Here’s the problem: no one — at least no one with any real sense of ethical values and an elemental understanding of current copyright law — would think to simply lift a song by, say, The Beatles and slap it into an advertisement or otherwise record it without crediting John Lennon or Paul McCartney and paying for the usage. But, somehow, such ethics don’t always seem to apply when it comes to using the indigenous music of native peoples from around the world.
Take, for example, an incident witnessed by Professor Anthony Seeger of the School of the Arts and Architecture’s Department of Ethnomusicology. Some 20 years ago, when Seeger was affiliated with the Museu Nacional in Rio de Janeiro, he spent much of his time lugging a reel-to-reel tape recorder through the jungles of the Brazilian Amazon to document for scholarly study and safekeeping in the museum’s archive the music — every note, every word, every nuance — of some of the peoples who lived there.
At the request of one of those peoples, the Suya Indians, Seeger helped to produce a commercial recording of their music. But he insisted that the cover of the recording, Musica Indigena: A Arte Vocal Dos Suya (Indian Music: The Vocal Art of the Suya), carry a statement in large capital letters: “This recording was made with the knowledge and approval of the Suya. 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.”
“It didn’t work,” Seeger laments.
Several months after the recording’s release, the Suya chief visited Seeger at his home in Rio de Janeiro. Turning on the television, “we heard, to our immense surprise, a Suya song played behind an advertisement” — a usage for which the Suya were neither asked permission nor paid. “I looked at the chief with considerable concern,” Seeger recalls. “He grinned and said, ‘It’s beautiful; everyone is hearing our music.’”
The chief may have been pleased, but Seeger was profoundly disturbed by the incident and its broader implications.
“I wondered at the freedom Brazilian television felt to use this group’s recordings as background music,” he says, “a policy that would be rigorously policed if the music were performed by a commercial artist in the United States but which can’t be policed when it is only performed by the best living Suya musicians.”
So one is left to ask: Who owns the music?
It is a question that looms large in this era of the Internet, when file-exchange technologies like Napster and Morpheus have made it possible to pull music — copyrighted or not — straight off a computer. And it is a question that looms large for ethnomusicologists like Seeger, those scholars who are devoted to understanding the meaning and structure of music as cultural and intercultural phenomena, who often find themselves in the role of guardian of that musical heritage.
“We are in the midst of an intellectual-property gold rush,” says Seeger. “Thousands of fortune seekers are trying to stake their claims to promising territory, existing claims holders are seeking increasingly aggressive means of defending their claims and the original owners are often being ignored.”
Such problems predate the global reach of the Internet, of course. Seeger cites Paul Simon’s phenomenally successful Graceland album, which came out in 1986 with an infectious mix of rhythms and melodies from South Africa’s townships combined with traditional pop, as a watershed that catapulted these issues to a new level. While Graceland didn’t make use of actual traditional music recordings, it inspired imitators who, in some cases, have expropriated the real thing, earning vast sums of money for themselves from music that’s not their own while putting nothing into the pockets of the actual creators.
“When I started out making field recordings 30 years ago, there wasn’t a world-music industry,” says Professor Timothy Rice, chair of the Department of Ethnomusicology. “But now, a recording can be unscrupulously ‘sampled’ by commercial artists and mixed in with their synthesizers and their drumbeats, and all of a sudden there’s a product worth millions of dollars.”
And even when traditional music isn’t stolen outright, it can be misappropriated, says Rice, who is an authority on Bulgarian and Macedonian music — a passion that evolved from his love of international folk dancing. In 1990, a recording of Bulgarian choral music hit the international world-music charts and won a Grammy for best traditional music. Trouble was, Rice says, the recording was rife with misrepresentations, including the fact that the music had been modernized and was not really a true version of traditional music.
Adding insult to injury, an Italian music producer in 1993 put out an industrial-dance-music version titled From Bulgaria With Love. Rice was not amused: “It’s one thing to make a semi-serious recording, which at least shows that you somehow respect and love the music. It is another to take the music and laugh at it.”
Who owns the music is a question of particular concern to archivist Louise Spear of UCLA’s Ethnomusicology Archive, a collection of some 10,000 field recordings by hundreds of researchers and collectors. The archive’s recordings don’t leave the building; they may only be listened to in the facility and may not be duplicated without the explicit permission of the musician or collector.
“One of the questions I hear all the time,” says Spear, “is, ‘What good is it if I can’t copy it?’ There is an assumption that if the music exists, anyone and everyone has a right to have it.”
Dealing with representatives of Hollywood television or movie productions can often prove particularly challenging. “They come in with requests like, ‘We’re doing a movie that takes place in Africa, and we want authentic Pygmy music. Give me something that’s not copyrighted so that I can use it quickly and easily and cheaply for my movie.’”
But, Spear asserts, it simply doesn’t work that way. Rather, “they need to contact the collector, ask for permission and work out an agreement.” And in many cases such requests are impossible to fill under any circumstance; some pieces of music in the collection are of a religious nature and are meant to only be listened to in an appropriate context, for example, and some are pieces that are intended to be heard only by women.
The popular notion that anything “ethnic” is up for grabs — anything that might fall within the categories of so-called world music or roots music — also is proving to be a problem for scholarly researchers, Seeger says. “I’m concerned by the growing perception among indigenous people that ‘someone is getting rich on our music.’ It is becoming harder to be an ethnomusicologist with a tape recorder today than it used to be because people are always suspicious, even when we have no commercial intentions.”
