for me to obey them.
As a member of the International Council for Traditional Music's committee on musical copyright, I hope that the United States and Europe will not impose, without some modification, their individualized, popular-music-fueled concepts of music ownership on the rest of the world through international conventions. We need to examine the shortcomings of existing systems, especially with respect to the rights of communities and vernacular artists to benefit from any commercial exploitation of their arts.
Ideal laws will not protect musicians or ensure compliance. What we need is a new awareness of the issues of musical ownership and the ethics of intercultural music use - something akin to the ecological awareness that encourages individuals to change their attitudes and provides concrete means through which they can change their daily practices. Recycling, for example, works best where people are not only convinced it is a good idea but are also provided with convenient ways to put it into action. The same kind of awareness and convenience needs to be created for intellectual and cultural property.
WHO OWNS - AND WHO CONTROLS - A SONG?
The music business today is a large, complex, transnational, and highly profitable industry. Its procedures tend to serve the interests of popular music, established professional musicians, and its own structure. Policies benefit artists most when they are represented by aggressive lawyers; little is given away that is not demanded. A recent book, Hit Men: Power Brokers and Fast Money Inside the Music Business (Dannen 1990), presents a fairly grim but not unrealistic picture of the industry.
In a capitalist societies, attempts to extend the definition and market approach applied to tangible property in all spheres of life are a logical extension of the economic system. Here we should expect music to become "property." The incredibly complex US copyright law is a logical extension of a number of features of the entire society. Yet capitalist societies are not the only ones where musical rights can be clearly defined. In many indigenous societies individuals, social groups, and communities may also have clearly defined rights and obligations to music and oratory. Among the Suy , for example, a song belongs not to its "composer" but to the person who sings it aloud for the first time. Entire ceremonies are controlled by one or the other moiety, which must be consulted and freely give permission to the other moiety to begin a performance.
US music copyright is based on concepts of individual creation and ownership that ignore community rights to music. "Traditional" folk songs, music controlled by a moiety, and most music from indigenous societies are considered to be "in the public domain" because they are older compositions. No songwriters' royalties are usually paid on these songs. The current music copyright system only protects recent compositions; a song may be copyrighted for the life of the composer plus 50 years. The publishing company that owns the Beatles' "Yesterday," for example, receives nearly six cents for every recording sold that anyone else performs the song on, plus money from radio play, plus money every time it is used in films, videos, and on Muzak tapes. The Suy , by contrast, receive nothing for any of those uses of the "Agachi Ngere."
The real issue is not the music industry in itself, but the economic and cultural exploitation of one group by another group or individual. A publishing company probably doesn't care whether the Suy sing "Something's coming that stinks" to a copy-righted melody on the banks of the Suy Missu River in Mato Grosso. But under existing copyright law, there is nothing illegal about taking a piece of "traditional" music, modifying it slightly, performing it, and copyrighting it. When music is owned by indigenous people, it is seen as "public domain." If it becomes popular in its "mainstream" form, though, it suddenly becomes "individual property." The song brings a steady income to the person who individualized it, not to the people from whose culture it is derived. many Jamaicans feel that Harry Belafonte "robbed" them by copy-righting and earning revenue from arrangements of traditional songs. In spite of some efforts to the contrary, there certainly have been injustices (see Wallis and Malm 1984).
Even when there are good intentions, royalties are not always easy to distribute. Sometimes the problems are internal, sometimes they are related to international affairs, and sometimes they are complicated by unorthodox claims of authorship. I was unable, for example, to set up a direct account for Suy royalties because they had no formal legal identity and therefore no income tax number; as a result I have had to bear the expense of income tax on all royalties I forwarded to them. The lack of US ties to Cuba made normal publishing payments to the original author of "Guantanamera" impossible for some time. "Wimoweh" (also Sleeps Tonight") was copyrighted not by the composer but by a South African record company (a fairly common state of affairs in music publishing). My uncle, Pete Seeger, went to a considerable effort to locate the composer's widow in order to pass to her, rather than to the South African record company that copyrighted the song, some of the proceeds from her late husband's hit - something he felt was important, but was not required by law. In these cases, the US copyright law functioned and the publishing companies collected the money; but it was difficult to make payments to the appropriate people even when desired. These kinds of problems tremendously complicate rectifying the ethical problems faced by all parts of the music industry; with respect to the music of indigenous peoples, these problems are multiplied hundred-fold.
CHANGING THE LAWS
Artists' sensitivity to these issues is increasing. They are giving much more attention to crediting traditional artists, even though the laws themselves have not changed. While I know of no payments to the Juruna Indians by the Brazilian popular singer Caetano Veloso, who used a Juruna flute melody on one of his albums in the 1970s, Milton Nascimento worked together with the Union of Indian Nations and the National Rubber Tappers Council, and his album Txai is part of a campaign to support the Alliance of Peoples of the Forest. The copyright law has also been used for charitable purposes. Realizing that the song "We Shall Overcome" would probably be claimed by some "arranger," members of the civil rights movement decided to copyright the song and have the proceeds go to the Highlander Folk School, which had been the center of civil rights organizing. Because the song was a slight rewrite from an old hymn, "I Will Overcome," no individual felt slighted and the considerable income has benefited the school.
In most countries there is no legal recourse for traditional societies upset about the use of their music. A few countries have special laws protecting all music. The United States is among the most reluctant to consider changes in the copyright law which would give broad rights to intellectual property for "traditional" rather than individually created culture. Currently, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) and several other international agencies are formulating proposals for a more equitable definition of intellectual property and the nature of its authorship, ownership, and control. The emerging recommended legislation will probably be similar to that covering visual designs and other art forms.
Some interesting success stories have stemmed from imaginative responses to perceived injustices. The Music Performance Trust Fund (MPTF) was set up to support live musical performances: record companies contribute a certain percentage to it from the sales of their recordings (which were perceived as a threat to live performance when the "juke box" replaced the barroom musician), and the MPTF funds pay musicians who give free public concerts. The Rhythm and Blues Foundation, in Washington, DC, was formed to provide support for aging rhythm & blues musicians. Major record companies have donated considerable sums to the foundation, which uses the money to support older African-American musicians who benefited little from their popularity while their record companies made millions from their recordings. Certain musicians have taken steps to ensure that local communities receive some profits from their music. There is no reason why the Suy Indians cannot both protect the parts of their repertory they wish to keep to themselves and reap the same rewards as other musicians from the commercialization of those parts they wish to share.
Musical rights are complex, and protecting musicians and indigenous people from exploitation will not be a simple task. The current copyright law is complex and ill serves many constituencies; but changes in it will threaten business interests, and they certainly will fight broader interpretations. Increased protection will require a considerable realignment of power and responsibilities.
REFERENCES
Danne, F.
1990 Hit Men: Power Brokers and Fast Money Inside the Music Business. New York: Times Books.
Shemel, S.
1990 This Business of Music. New York: Billboard Books.
Wallis, R. and K. Malm
1984 Big Sounds from Small People: The Music Industry in Small Countries. New York: Pendragon Press.
Article copyright Cultural Survival, Inc.
