 Welcome, everyone. I'm Yohai Benkler. I hang out here at the Berksman Klein Center occasionally. It's great to have so many people who are so diverse in so many ways. And really a pleasure to invite and to welcome James Boyle and Jennifer Jenkins to talk about their book, Theft. And I'm supposed to have a short introduction, but I can't. Partly because of that book over there with the Critical Legal Studies movement and the meeting here at Harvard Law School with Jamie and with Keith at the New Approaches to International Law Conference, I think it was in 93, where Keith gave who to whom the book is dedicated, gave what would later become a Terminator gene related paper. And Jamie gave what would later become Shaman software and Spleens, which in many senses defined the movement as an environmental movement across different categories and first identify what would become the alliance of free software developers and musicians and so many others who would understand the public domain as their environment. And it was over those years in the late 90s and early 2000s and in a series of conferences, one that Jamie organized in 99, another that in many senses founded the Center for the Public Domain that you organized together at Duke as you were founding the Center for the Public Domain, that in many senses gave the movement that we later understood in many senses as the free culture movement, Creative Commons, of which Jamie was a chairman of the board and one of the founders, came in many senses out of that set. And ever since, the center that they have built together as professors at Duke, the center that they have built together, the Center for the Public Domain, has been one of the central pillars of this movement, of that moment. And the innovation that they introduced in their first book with Keith Aoki of finding ways of telling this story in a way that is visually arresting and amusing and at the same time deep and accurate was a real innovation in the way of thinking about things together. And it's just an utter thrill to have you both come and teach us about theft. Thank you so much. Thank you, Yochai. As you can see, there he is with his penguin. That's the Coase's penguin. Thanks to other folk here at Harvard, with Larry Lessig present, but nevertheless honored here. You see him as the Statue of Liberty. Give me your tired remixing masses yearning to be free. Thank you to Jonathan Zittrain, our dear friends. Thank you to Jordy Weinstock, one of the original research assistants on this comic many, many years ago. Thank you to my daughter, Allison, who I won't identify, who risked parental humiliation to actually attend this event. It was very kind of you. And of course, thank you to the absent Keith Aoki. The dedication is in the book. You can read about him there. I won't go over it because it still makes me emotional. He, his genius, helped us begin this project. So this is a comic book by two law professors. What explains a comic book by two law professors? Tenure? So that's what our colleagues think. But there's a reason why this is a comic book. And the reason is that we wanted to make scholarship more accessible to more people around the world. We started off with another comic book, Bound by Law, which tried to explain fair use to the digital creators of the new century. We thought that it would be read by a few filmmakers and maybe some graduate students. So far, it's been downloaded a million times from our site. And it's under CC license. So who knows how many times it has been downloaded elsewhere. It seemed there was a demand for this kind of thing for an accessible explanation of legal technicalities, which the creators of the new era would need, and a demystification of what I realized it calls the permissions culture, the belief that every time we make or remake culture, we need to ask permission, pay a fee, get a license, that our culture leaves us no freedom to remake our own culture. This one is about the history of music. It's a much larger enterprise, as you can see. I hope you've got your free copies. It stretches from Plato to rap music. It's about all of the ways in the history of the last 2,000 years that we have attempted to regulate musical borrowing. And we have. Plato wanted to ban it. The Holy Roman Empire had a vision of controlling the mass so that only one mass would be sung across the empire. The church was unhappy about secular borrowing of religious music, despite the fact that the church borrowed from secular music all the time. And as we'll see in our presentation today, we're going to talk to you about two particular forms of regulation in the United States. One, the history of music and the musical color line of race and American history. The second, we'll talk a little bit about contemporary legal attempts to regulate music and to regulate musical borrowing. So the goal, though, was to make scholarship accessible. So it's a comic book, but it's also a scholarly comic book if there is such a thing. It's based on seven years, kind of depressing, of research. And at the end of the comic book, you can find a list of further reading that could be the basis for an entire course on musical history or musical borrowing or musicology. And we've even included on the comic book website references to every single claim hundreds in the comic book. So to show you an example, this is our spread six degrees of inspiration. It's a shoots and ladders game depicting the musical connections between six classical composers. If you go to our reference page, you can click on the thumbnail for one of those pages. And that will take you to a list of references with hyperlinks to the source material for everything that we say in the book. So leave it to two law professors to take a comic book and come up with what are effectively footnotes, hundreds of them. And we didn't even make any law students site. Check them for us. We did it ourselves. So a comic book in order to make scholarship accessible, as Jamie said, but also for another reason. You may have heard the quote, writing about music is like dancing about architecture. It's attributed to Elvis Costello often. He denies it. Why pictures of dancing about architecture? Well, part of the idea was that the medium would mirror the message. Remix in the service of talking about remix. So whether we were channeling Bosch's Garden of Earthly Delights. And a lot of this is Keith, by the way, what we're talking about. I mean, he was quite a cultured drummer. Or Archie and Veronica. Or the classic superhero comics of Jack Kirby and Stan Lee. Freud, Dr. Who, and the TARDIS. We were trying to make the point visually, the same point we're making about music in the book. Namely that a shared culture and the very act of creativity requires some degree of reference and reuse. And that in turn