Does Copyright Deter Social Movements?

"Thats how to always get something, just get together all at once and yell and yell and yell and yell and yell and yell and yell." -- Woody Guthrie (1)

Music as a unifying agent in social movements

Speaking with a common voice is vital to collective action. Art, especially music, is essential for delineating collective goals and for unifying people around a collective message. It is through song that a movement can objectify itself and its history "creating and establishing a sense of community."(2) This enables a social movement to present "the collective's view of events free from the censorship of the dominant culture."(3) Some organizers recognize the value of a song is that movement members "find that they are not alone in the fight, but are part of one huge struggle where their voice plays a dominant role."(4) To others, the music itself is transformative "It is a feeling of not being alone. You let people start singing together, the whole room becomes different. We may never do another thing that year together, but there was unification."(5) It the attributes of communal support, togetherness and delineation give music its power creating, supporting and sustaining social movements.

You must know the tune to sing along

The success of music to encourage collective action can be found in at least two places. First, people need to know the tune to sing along. Woody Guthrie, an American folk singer and political activist would intentionally take tunes from traditional songs to make his music more recognizable. The music to "This Land is Your Land" was taken from a popular song by the Carter Family, which had in turn been inspired by a Gospel song.(6) By adding verses to old songs Guthrie believed that result could transform the song's message, "I mix up old tunes . . . I use half of two tunes, one third of three tunes, one tenth of ten tunes. I always save back my notes and words left over and pound them out to poke my fun at the Democrats and the Republicans and these wall street ramblers."(7) For example, "This Land is Your Land" has two less well known, more political verses. A modern example is Guy Davis' new verse to the classic "Midnight Special."

Second, important to encouraging participation is the music's ability to be adapted to new situations, and put to new tunes to have the words take on new meaning. We Shall Overcome's lyrics evolved from gospel songs "I will overcome" and "I will be all right" from the turn of the century into "We Will Overcome" during tobacco labor strikes in the 1930's and 1940's.(8) The song was adapted once again in the 1960's as youth infused the civil rights movement. Pete Seeger recounts that "[i]n Tennessee in 1960 Guy taught [We Shall Overcome] to black students. They didn't hesitate an instant. They gave it the Motown Beat."(9)

How copyright deters social movements

We have argued that adaptation, both lyrically and musically, is a factor in the success of music to encourage collective action. Guthrie, Seeger and others had a large public domain of songs to draw upon from both the country and African-American traditions in crafting their songs. However, there was a concern even at that time that copyright could deter the civil rights movement and be used in support of Jim Crow: "at a time when a growing Negro people's cultural movement is rediscovering its own heritage and proudly and beautifully re-creating it, [pirates] have set barriers in the path of this development by attempting to take this music out of the area of the "public domain" and making it impossible for the Negro people to sing their own songs without getting (and paying for) permission from the white copyright owners."(10) The problem that Mr. Silber was afraid of in 1952 is more dire today because of the greatly expanded copyright term. Now, copyright controls the current generation's familiar songs so that these songs are impossible, absent permission, to adapt to a specific social movement.

At a minimum, copyright puts a burden on social organizers to limit their musical expression to newly created or very old songs. According to recent supreme court language,(11) when free speech and copyright come into conflict the protections of fair use(12) and the idea expression dichotomy(13) provide protection for political First Amendment values. This essay concludes by arguing that both of these copyright exceptions do not protect from the harm done to social movements.

Idea expression dichotomy

The idea expression dichotomy protects free speech expressive interests by limiting copyright protection to the expression, not the idea of the protected work. However, in the context of social or political movements this is not enough. For example, "We Shall Overcome" has a power and place in our history which could not be be replicated were a movement to attempt to use a different song, not currently under copyright, that expressed the same idea. Also, when copyright forces social movements to create a new tune, it is more difficult to motivate the collective to learn the tune and the words, and thus, the message. Thus, in political speech geared at bringing people together behind a social cause, it is not only the idea, but also the expression that should be protected by the first amendment.

Fair use

Fair use is a defense to a copyright infringement. Its application has multiple non-determinative factors, and litigation over fair use is expensive and risky.(14) Even if political use of songs is found to be fair use after trial, copyright raises barriers not protected by fair use. The problem is that copyright can prevent art from becoming a part of culture that can be drawn upon in the future for political speech. For example, in 1996 the Girl Scouts of America were asked by ASCAP to pay royalties for, among other things, performing the Macarena at camp.(15) Will the Macarena be a future vehicle of political speech? Probably (and hopefully) not. But enforcing copyright upon small groups of people singing and dancing the Macarena together lowers the odds that it could be used under 'fair use' in the future, as people may not know it or be taught it for fear of lawsuit. Thus, the chilling effect on free speech can occur before the 'fair' political use is ever contemplated.

Notes

1 : Woody Guthrie, Untitled, Woody Guthrie Archives, Notebooks Series 1, Item 22, Page 14.

2 , 8 : Ron Eyerman, Music in Movement: Cultural Politics and Old and New Social Movements, 25 Qualitative Sociology 443 447 2002.

3 : Id.

4 : Karla Duhar, Local 683 Sings in Jail, People's Songs, May 1947 at 2.

5 : Odetta, Odetta Remembers, BBC Four, February 6, 2009.

6 : Ed Cray, Ramblin' Man: The Life and Times of Woody Guthrie, 165 2002.

7 : Woody Guthrie, Folk Songs are on Their Way In, in Woody Guthrie Archives, Manuscripts Series 1, Box 7, Folder 7, Item 6.

9 : Refuse to stand silently by 227 (Elliot Wigginton ed., 1991).

10 : Irwin Silber, Song Pirates Fly Skull-and-Bones Over Tin Pan Alley, Sing Out!, June 1952 at 6.

11 : Eldred v. Ashcroft, 537 U.S. 186, 190 (2003) ("In addition, copyright law contains built-in First Amendment accommodations. First, 17 U.S.C. § 102(b), which makes only expression, not ideas, eligible for copyright protection, strikes a definitional balance between the First Amendment and copyright law by permitting free communication of facts while still protecting an author's expression. Second, the “fair use” defense codified at § 107 allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes." (internal citations omitted)).

12 : 17 U.S.C. § 107

13 : See, 17 U.S.C. § 102(b)

14 : See Lawrence Lessig, Free Culture 108-111 (2004) (Recounting a story of clear fair use that was removed from a movie due to fear of lawsuit)

15 : Elisabeth Bumiller, Ascap Asks Royalties From Girl Scouts, and Regrets It, New York Times, December 17, 1996.