Carl Stone: Intellectual Property, Artistic License and Free Access to Information in the Age of Sample-Based Music and the Internet

Carl Stone
Excerpt #3

FRANK J. OTERI:So, now for the loaded question, which is the theme of this month’s edition, what constitutes intellectual property in a creative work? Everybody who plays music, to some extent, is borrowing. When you’re playing on a piano or a violin, chances are you didn’t build that piano or violin. So you’re dealing with someone else’s sound world already, unless you’re Harry Partch and build your own instruments, you’re already dealing with borrowed sound. Now in the pop music world, there’s been this outcry of people who are older than the hip-hop generation. They say, “these hip hop people are not playing music, they’re just stealing other people’s music, they’re just taking riffs off of James Brown records and Funkadelic records. They are not playing these riffs themselves. They’re just stealing.”

CARL STONE:Well, it’s a big jump from saying that by using a violin you are somehow treading on the intellectual property of another person is similar to the debate that’s currently going on about sampling. Although I would accept the point that when you pick up a violin or play a piano you are accepting a whole range of assumptions about music which are inherent in the way those instruments work, and to an extent the way they have functioned in musical culture up until this point. But the debate over sampling, which has been an historical practice over hundreds of years, has suddenly become acute because of changes in the way we deal with originality versus copies. In digital theory, there’s no qualitative difference between a copy and an original.

FRANK J. OTERI:Well certainly in older times, composers based masses on bass lines derived from Gregorian chant melodies and popular song melodies like “L’Homme Armé.” Bach and others wrote quodlibets based on other people’s music, and Bach also arranged Vivaldi concertos for solo organ, and it would all become his.

CARL STONE:It would become his.

FRANK J. OTERI:And Vivaldi didn’t get a dime.

CARL STONE:And no one questioned that it was Bach’s music and not Vivaldi’s. Maybe with the arrangements there might be some fuzziness, but if a Bach or a Brahms doing his “Variations on a Theme by Haydn,” or when Berg used Bach. There are countless examples, Bartók, Dvorák, the list goes on and on.

FRANK J. OTERI:But people would say, and I get into these discussions a lot with jazz musicians, they would turn around and say, well O.K., they are taking this music because jazz soloists who are a big part of the jazz tradition take popular standards or take other people’s melodies and then create their own improvisations with that. But they would say these hip-hop guys are crossing a line here because they are not just taking someone else’s melody, or a chord progression, they are actually taking the recording.

CARL STONE:They are taking the recording.

FRANK J. OTERI:They are taking the performance.

CARL STONE:They are taking the performance; they are taking the sound. But it’s a logical extension of what people in jazz were doing and what Bach was doing. It’s just that now you can do that and it is intellectually a perfect extension of what was going on 300-400 years ago. I think it’s become fuzzy again because of the lack of any qualitative distinctions in a recording, and so there are certain issues about performance rights and so on, but if you want to question the integrity of the compositional act of using some other musical material as a starting point, I think the defenses are there, and not just in the music world. Let’s look at the visual art world if you want to see countless examples, and not just the 20th century, I mean the 20th century is full of them. The perfect example to me would be the Rauchenberg piece “Erased De Kooning.”


CARL STONE:As you know it’s a piece where he actually took a drawing of De Kooning‘s and applied a gum eraser to it. So I don’t think anyone could argue that that remained De Kooning’s piece and only De Kooning’s piece. It became a Raushenberg piece.

FRANK J. OTERI:But there’s also the thin line, there’s this wonderful Jorge Luis Borges story about a man in the 20th century who re-writes Don Quixote word-for-word, and it’s the exact same book, but it’s not the same book. It’s another book because it’s written in the 20th century and therefore the context is different.

CARL STONE:Sure and I think Cage would subscribe to that as well, as a cheap imitation or just his postulate that a recording of a Tchaikovsky symphony is not a Tchaikovsky symphony, it’s not a piece of orchestral music but it’s actually a piece of electronic music.

FRANK J. OTERI:I will dare say that the second time you’ve listened to the Tchaikovsky Sixth Symphony is not the same as experience as the first time you’ve listened to it, or the third or fourth.

CARL STONE:That’s true but that gets us into a whole other discussion, which I get asked about because I use a lot of repetition in my music, and I have my own pet theories about repetition and so on, and the fact that I think repetition, and I talked about this with my school chums at CalArts, that there is no such thing as true repetition in so far as each time you hear something that is repeated it is conditioned by each previous repetition. It’s a kind of Heisenberg Uncertainty Principle in music. And so given that, yes, the repeated act of listening causes an evolution which changes every time.

FRANK J. OTERI:Now to get back into the notion of intellectual property and your work. You create music that’s mostly derived from samples…

CARL STONE:That’s true.

FRANK J. OTERI:And it doesn’t sound anything like what it originally was in most cases.

CARL STONE:It may at some point in the course of the piece but at another point I would dare say it sounds very different. And that’s sort of a model of what my music is about. It’s taking something that’s familiar and making it unfamiliar.

FRANK J. OTERI:Now have you made it a practice to get permission to use this material…

CARL STONE:A lot of the music that I use has actually been in the public domain, at least the music, maybe not the performance. And there are certain practical barriers to getting clearances on every sample that I’ve ever used. In a piece like Mom’s which contains over 250 samples, as a practical matter it simply isn’t possible to get clearances on all of them. They are so short anyway, and they are, frankly, under the radar. In another case, my CD Mom’s which has the piece Mom’s which I just mentioned also has a piece Shing Kee where the entire work is derived from a very very short sample of Akiko Yano, a Japanese pop singer, singing Schubert in English. Yes, that small thing becomes the basis of an entire piece of music and so it’s reasonable to get a clearance for that. I think in my case the constraints are only one of practicality and not that I don’t want to make any acknowledgment or give just do to any musician or composer.

FRANK J. OTERI:Is there a line? When is it not fair?

CARL STONE:This is something that is obviously a matter of great debate that I don’t have an answer to. There are some people who take a position that all information wants to be free and the concept of intellectual property rights is unfair and outdated, and to hell with it all. And there are others who I think take a view that is closer to mine, which is that we cannot deny that art and music which uses materials of others is an important part of the world we live in. We have to find some way for artists to be able to create work without being constrained by laws that if not wrong are at least obsolete in a digital era. And that’s where I think we stand now. We are on the threshold of a very different world due to digital technology, and for better or for worse copyright law is very far behind in this regard.