depends on the legal freedom to borrow. So we depended on copyrights, limitations and exceptions. In order to make these images, some of the source materials in the public domain. Sometimes we were making a fair use. Sometimes we were using Senza fairer. We were using copyrights, limitations and exceptions in order to talk about copyrights, limitations and exceptions. It's like an Escher drawing. And yeah, we use that too. So I'm gonna just talk very briefly about how we made the comic because we did actually do the graphic design for every single panel. Not just every page, every single panel here. And for me at least, it was an entirely new form of creativity when we started making comics. And I found it utterly fascinating. Some of you might, I think, find the same thing fascinating. It lights up different portions of your brain. So I'm just gonna pick a single page. So let's start with what we started with, which is the storyboard that we would actually create. This is going to be the story of the American National Anthem. Now, I'll tell you where I'm trying to go. The National Anthem is something which people want to venerate. They want to keep aside. They want to say it's a special form of culture, untouchable, right? That it has a certain aura that there are ways in which not just not legally, but was sacred and that it is therefore we give it a certain status which should prohibit certain forms of remix performance and so forth. And we wanted to use the National Anthem to show that that is not true of the National Anthem. That's, this is giving you the cliff's notes, spark notes, a key to where we're actually going. So here's the thing. Now listen to this little musical medley and tell me what you hear. And besides I'll instruct you like me to entwine the myrtle of venus with bachus's vine. Handed and playing it upside down. Okay, so you may have noticed that the first song is in fact the tune of the National Anthem, but it's not the National Anthem. It is the tune that Francesco Cui stole in order to make the National Anthem. It's a British drinking song. Now I think if you're going to rebel against another country, stealing their drinking songs and making them your National Anthem is a little bit cheeky, okay? You're not just rebellious colonists. You're pirates. But what we wanted to show, and we'll show to, so here's the pencil sketches that come from what we did there and now move on to the ink. What we were trying to do is tell the story of Francesco Cui, the 1812 attack on Fort McHenry. There's the, there's the, well we won that war by the way, contrary to what your history books say. Our protagonist picking it up, it turns into a crystal ball reflecting the anacriotic song which becomes the National Anthem. And then it starts to morph. I don't know if those of you who are lovers of Puccini may remember that Puccini used the National Anthem as the theme for Pinkerton, the American naval officer in Madame Butterfly. So we have it turning into a butterfly and then morphing into a Stratocaster played by Jimi Hendrix. At the end, Jimi Hendrix is saying, I'm an African-American guitarist and it's my song too. And a lot of people were outraged when he did that, right? Borrowing, borrowing, borrowing, all the way in. This took us, I would say this page, probably took us three weeks to create and there are 200 and whatever pages in there. So it's amazing that it ever got done at all. So that was what we were trying to do, but at least the United States still has some national music. I mean, surely we have my country, Tis of Thee? The bad news, actually, that's set to the tune of God Save the Queen, his National Anthem. How about the battle hymn, battle hymn of the Republic? No, that's from Canaan's Happy Shore, which became John Brown's body, the abolitionist Julia Ward Howe wrote the music only to see copyright claimed by a British folk song collector. My eyes have seen the glory of the stealing of my words. So what about the Marine hymn? Based on an old Spanish folk song, possibly an Offenbach opera. Yes, so remix isn't America's, future remix is America's past, one of the points that we're doing here and that's basically trying to express that in a single page in a way where the pictures and the words come together to reveal the underlying scholarship. So, let's turn to that. Welcome to America. So, American popular culture has a great deal of influence around the world and I think often we don't reflect on what its vibrancy can be explained by. In musical terms, at least, this was inevitably a remix nation. Every culture who came here, every country, brought their own culture with them. Some of that culture was musical. So what we had was music from all over the world being brought here. This is the musical Madagascar, the area of mega musical biodiversity, right? So, and out of that stew, and it was a rich stew, which all influence each other, which is borrowed back and forth, comes what would become the forms of American popular music that we know, starting from when it was ragtime, through to jazz, through to the blues, rhythm and blues, gospel, soul, rock and roll, rap. All of these are building on this past, but. So, if you think about the musical wealth that was brought to this country, and this is only a partial list, the grand European traditions of orchestral and chamber music, folk songs from, ranging from Eastern European songs to melancholy Celtic ballads, Spanish rhythms and dances from Spain's former colonies in the Americas, instruments from the horns that became Sousa's marching bands to the humble Scottish bagpipe, he's Scottish. Not everyone who came to this country did so voluntarily. Slaves brought with them musical traditions as well, African polyrhythms, the call and response of refrains that became spirituals, instruments such as the acontain spike lute, a precursor to the banjo. The point is, as Jamie was saying, that America was heir to the world's musical traditions, and from that substrate, that rich stew created some of the most enduring contributions to popular music. And not all of those contributions were positive, it has to be said. So as we pointed out, African Americans were extremely important in the development of American popular music, and for that contribution, they were honored by depictions such as these. Minstrelsy, the form of music known as Ethiopian at the time, and this was extraordinarily popular. It took banjo music, it added some components of European classical tunes, popular lyrics and refrains, but this was something which actually is a different kind of appropriation, perhaps, which we normally think about as it says here, if you can close in. It's easier to live with a system like slavery if you can caricature the people you're enslaving, slavery-appropriated people, minstrelsy-appropriated