Hi everyone,
Here is a post for the musicians amongst us.
In class we discussed the role of copyright and DJ performance usage of copyrighted materials, and how the market incentive for producers of music to want their music played in clubs may be a major factor in why we don’t commonly see copyright claims for infringement when a DJ uses copyrighted material in a club performance. This got me thinking about my favourite musical genre, jazz, and how copyright functions in this context. Modern students of jazz music have access to the entire history of jazz music, and there are certain famous stylings and phrases that are commonly repurposed and reproduced in jazz solos. For context, a jazz solo in an abstract sense consists of a musician making decisions about what specific notes, or melodies, to play over a background of imposed harmony, the chordal structure which underlies the form of the song that is being played. An example of a well known chord progression would be the 1-4-5 progression that is ubiquitous throughout rock and roll and blues, or the 3-6-2-5-1 chord progression that provides the structure for many pop songs – Professor Festinger mentioned the famous “4 Chord Song” by Axis of Awesome, linked here https://www.youtube.com/watch?v=5pidokakU4I&ab_channel=random804, which illustrates this in a humourous and impactful way.
While a jazz chord progression is often more complicated, there are still common series of chords which appear over and over again throughout the music. The 2-5-1 progression is perhaps the most discussed of these. This recurrent structure leads jazz musicians to study and develop conceptual approaches to performing their improvised soloes over these progressions, and there are easily recognizable melodies, or ‘licks’, that have been deployed by almost every jazz musician in some form or another over these progressions in their performances. The most famous of these has been coined “The Lick” in the jazz community – you can hear several examples of its use across multiple genres here: https://www.youtube.com/watch?v=krDxhnaKD7Q&ab_channel=AlexHeitlinger. Its origins are not clear, although it has been used in music dating back over 100 years – you can peruse an interesting Reddit discussion of its origins here: https://www.reddit.com/r/Jazz/comments/2djmol/1_2_3b_4_2_7b_1/. Chet Baker may have been the first to introduce to it modern jazz, and you can read a short article on its use here: https://pianowithjonny.com/piano-lessons/the-lick-jazz-meme-the-complete-guide/.
Using these types of phrases is viewed differently by listeners depending on the way in which it is used – if deployed uncreatively, without thought or some alteration to make it unique, it can seem stilted and a sign of an amateur player. If used in a creative way, perhaps with some unique alteration in combination, it is perceived more as a nod to the greater jazz tradition, or a recognition of its power in the history of jazz improvisation, or as a salute to the players who may have used it before in an influential recording. This phenomenon goes far beyond the one “Lick” – it applies also to more esoteric jazz melodies and famous lines that have been deployed in solos by jazz artists in well known recordings. The key differentiating factor in whether it is perceived as amateurish or respectful is whether it sounds like the artist who uses it is passing it off as their own improvised work, or whether they are deploying it more as a homage. When a known phrase is repurposed in a respectful way, it is termed a ‘quote’.
From a copyright analysis perspective, the interesting aspect of this is that while jazz solos are supposed to be fundamentally improvisational, known idioms and melodies seep into performers’ solos in ways which straddle the line between direct reproduction, mere copying, and contributing the ‘something more’ through the exercise of skill and judgement. Furthermore, the copyright in the songs which provide the underlying structure for the improvisation comes into tension with the artists’ rights who perform the improvisation – I have attached here my short paper on this topic, “Bebop and Copyright”.
Communications Law