Do New and Atypical Works Deserve Protection?
Edited by Enrico Bonadio and Nicola Lucchi
Chapter 8: Music improvisation and copyright
The recording of Keith Jarrett’s ‘Köln Concert’ album in 1975 is a prominent example of how a performing art such as music can allow skilled artists to create original and highly regarded compositions without having to rely on fixed musical materials or texts. The chapter explains why copyright systems have ended up disfavouring extemporaneous authorship, in spite of an international legal framework that is strongly protective of authors’ rights. It is mainly for historical reasons that the notion of musical ‘work’ ended up being defined on the sole grounds of notation, with the progressive extension of the copyright protection originally conceived for books and other literary works to musical writings, fixations and sound recordings. The chapter relies on examples of music works and sound recordings to show that improvisers can acquire an unconventional type of copyright – consisting of exclusive or remuneration rights granted to authors and performers of the music they play – on condition that their improvised pieces are original and, in certain jurisdictions, fixed in a tangible medium. However, as things stand, copyright law is more of an obstacle than a source of economic incentives and reward for musicians. Taking jazz music as an example of appropriation art based on transformative use of ‘standards’ embodied in collections such as the ‘Real Book’ and the ‘American Songbook’, the chapter critically evaluates – from a comparative perspective – the impact of copyright in pre-existing works on the freedom of improvisers to quote, elaborate and transform such works and to be credited and earn remuneration for their creative contributions. While considering the pros and cons of implementing copyright paradigms in the realm of music improvisation, the chapter concludes that a broader understanding of musical authorship, which also encompasses performative aspects of composition, and a higher consideration for autonomy and originality of improvised music based on pre-existing works would ensure a more adequate incentive and reward of creativity relying on improvisation techniques.
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