stereotypes. And music's powerful, music tells a story, and that story can justify or undermine current power structures. Having said that, the more you look at it, the more complicated it becomes. One of the most popular songs by Stephen Foster, American's great first popular composer, Nellie was a Lady, is a song sung by an African American who could have been a slave about his wife, although he would not have been able to marry her, who was a lady, and audiences were in tears, it was this humanization of the other, and at the same time it was all done by white performers wearing blackface. So this appropriation is multiplex and complicated. Music is powerful, it's one of the things that we really came to understand in the research here. People freak out about music in a way that they don't freak out about other art forms. No one's, I mean, people have freaked out about painting and people have freaked out about, you know, sort of novels and so forth, but somehow music seems to, people assume that music goes through our mental firewalls without ever being interrogated, right? That this is, it goes directly into the id. So part of this power is the power to inspire fear. Jazz, another great American invention. Here you see the jazz problem, opinions of prominent public men and musicians, the 1924 edition of Etude, and this was a shockingly popular form of music at the time. It had syncopation, the stress being between the beats rather than on the beats, it had those polyrhythms, it had some of the instruments from orchestral music all mishmashed together to form this new genre. It's not just the songs of the result of remakes, genres of the result of remakes, but what were we to think about it? Well, opinions were varied. Here you see George 80 saying that jazz is a collection of squeals and squawks and whales against a concealed back structure of Melbourne became unbearable soon after I began to hear it. Mrs. Beach thought it would lead to dancing, which, you know, it did, I gather. It would be difficult to find accommodation and more vulgar and debasing. And, you know, other claims were even more disturbing. This, however, I'm glad to say is John Philip Sousa, the person who wrote the Monty Python March, for those of you who only know Monty Python. John Philip Sousa is like, no reason with its exhilarating rhythm, its melodic ingenuity, is why it should not become one of the accepted forms of composition. Again, attitudes towards remix varied, but some were more disturbing. Jazz is to real music what the caricature is to the portrait. If jazz originated in the dance rhythms of the Negro, it was at least interesting as the self-expression of a primitive race when jazz was adopted by the highly civilized white race. It tended to degenerate it towards primitivity. I thought this was an argument we had consigned to the dustbin of history until recent events in Charlottesville and elsewhere convinced me that perhaps it was not yet dead, sadly. This is an argument about races. Races have essences. Some races are superior to others, and each race's essence expresses itself in culture, particularly music, and when they borrow from that music, you lead to a danger, and the danger is in part that your culture will become debased. We need, therefore, a wall to separate cultures and their music from contaminating each other a form almost of public health separation in order to stop the spreading of a pandemic. So this is just an argument that seems ludicrous nowadays when jazz is our well-accepted form of music. This just seems so crazy that they were arguing about jazz. Makes you wonder what they would be saying about today's music in 80 years' time, and makes you wonder how people will be talking about rap in 100 years. Your honor, what I'm really doing is no different what the esteemed Snoop dog or little Wayne did in the early days of the 21st century. You dare compare yourself to a classical rapper. We totally nailed Snoop Dogg there, I claim. This is like, you know, so what we have is a little, just a thumbnail there, which gives you, I think, some sense of the kinds of remix and borrowing we're talking about. So the fewer over jazz was by no means the end of these kinds of arguments, sadly. In the 50s and 60s, the battles over segregation were fought not only over lunch counters and swimming pools and voting booths, but also over rock and roll. And the terms that evoke the movie re-formadness concerns about how rock and roll is going to corrupt the youth, people such as Asa Carter, this is George Wallace's speech writer, said rock and roll is the basic heavy beat music of the Negroes that appeals to the basin man brings out animalism and vulgarity. That's pretty bad, but he didn't stop there. It comes from the heart of Africa where it was used to incite wars to such frenzy that by nightfall, neighbors were cooked in carnage pots. So rock and roll leads not only to dancing and licentiousness, but apparently also to cannibalism. Good to know. His fellow segregationists wanted rock and roll banned. And they weren't just concerned about musical or stylistic meagling. They were concerned about actual mixing of the races. If you start loving the music of another race, you might actually see them as human beings. I have to just read you this portion here. Tom Toms and Hot Jive and ritualistic orgy of erotic dancing. If you're trying to put people off, this is a really bad way of doing it. You're like, aha, all right. Weed smoking and mass mania with an African jungle background, many music shops pervade. Dope assignations are made and the white girls are recruited for covered lovers. We know many platter, spinners are hop heads. And many others are reds, left-wingers, or hecklers of social convention looking at you, you're high. So this is a fascinating component. So you have to remember that there were anti-miscegenation statutes on the books and being enforced in the United States in 1967, until that most perfectly named of all Supreme Court cases loving versus Virginia finally did. Sorry, thank you. That most perfectly named of Supreme Court cases loving versus Virginia actually did away with them. And so what you have here is something where there's actually an idea that music will do two things. It will undermine a musical color line, but it might also undermine a color line because people might start liking each other across the races brought together by this common culture. This is, and it's interesting, the segregationists gave music such power and they were right, they believed it had power and they were correct. This is Walter White, the executive secretary of the NAACP, it, rock and roll, is a great race leveler, tremendous instrument for bringing about a common ground for the integration of the white and colored youth. So that's one side of it, the