Copy Rites

Copy Rites

Madison Building, LoC

The James Madison Building in Washington, D.C., which houses the U.S. Copyright Office.
Photo credit: Matt H. Wade from Wikipedia

My post last week about preparing oneself to improvise as a performance technique (or practicing improvisation sotospeak) inspired several reader comments. One of them began an exchange that I believe warrants further dialogue on the subject. A reader described improvisation as a way to find new ideas for compositions, which I countered as not practicing (in the sense of preparing oneself for performance) as much as a process of composing, which is different from the “creation of music in the course of performance” (“Improvisation,” New Harvard Dictionary of Music, Cambridge: Belknap Press, 1986; p. 392). I then asked the reader if he used improvisation in performance and how he practiced in preparation for that. He described two methods he used to prepare to play trumpet in his school jazz band. One, arpeggiating chord progressions and inserting passing tones to create “licks,” is a good way to practice applied harmony in a jazz setting. His second method, though—to “imitate the solos in recordings”—profoundly goes to a comment that was sent to me privately from someone who “thought there could have been more … about finding your own voice and improvising in a new music as well as jazz context.”

Imitation is the first and possibly most important step in finding one’s own musical voice. In every genre and culture, long before we become musically literate, we learn music by ear, mimicking the sounds others make. Even formal musical pedagogy requires that students imitate what their teachers demonstrate as essential to proper technique and interpretation. “No, that’s not right; do it like this” is an indispensible part of the music instructor’s teaching repertoire. But once the lessons have been mastered and are over, an autodidactic process takes place whereby everything learned can be ignored. Then the core value of the lesson remains while the student’s innate philosophical aesthetic takes over to supply insight and guidance. I remember a time long ago when I was hired to play with saxophonist Bill Evans, his teacher Dave Liebman, and drummer John Riley at Michael’s Pub in Boston. It was Evans’s “coming out” concert after he had been placed in the saxophone chair of Miles Davis’s newly reformed group. (He’s no relation to the pianist Bill Evans, who played with Davis’ band in the 1950s.) It also marked the official end of Evans’s apprenticeship with Liebman. I don’t remember much from that particular date. None of the music stayed in my head. But I do recall Evans making strange announcements on his CB radio on our way to Boston. Also, that we all stayed at the same apartment that night and listened to a recording of the gig. While Liebman honored Riley and me by sharing his candid thoughts about what he heard, Evans fell asleep. Because Evans was, for all intents and purposes, taking over the spot in Davis’ band once held by Liebman, there was a bit of a textural similarity in their playing. But Evans, like another of Liebman’s students, Joe Lovano, was striking out in his own direction. The music we played was nothing like what Davis was doing at the time. We were, in a sense, putting our own stamp on the two-saxophone and pianoless group that Elvin Jones had formed with Liebman, Steve Grossman (another Miles Davis alumni), and bassist Gene Perla. Davis, on the other hand, was playing his own brand of funk that would mark his coming out of “retirement” with the Grammy-winning album We Want Miles (Columbia Records, 1982). While Davis’s sound has informed the greater part of Evans’s music making since then, his music doesn’t sound at all like Davis’s or Liebman’s.

Dave Liebman’s Svengali-like influence on his students brings us to another comment from last week which was meant as a tongue-in-cheek reference to instructors who are allowed to dominate their students to the point of inhibiting them. My post included the first of a three-part YouTube extravaganza called Tristano Robots which is a satirical look at the so-called “Tristano-ites” who seem to worship everything about pianist-composer-educator Lennie Tristano. Tristano practiced a famously stringent teaching method that required his students to memorize key solos of the recorded output of Louis Armstrong, Lester Young, and Charlie Parker. They were also restricted in the amount of chord progressions they could practice and were instructed to learn complicated “lines” that were composed and recorded by Tristano and his principle colleagues: Warne Marsh and Lee Konitz. The chord progressions used were lifted from popular songs like: “All The Things You Are” (“Ablution”), “All of Me” (“Line Up”), and “You’d Be So Nice To Come Home To” (“G Minor Complex”). The fact is that many of the students of Tristano’s methods are highly original performers. Pianists Connie Crothers and Kazzrie Jaxen are two examples that come to mind. It is interesting to note that Dave Liebman, who also studied with Tristano, requires his students to write a “line” on the chord progression to John Coltrane’s “Giant Steps,” a tune that the more traditional members of the Tristano school prefer to eschew.