UCLA is in the forefront of addressing the complex issues with which all archives are now grappling. Last winter, the Ethnomusicology Department’s conference on “The Role of the University Sound Archive in the Twenty-First Century” drew scholars from around the world.
Seeger, who spent six years as director of the ethnomusicology archive at Indiana University and 12 years as director of Smithsonian Folkways Recordings at the Smithsonian Institute before coming to UCLA in 2000, has written extensively about these issues, and he serves as a member of the International Council for Traditional Music’s Committee on Musical Copyright.
Copyright law alone, he says, won’t solve the problem. In some respects, in fact, new laws could make things more difficult for musicians and researchers alike.
Because “most musicians take musical ideas and transform them,” Seeger says, “there is a distinct possibility that more laws will further inhibit live, creative performances and restrict the exchange of musical ideas.”
The African-American tradition, for example, places great emphasis on improvisation, notes Jacqueline Cogdell DjeDje M.A. ’72, Ph.D. ’78, director of the Ethnomusicology Archive. DjeDje is an authority in both African and African-American music, the result of a personal journey that first saw her preparing to become a classical concert pianist and then led her back to her roots in her hometown of Jesup, Georgia, where she studied the gospel and spiritual music she grew up with. In that culture, she explains, performers start with a basic body of material — “music that was created, say, during the slave era, spirituals like ‘Go Down Moses.’ From there, each performer goes on to tell his own story, his own version of ‘Go Down Moses.’ It becomes a new song each time someone creates it.”
What’s more, concepts of ownership vary from culture to culture. Among the Suya, for example, a song belongs not to its composer, but to the person who sings it aloud for the first time. Among Native Americans, says Rice, “there are issues of ownership based on notions of the power inherent in the songs.”
If there is to be greater copyright protection for indigenous music, Seeger says, the law must truly protect musicians, not just music companies. Current U.S. copyright law protects only recent music compositions, and then only for the life of the composer plus 70 years; traditional music, including American folk and roots music, is unprotected and considered to be in the public domain. Yet copyright law has also been used in this manner for charitable purposes, says Seeger. For example, several members of the civil-rights movement, realizing that the song “We Shall Overcome” — an old religious hymn — would probably be claimed by an arranger, decided to copyright the song and have proceeds from its usage sent to the Highlander Folk School, which had been the center of civil-rights organizing.
“The real issue,” says Seeger, “is not the music industry but the economic and cultural exploitation of one group by another group or individual. 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 derived. Many Jamaicans feel that Harry Belafonte, for example, robbed them by copyrighting and earning revenue from arrangements of traditional songs.”
Along similar lines, many African-American musicians in a wide range of genres, from blues and jazz to gospel, were paid miniscule sums by record companies for music that earned the companies millions, says DjeDje. “The companies would say, ‘We’ll pay you $50 for the rights to this.’ The performers didn’t realize that their song could be copied over a hundred times and they could make money each time. To them, and at that time, $50 was a lot of money. They didn’t understand the technology. They didn’t know the possibilities.”
But times have changed, Seeger says. “We’re in the middle of a huge sea change in the way people think about indigenous knowledge,” says Seeger. He notes that on the international level, the 1994 General Agreement on Trade in Services requires individual countries to establish their own copyright laws. Some countries that previously had few laws in this area are now striving to protect their traditions. Brazil, for example, is currently pushing for a law to protect valuable indigenous knowledge — knowledge that would encompass both indigenous music and the native understanding of pharmaceuticals derived from plants and trees. Major drug companies, however, are lobbying against the law.
The issues won’t be resolved quickly or easily.
“The legal issues will have to be solved by lawyers,” says Seeger. “The ethical issues [raised by researchers and scholars] will have to be dealt with by changing attitudes and behaviors.”
At the very least, some combination of obtaining a musician’s permission and making attribution may constitute a respectable solution.
Ethnomusicologists going into the field today routinely seek written or taped verbal permission before recording music. And many are backtracking to obtain permission for recordings already made — an often daunting task. For research comparing African and African-American fiddle music, DjeDje is in the process of seeking permission from nearly 60 musicians whom she interviewed and whose music she began recording nearly three decades ago, long before she realized she should obtain permission. Last summer, she wrote scores of letters to African-American musicians and their families in southwest Louisiana, where zydeco is a popular musical form, and in the Appalachian states, where they play “old-time” string-band music, “but a lot of them don’t even remember who I am. One woman wrote back to me, ‘My husband has been dead for the past five years and now you’re writing me asking permission? No, you cannot have any permission.’ Yet, I know that were this man, an important black fiddler, still alive, he would want to be included.” DjeDje is determined to keep up the pursuit, she says, because “I don’t want to be someone who is known for exploiting individuals.”
“While we’re waiting to change the laws, which may take a lifetime,” Seeger says, “it’s equally important to change the sensibilities of people using this music so that they recognize the rights of the original performers.”
He envisions a “new awareness” of the issues of musical ownership.
“People need to realize that you don’t just take music off of an old recording without finding out who owned it,” Seeger says. “To do so, you are making off with a product of their creative spirit. By law and by moral right, they should have a say in what is being done with it.”
He harkens back to the Suya.
“When I went down to Brazil this past summer, they were concerned about their music being heard by everybody. They said, ‘We don’t mind people learning about us … but what are they going to do for us?’ I think,” says Seeger, “that it’s a reasonable question for them to ask.”