integration side of it. What about appropriation? Wasn't this a case where by and large white musicians, white record companies were taking African American music, African American musical forms without compensation and taking for themselves? Certainly, absolutely. Was it a way in which the color line was breached and in which there was a change in the separation of American culture? Yes, absolutely. It was both of these things. So there is this way in which music is, and the story we tell here is a double-edged story always. It's a story of appropriation, it's a story of integration. Music has this remarkable power to get hips and eventually minds moving, right? But it's also a story, as we chronicle here, of great injustices. So this is little Richard. Now, you might look at that and go, isn't that kind of gender-bendy for like the 1960s? And the answer is yes, why? Because little Richard had to deal with segregated venues and he had to deal with people who were very frightened of him playing at venues that weren't segregated because they thought, hmm, this is a threat of the double kind that I do. These are his words on it. By wearing this makeup, I could work and play the white clubs and the white people didn't mind the white girls screaming over me. They were willing to accept me because they figured I wouldn't be no harm. He cynically, brilliantly manipulated this image of sexuality in order to gain access to venues which he otherwise would not have access to. And one of the things that we discovered reading is just the incredible brilliance and entrepreneurial innovation that many of these musicians showed in confronting completely unjust forms of limitation on their art. So let me go to a second example. What did take Chuck Berry? What do white musicians say about their debts to Chuck Berry? Well, here we have Keith Richards on one side. It's very difficult for me to talk about Chuck Berry because I've lifted every lick he ever played. This is the gentleman who started it all and this isn't one of my favorite quotes from the entire comic. If you tried to give rock and roll another name, you might call it Chuck Berry. That was John Lennon, right? Which is, so that's pretty foundational. And this seems to be clear. Here are, these are in their own words, two white musicians really crediting rock and roll to Chuck Berry. So that sounds like a simple one-way process of appropriation, but was it? So tell me if you know this song. That's Ida Redd, performed by Bob Wills and his Texas Playboys. Listen to this song. Do you hear any similarities? There's the boom, chuck, boom, chuck, boom, chuck. There's the lyric, Ida Redd. The first song was Ida Redd. That's Maybelline by Chuck Berry. It was originally called Ida May. The legendary producer Leonard Chess said, I think we might have some copyright issues so why don't we go ahead and change the name. And so the story goes that they were all sitting in the studio and they're like, what are we gonna call it? And one musician looks up and someone's left a mascara on the windowsill and it says Maybelline on it. They say, well, let's just call the damn thing Maybelline. That's a quote from Leonard Chess. And Chuck Berry was fine with that because he was all about the rhythm. He wanted the Ida Redd, Ida May, Maybelline. And so that's where we got Maybelline from. So Chuck Berry was building on the country music tradition that was in turn building on its Irish and Scottish predecessors. But then Chuck Berry was taking that, fusing it with rhythm and blues and inventing rock and roll or inventing Chuck Berry. And then John Lennon, Keith Richards, countless musicians black and white were influenced by Chuck Berry. Here's another example, Elvis. You ain't nothing but a hand. So you might not be surprised to learn that Houndog was first performed in Big Mama Thornton. So Elvis was appropriating from Big Mama Thornton and I have to say, I do prefer Big Mama Thornton's version, it's amazing. But it goes further, Houndog was written by these guys, Jerry Lieber and Mike Stoll or the legendary songwriters who were asked to write the song for Big Mama Thornton. If you want a good story, you should read their autobiography. They say they were so inspired by meeting her that they wrote the song in three minutes, she just blew it away. You can also read the part that we won't repeat there where she said, have you got something for me and made a series of vulgar gestures? You can read the account there, it's really, it's quite lovely. Sounds awesome. But they, in turn, were influenced, they loved rhythm and blues music and so they were influenced by African-American musical traditions. And so the musical barring goes back and forth and Elvis added country and rockability to it and made it his own. So who is appropriating whom in this whole story? When we were doing our research, we realized it was more complicated than we thought. And what did black artists think about Elvis? That was also more complicated than we thought. So we have a quote from Little Richard again. He said he was an integrator. Elvis was a blessing. They wouldn't let black music through. He opened the door for black music and then the Reverend Al Green says, yeah, he broke the ice for all of us. And you, I mean, African-American musicians had limited possibilities of getting their work into white venues. What they often did, and Little Richard said he did this on purpose, was to allow inferior versions of his music to be made. The Pat Boone version of Tutti Frutti is truly a desecration. It's a, I'm not religious, but in that case I would make an exception. And he said, no, so Little Richard said, yeah, the white kids, they have Pat Boone's version on the dresser where their parents can see it, but they have my version stuck in the drawer and that's one that they really listen to. And so this was this very interesting process of sort of the thin end of the wedge of musical change. So we argue the real story is neither a simplistic story of entirely one-way appropriation nor is it just a happy story of musical integration with no injustices. All musicians were screwed over, African-Americans musicians were screwed over worse than most. I mean, if you have to understand the musical culture of the time, just know this. You know how there were shows like American Bandstand? The DJs would take copyright in the music that they played. They would insist on songwriting credit. Instead of like, imagine Clear Channel saying, hey Beyonce, yeah, I get a share of that. That's how bad it was in general and for African musicians it was worse. On the other hand, there was this very conscious and optimistic sense that music can break through barriers that are really strong barriers and society can actually bring out social change, getting hips and minds moving. So we're gonna