All satire, though, exaggerates the truth and the comment from last week reflects this with, “[Are] you sure the NSA didn’t have an eavesdropping program on me back when I was studying? I think that was me.” I can assure you that this was not the case because I know the person who invented the Tristano Robots and he explained that he was using humor to help process his experience of studying with one of Tristano’s students, pianist Sal Mosca. While not everyone involved with the Tristano milieu feels frustrated by their pedagogical regimen, there is a certain uniformity of approach that permeates the school. I discovered quite a bit about my own music making while playing with Connie Crothers that I truly believe was a result of a quest for artistic purity and integrity. But Charlie Parker composed original melodies over the changes to popular songs, so a precedent was set. And, although Parker did this primarily to avoid paying licensing fees on the tunes, his “lines,” like “Ornithology” (“How High the Moon”), “Ko Ko” (“Cherokee”), and “Donna Lee” (actually composed by Miles Davis over the changes to “Back Home Again in Indiana”) are highly memorable and have become bebop classics.

The reader’s choice of words emphasized an issue at the core of this phenomenon: the U.S. Copyright Office, like the NSA, was established to protect certain dimensions of society but often falls short of achieving its goal. Copyright regulations are intended to entitle the creator of a work exclusive rights for a period of time; currently 70 years beyond the life of the composer. Unfortunately, loopholes exist that obfuscate authorship; notably the “work for hire” provision that designates music created by a staff composer as belonging to his or her employer. So a bandleader might claim authorship of the works of his or her sidemen or a record company might demand the publishing rights in return for recording and distributing an artist’s music. Furthermore, artists aren’t given copyright protection for a work’s title, a chord progression or, in many cases, an improvisation. The case of a work’s title makes sense to me (imagine the backlog of infringement disputes over works named after their forms: Symphony in C, Concerto for Piano). Chord progressions are less obvious. Should John Coltrane be given copyright protection for “Giant Steps”? If so, what then of the 12-bar blues—public domain? However, to my way of thinking, an improvisation is a work that should be copyrightable. As it stands now, the only way to copyright an improvisation is to record it or write it onto paper. [1]

Current Federal copyright regulations, however, only cover the recording of the improvisation, not a recreation of it by someone else. So, while John Coltrane’s estate would only be allowed the mechanical fees for the recordings of his many highly original versions of “My Favorite Things” (with the composer royalties going to the estates of Richard Rodgers and Oscar Hammerstein II), [2] it could be denied royalties for someone else’s vocalise interpretation of his improvised solos on it. State regulations like California’s Civil Code § 980 offer a modicum of protection vis-à-vis legal argument, but not much. The situation makes me appreciate the genius behind Louis Armstrong’s copyrighting his part for “Cornet Chop Suey” before he recorded it. It smacks of a guerilla tactic in the arts that that supports a Deleuzean view of how American music, by and large, can be considered the creation of subaltern communities looking for assimilation and appropriation by the Great American Culture Machine.


1. California Civil Code § 980(a)(1), however, presents an interesting provision among its statutes: “The author of any original work of authorship that is not fixed in any tangible medium of expression has an exclusive ownership in the representation or expression thereof as against all persons except one who originally and independently creates the same or similar work.” Sounds like someone is optimistically concerned about an infinite number of monkeys at their typewriters.

2. To be sure, the links provided all point to clips on YouTube, where, for the time being, equitable royalties are being denied to Rodgers and Hammerstein as well.

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