turn to our second theme, which is the commons. Yochai and his very generous introduction talked about the idea of the commons in culture, the stuff that all of us can draw on to make our art, to write our books, to make our music, to make our movies. At one point I was introduced on a website in the immortal text, James Boyle is one of the world's leading experts on the contribution of the pubic domain to culture and creativity. I was like, no, that was that Freud guy. I don't think I can claim that. But the commons is central to creativity. We have to be able to borrow. Every generation of musicians going back through history, one of the cliff notes of the book, has assumed a broad freedom to borrow on what went before. Everyone who has made music has made it under those assumptions, right? Culturally, aesthetically, legally, philosophically, which is not to say that there wasn't resistance to all of that. That was true of the church composers taking stuff from the troubadours. It was true of classical musicians taking from each other in ways that now would honestly get them kicked out of Harvard for violating the plagiarism policy, quite seriously. It was true all the way through the development. Is it true today? Is that true today and has now not racial color lines but have legal lines been deployed in order to turn that fertile commons into a network of private plots which borrowing is forgiven? So let's turn to the law. So as Jerry mentioned, musicians throughout history, we talked about jazz, one great story of American remix culture, another is the blues, and it's offspring from soul to rock and roll have built on the commons. And so as an example, let's start with Robert Johnson, the musical source of the Nile or the Mississippi Delta in this case. This is an example of the 12 bar blues, a chord progression stretching over 12 measures that includes one, four, and five chords. I'm gonna get up in the moon and I believe So as the 12 bar blues, Robert Johnson didn't invent it. The Mississippi Delta doesn't have ownerships rights over it. It's part of a rich fertile tradition from which musicians from all genres have drawn a sort of the chassis of a lot of our music. Miles Davis, for example. Listen to the chord progression. The chord progression is a little bit different, but it's still one, one, one, one, four, four, one, one, five, four, one. And returning to Chuck Berry, a portion of American music is built upon the simple musical form. Hound dog that we listen to, 12 bar blues, Maybelline that we played, that's the 12 bar blues. So one of the goals in our comic book was to celebrate the role of the commons, this vernacular, this musical language in our musical heritage. And of course, musicians don't really build on chord progressions or rhythm changes. There are also motifs and instrumentation and rhythms and characteristic baselines. One of the things, we're finally turning to law. We've been at this for 40 minutes. One of the things that inspired us to write this comic book was the concern that developments in copyright law are encroaching on, endangering, enclosing this musical commons. And so I'm just gonna talk about two examples. The first, very recent one. So listen to these two songs. These are the signature phrases from two songs. And tell me whether you think there's copyright infringement. So it's a song, Gotta Give It Up, by the late, great, brilliant Marvin Gaye. I used to go out to parties. Here's the second song. That's from Blurred Lines by Robin Thicke and Farrell Williams, actually more by Farrell Williams. Thicke was just kind of lying about his authorial contributions. Huge hit in 2013. I asked you to think about it. How many gut reaction think copyright infringement? Looks like a manure. How many gut reaction think, no, they're just a couple of groovy songs. You've probably heard of this case. It was recently affirmed. So part of the reason they sound the same is because they are both using the same vernacular. They're both sort of funky, groovy disco songs. And in fact, Farrell said, well, I was channeling that late 70s feeling. Is it illegal to evoke a groove? Copyright law, as you might have learned, those of you who took Professor Fisher or other professors' classes, under copyright law, a lot of the similarities that you heard are not detectable, no infringement. Unoriginal stuff is not protectable. Sends off fair, a music off fair, genre-defining elements are not protectable. And because of arcana and the copyright law, the party noises, the cowbell, the falsetto, elements like that that were not reduced to paper by Marvin Gaye, were not protectable and not relevant. Although, with regard to the cowbell, I think Christopher Walken would disagree. More cowbell. Do you guys still know this reference? My students don't laugh and I'm like, okay, we're gonna stop class and we're gonna watch Sorry Night Live because I gotta fever the flavor of more cowbell. In theory, copyright law does not cover a lot of the similarities there. It is okay. Copyright law doesn't cover the defining elements of a style or a feel or a groove. But in this case, a jury found differently. They found Robin Thicken for all. Williams liable for over 7.3 million dollars because the song was so popular. The judge later reduced that to 5.3 million dollars plus 50% of future earnings. And just a few weeks ago, March 21st, the Ninth Circuit affirmed that jury verdict. They said, we can't review summary judgment now and we are really reluctant to mess with the jury verdict because the jury heard the evidence. They made a deliberation and they made a decision. And so the 5.3 million dollar verdict for that song sticks. And so the reason this case and cases like it concern us is that for procedural reasons, a lot of these cases are left to a jury. And even when copyright law, as written, would say there's no infringement here, juries might nevertheless find infringement because two songs kinda sorta sound the same or because they feel compelled to by expert testimony that cherry picks and amplifies the importance of musical elements. I'm not joking. The expert testimony in this case said, ha! An A7 chord repeats in the keyboard parts of both songs. Happily the judge. And well, there's a repeated eighth note over here. And there's a five, six, one pitch progression over here. And there's a melodic contour that goes up in what you heard and then it goes down. There must be copyright infringement. Well, I mean, if you're a jury, you might say, well, a professor says that, maybe so. So we're concerned because jury verdicts can go wrong, they can go right, and they tend to stick. Of course, I've said, the Ninth Circuit has said that it's unwilling to overturn such jury verdicts. And so the story that we've been telling about this vibrant musical commons that musicians, including Marvin Gaye, his song, Gotta Give It Up, was based partly on a song called Disco Lady by Johnny Taylor, that that musical commons is being eroded. And I think it's not an exaggeration to say the music industry. Lawyers, musicians have freaked out about this jury verdict. Stevie Wonder, John Legend, Adam Levine, all said it was a disaster and they were worried about its effect on creativity. Copyright lawsuits have spiked, not surprising. And there are huge incentives to settle these kinds of cases. So the first development, the blurred lines case and cases like it have given us some concern. And the second development deals with sampling. So that's using recorded music in your music and not just recreating those elements with your own instruments. Two more songs for you. That's an arpeggiated chord from George Clinton's Get Off Your Ass and Jam. It's two seconds, it's three notes. It's arpeggio. Do, do, do. See if you can hear the sample of that guitar riff. I got this stuff, yeah. Time for 50 miles with jokes. I'ma get there. I'll watch in my back and hold it straight. Do you even hear it? I didn't the first time to listen to it like really. It's the police siren thing. They changed the pitch and the duration so it kind of sounds like a police siren. Now again, if you've taken copyright law, you're like, this is easy, right? It's three notes, it's two seconds. Nobody would listen to that and say, ah, that is George Clinton's guitar riff from Get Off Your Ass and Jam. It's de minimis, even if it's not de minimis, it's clearly fair use, the highly transformative use of a tiny fragment of music. Not so fast. Sixth Circuit says, get a license or do not sample. We do not see this as affecting creativity in any significant way. They drew a bright line rule that sampling anything more than one note. One note's cool, so it's just gonna require a license. With cases like this, not surprising in the music industry, simply license the samples as a matter of course. 11 years later, the Ninth Circuit did disagree with them and so there is a circuit split on this, but by the time this case came along, the permissions culture had already accreted around decisions like this one. Imagine Miles Davis trying to solo under rules like this. Hey, it's Miles. Can you give me a license for 12 notes of Gershwin, a dash of Rodgers and Hammerstein? I'll need about eight bars from now. Wait, how much? These are two of the legal developments that have concerned us about the fate of the musical commons and it's part of the reason that popular, some rap music now sounds pretty different from the wall of sound. All the samples stacked up that you heard in the late 80s, early 90s from Public Enemy, for example, and here's how Chuck D. feels about copyright and sampling. Come on, now in court, cause I stole the beat. This is a sampling boy, but I'm giving it a... Can I get a witness? Can I get a witness? It's a great song, by the way, if you listen to the whole thing, he just goes off. So cases like Blurred Lines, combination of cases like Blurred Lines over composition rights, cases like Bridgeport over sound recording rights and the permissions culture that grows on top of that make us worry about music's future. So, conclusion summing up, the future of music. We tried to tell the story in the comic. You should all have your free copies of this multi-thousand year history of borrowing and self-reference. And we also tell the story of resistance to that, resistance for many reasons, philosophical, religious, aesthetic, moral, and racial and now legal. If you look through the history of the comic, it's hard to get a bet against music because it seems to flow over these things. So we've tried to show you the way in which music is building on the shoulders of, standing on the shoulders of giants there, although the idea that Joe Cocker is on the top I think is kind of probably unfair, is standing on the shoulders of giants. And we've also, as I said, laid out these various forms of borrowing and reference. This is our riff on Abbey Road, the Abbey Road. I personally prefer it to the original, I have to say. Although our assistant got very worried that the cars were on the wrong side of the road. He notices this kind of thing. So, look at all of the types of resistance that I described, stop mixing modes, stop the jazz problem, stop mixing races, stop mixing masses. And above it hangs the wall of music. This was an homage to Keith, and to the great wave of Takagawa. And all of those stop signs are basically unable to hold back the flood. Music flows over, around, under our limitations. And perhaps that will be the same in the attempted musical barriers that the law and the permissions culture are now putting forward. We, nevertheless, were worried because we looked at the blues. We looked at rock and roll. We looked at jazz, and we said, these would be, if you applied the rules that you just, Jennifer just described to you, these would be illegal. And we just started with a fairly basic premise that anything that makes the blues, jazz, and rock and roll illegal is stupid, right? So, we just kind of wanted to say, like, and the thing is, what forms of music will we not have and not know that we didn't have because we didn't have them? Right, there have been empirical studies on musical diversity, how different songs are. You will be shocked, shocked, I'm sure, to find that the line of popular music has become more and more and more homogenous, at least in the top 20, that the songs are more and more similar, more and more auto-tuned, more and more converging. There are a lot of reasons for that. Certainly a lot of reasons for that, including media concentration, all kinds of other things. But one of the reasons is that the types of borrowing to create entirely new genres that we described here is genuinely harder, it's genuinely harder. Not to create a really cool YouTube mashup, you can do that, to found a genre, as Ray Charles did. So, and basically make your living from it to develop it. That's harder, right? The one off, sure, the one off's easy, but the genre is harder. So, nevertheless, we end on an optimistic note. This is Keith, and another musician who died tragically young, David Bowie. And you see us riffing, the staff of music is long, but it bends towards harmony. So, we thought we would let the comic speak for itself for our conclusion. So we're going to, I will nevertheless be your guide here in case the letters aren't clear enough. These shadows have danced for you for a fragment of time. Perhaps something in their words has caught your attention, giving you something, giving you an idea. But now their moment in the light is over, and till the next time we meet, all that is left is the opposite of music. The staff of music is long, but it bends towards harmony. Thank you very much. You left one hour. A little time for questions, but some. Sorry about that. If you want us to be our, I feel like a folk singer here. Should be awesome. Thank you so much, that was wonderful. I'm thrilled that you ended on a note of optimism. I wonder if you've read Spider Robinson's Melancholy Elephants. I have. Marvelous. So, what I'm wondering is, in light of recent review and possible revision of at least the United States' Copyright Act, if you see someone going to Congress and making this argument and saying, maybe we should revisit things to make creativity possible so we don't lock music down, or should we maybe assume that it's gonna happen without the oversight of law? It's gonna continue to be an underground evolution. I mean, I'll let Jennifer answer for herself, but for me, I think those forces are there. It is very easy to caricature anyone who is saying, copyright law is always a left space for creativity, or you're a pirate, you just wanna free ride on other people, which is one of the reasons we did this book, because you wanna say, yeah, like Bach, that kind of pirate, like it's sort of going back through history, it's like, this isn't new, you know? I think that there is, I think partly in academia and elsewhere, there is the beginnings of this commons movement that Gihai was talking about. I think that it is very far from achieving legislative ends. Generally, its successes have been making very bad proposals, less bad, rather than putting forward good proposals. We could hope for this. There is an attempt to actually produce some innovative things, and I think there's also some hope, not so much in the law, that one of the changes will be cultural. Band by law, our earlier book, was about documentary film, and documentary filmmakers actually got together and had a statement of best practices where they said, you know what? This should be legal, and we should all say that it should be legal. I kind of hope that maybe musicians themselves can start asserting that freedom and yelling at their labels, if the labels say otherwise. Yeah, building on that, if we wanna have a case for optimism, Congress may not necessarily be the venue for that change, because copyright law actually is quite sensible, as written, a lot of the things that we were talking about aren't in the copyright statute and wouldn't be within the province of Congress to change. Things have gone wrong in court decisions. Things have gone wrong in jury deliberations. I would love to see model jury instructions that actually made sense. The instructions in Blurred Line's case were completely muddled. And also to close with what you were saying, a lot of it happens in lawyers' offices and record labels and music publishers and among musicians themselves, the permissions culture that we were talking about that may not reflect what's actually in the copyright statute, but reflects the way business is done. So I think if there is a case for optimism, there are a number of venues in which change could happen. Two things, one, it looks like your book is intended to be read with a soundtrack. Do you provide one? We're working on it, yeah. So it took us seven years to write the book. We actually do have a playlist of about 300 things. We just haven't finished putting it on our website yet. Okay, so I feel like every page I read I should be listening to something that you're linking to. There will be an audio companion soonish. I hear there's this thing called Spotify that has playlists and I may consult that. Also, is the bloodline case worse than the My Sweet Lord case? No. Just briefly, the My Sweet Lord case was a case involving subconscious copying, namely that you can infringe copyright if you copied subconsciously if your memory was playing a trick on you. So think about musicians who are just infused in the musical tradition and you have riffs here and all the stuff in your head. You can infringe copyright even if you didn't know, not only that you weren't breaking the law, even if you didn't know you were copying in the first place. So if you think about it, it's like trespass, you don't even know you're walking, right? It's the subconscious copying is insane, in my opinion. This is my legal, as applied to music. And so I do find a subconscious copying as enshrined in the My Sweet Lord case as deeply problematic for a different reason that I find the blurred lines case problematic. So that was an act of sheer brilliance, I have to say, the book, the performance of it. The politics of it. What grabbed me so much was the way in which, as it would, you wove the political history of the United States with the cultural history. And I wonder to what extent you yourself saw this project as in some sense your conversation with the crisis moment we're in now. Like many people, I think recent time has caused us to wonder is like, is what I'm doing worthwhile? You know, if I'm not in the FBI or working on the emoluments clause, is anything that I do useful? And we were genuinely struck by that. And we came to believe that we were. Firstly, we did not expect as much as the book to be about the history of racial segregation as it ended up being. And when you read the history, that's what it's about. I mean, the history of America, the history of America's culture is the history of attempts to be separatist, which fail, right? That's the story in the book. And so we sort of noted, it's like, oh, this is, we've seen this again. We've seen this before, we've seen it again. And so for a lot of us, for me at least, and for some of our colleagues, it's like this is the story of the fact that some of the bridges that we build across cultures are not built by immigration lawyers or constitutional suits. They're built by cultural outreach. And all of that has to happen at once. And that, at the end of the day, was what we ended up thinking, I think. Yeah, I mean, the political aspect of it did kind of find us. As Jamie said, when we started doing research, you just couldn't get away from that story. And we started seven years ago. And so politics has evolved since then. But it is a very helpful message that art is one way that we can overcome some of, as Jamie said, music doesn't like walls. It flows over walls. It flows around walls, the wave. And so art is one way that we could bridge some of those divides, I think. That was amazing. Thank you all so much for it. And I guess bridging off of that comment and the points you all just made, I mean, it's just fascinating that over the course of the 20th century until now, black music's been at the forefront from jazz, to blues, to rock and roll, to rap. So, and as you all are saying pretty much, it's not coincidental that copyright laws have done quite a bit to stifle creativity in certain ways or control how that maps out. So I guess I was curious if y'all could delve a bit deeper. How racist is copyright law? Or as it has developed over the last 100 or so years? Great, great question. There's certainly, I could tell a story where that is very much what's going on. I think, to be honest, there would be a lot of pushback against it. I mean, James Brown, for example, was extremely upset by sampling, thought that sampling was an act of violation of law. He says, can you take my toenails without my permission? And also an act of disrespect towards his music, right? And he wanted the law to protect that music. And if it didn't, then he felt that the law was not protecting him. And that he might say, well, you're not protecting me because I'm an African-American musician. So the difficulty is each side sees either respect or disrespect. Some of the things we're talking about here, the freedoms to borrow or not to borrow. When Ray Charles sort of basically creates, so he took whole hog things from gospel. I mean, literally almost entire songs. And the people who wrote them had written them as devotional music. They were really upset, right? There's like, you were taking this little light of mine and owed to Jesus becomes this little girl of mine, you know? And they're like, this is not just copyright infringement. This is heresy. And so they back then did not have legal weapons that they could have used to assert control, right? Now they would have. What would the right answer be there, right? So one of the things that we were trying to do here is show both sides, which is we have a lot of, where the character is literally split into two, I need freedom, I need control. Artists have always wanted both, whether they're white artists or black artists. So I think when was copyright law, the music business, you know, frankly racist, certainly during the period of segregation, is copyright law blind to current forms of musical creativity, let's say hip hop, applying to it different standards than were applied to early ones, yes. Our attempt here is to say, hey, look at jazz, jazz needed that freedom to develop. There are people who would argue that on the contrary, what we see now is finally musicians, including African American musicians, getting the respect they deserve and the control they deserve and being paid their licensing fees, right? And they would say, it's up to now, it's basically been a commons for everybody and the commons was African American music and finally we're getting to own it. And that's a story you could tell. That's not the story we tell because we think the culture is our culture collectively and it is a culture that everyone contributed to and a lot went into rock and roll. Rhythm and Blues went into it, so did country music. It's like the streams flow together and become the Mississippi Delta. So long answer to a very short and incisive question, I apologize, but that's as much as I can say. Building on Yo-hai's question about the pieces where you brought in race and social issues at the corn, you could have easily just focused on the music composition or just the law and really made a big thing out of that as well. Did you think about this from the beginning or really what brought it to the forefront for you to talk about these other really important topics that sometimes are candidly glossed over by other people? We co-taught a class with our dear colleague, Anthony Kelly, who's a musician, an expert in improvisational music at Duke. And it was half composers and half law students and the question was by the end of the semester, would they be able to understand each other? Sort of, they had to compose music that was under the borderline of illegality. And then the musicologists had to both either say that it was or it was not borrowing blatantly and the lawyers had to either say it was copyright infringement or not. It was really pretty fun. During that class, Anthony produced the jazz problem cover which he had in his personal collection and we were like, holy cow. And then we thought like we really, I mean, we knew it in the abstract but when you start reading the concrete stuff like the stuff from Asa Carter, we missed out. I mean, there's more, believe me, there's way more. And that started saying, look at the hysteria. And it was the hysteria, I think, that certainly attracted my attention and made us want to dig deeper. And sort of like, you don't get this much emotion if people don't think there's a lot at stake. And now you're like, wait, over a rock and roll? So, but that I think was the moment. So, I think there was a question there. You have to go high. Are we gonna end? We do have to end, but go ahead. Last word, last word, yay. I was wondering where do you think innovation will move? Because like, I heard before 1972, a lot of the music from legacy artists go into the public domain. Does that mean that it's still, we can still borrow from that? What's the next path to innovation for music? Great question. One obviously, there's incredible moment of musical creativity. We have, you know, any laptop has a better recording studio than Phil Spector had, you know, in creating his wall of sound. YouTube gives you a platform to the world, et cetera, et cetera. There are more types of music available, more genres, more musicians making money out of music. Generally through live performance, rather than through recording or streams. All of that speaks to great possibilities. For me, it's the possibility that we start to explore this sort of genre formation. Not so much, I think, in terms of music going into the public domain. Sadly, some of it will, but it's generally very old music and there's only people like us who are interested in it. But more, I think, because as people try and create something, particularly because they have something like YouTube there, they think it's so espotify, it's so easy, that that process of inspiration that we're describing, that ferment, will continue at least on the level of informal culture, like you put it up in YouTube and if they monetize it, they leave it alone. Maybe not on the level of Farrell Williams, Robin Thicke culture, right? Because there it's like, okay, no, there's gonna be the multi-million. And so the question is, can we ever do the thing where someone can make a career out of that rather than busing tables? Which is what I want. I want musicians to make a lot of money so they can make music that I can love. That was utterly beautiful. You are enormously generous to share your time, your talent, your very physical atom books that you have given us. And I feel like we're incredibly lucky to have had the opportunity to have you perform for us, the insights that you've developed in such a way. Thank you so much. Thank you. Thank you for coming, Johar. Thanks, everybody. Thank you, guys. Enjoy the books.