Conference Agenda

As Kevin J Greene (1999), Olufunmilayo B. Arewa (2006), and others argue, copyright law does not always serve the musical creativity engendered in Black vernacular genres. Within the industry, music publishing offers a vivid portrait of how this collaborative and intertextual creativity confounds a colonial legal system based on ownership of discrete works. Based on my observations as a participant-observer working in music publishing, this paper argues that copyright is an important forum for discussions on racial justice. Through three case studies from hip-hop, Jamaican music, and jazz, I explore how the use of earlier musical material, collaborative music making, and an emphasis on improvisation impede the smooth functioning of copyright and make it difficult for artists to register their claims and be compensated for their work.

The first case study examines the permutations of a “riddim,” a term used to describe the instrumental accompaniments of reggae, ska, and rocksteady songs. I trace the “Full Up” riddim from its initial 1968 version, through several permutations to its use in “Pass the Dutchie” (1982). My second case study spans reggae and hip-hop by exploring how Jamaican organist Jackie Mittoo received a writer’s credit on Ja Rule’s “New York” (2000) even though none of his music can be heard in the gangsta rap song. Finally, I examine a series of cover versions and samples (digitally manipulated segments of pre-recorded songs or sounds), from Pharoah Sanders’s “The Creator Has A Master Plan” (1969) to Das EFX’s “Real Hip-Hop” (1995). Disputes regarding authorship claims in complex cases like these frequently cause songs to go into conflict at the performing and mechanical rights organizations that ensure artists are paid when their songs are broadcast, sold, or streamed. Authorship counterclaims can be resolved between the artists and publishers— amicably or via a legal settlement—but other times they must be litigated. I have observed a disproportionate number of such conflicts in the Afro-diasporic genres of reggae, jazz, and hip-hop. Copyright was created to reward creativity; however, Eurocentric, colonial ideas of what constitutes creativity often prevent Black musicians from enjoying its rewards and protections.

In 1970, Columbia Records remastered Bessie Smith’s complete catalog for reissue. Although the reissues were a financial success, Smith’s heirs saw only a pittance from them. That was because Smith signed flat-fee contracts with Columbia during her 1920s heyday, which entitled neither her nor her heirs to royalties on records sold. This was in contrast to Columbia’s contemporary White stars, who often received ample recording royalties. In 1976, Smith’s adoptive son Jack Gee, Jr. filed federal suit against Columbia, in what was likely the first-ever attempt to litigate “intellectual property reparations” in the U.S. Not only did Gee allege that the contracts had violated Smith’s civil rights, and under a theory of “continuing harm,” his own civil rights. Gee also asserted that the reissues, which Columbia published without the estate’s consent, contravened the estate’s rights in the sound of Smith’s voice. In Gee v. CBS (1979), the Eastern District of Pennsylvania dismissed the case in its entirety.

Surprisingly, given Smith’s stature and the case’s lessons for the history of U.S. music’s racialized political economy, Gee has gone without comment in the musicological literature. This paper begins to plug that gap, by examining the litigation via the thematics of historical haunting and intangible possessions familiar from reparations scholarship. First, I scrutinize the Gee court’s refusal to intercede in what it called “ancient contract actions.” Offering evidence that Gee was litigated as a dry run for a class action suit on behalf of similarly situated Black recording artists, I suggest that this informed the court’s determination to keep the 1920s “race records” industry’s past dead and buried. I then turn to the estate’s contention that the sound of Smith’s voice was a form of property that had been transmitted posthumously to the estate. Cutting against our usual intuitions on this issue, commodification became a precondition for reparative justice in Gee. The rhetorical investment of “property” in the sound of the voice became an agent of the “intermundane” (Stanyek & Piekut 2010), bridging life and death in an attempt, albeit failed, to symbolically “repossess” the deceased Smith of her own voice.

In the 1980s, major labels pressured artists to conform to the musical dispositions of the people who determined content for the two major venues for music promotion: commercial radio stations and the rapidly expanding number of music video networks, most notably MTV. These industries controlled both the popularity and content of popular music styles; attuned to programmers’ sonic preferences, artists created content specifically aimed at these promotional channels.

This was indeed the case for rap music, the genre that transformed over the course of this decade from a regional, minority subculture into an integrated part of the mainstream music industry, widely consumed by people of all races and ethnicities across the United States. Chroniclers of rap’s history have often focused on MTV’s role in launching rap into the mainstream, as its cable show Yo! MTV Raps introduced the genre to white suburban audiences in the United States during the late 1980s. But scholars and journalists examining rap’s transformation from the margins to the mainstream have overlooked the crucial role of the commercial radio industry, whose broadcasts were heard by over 90 percent of people living in the United States.

In this paper, I evaluate the commercial radio industry’s influence on the genre during the 1980s. My analysis of radio trade journals, playlists, and promotional materials reveals that rap artists during this decade made music specifically aimed towards Top 40 radio station audiences, catering towards the white women in their twenties and thirties and young people who listened to these stations. Often in response to label pressure, artists mixed rap with the sounds of pop and other genres played on Top 40 stations, creating radio-friendly music that facilitated their bids for mainstream success. Ultimately, this examination of the role of radio stations in making rap mainstream reveals the role of mass media on genre formation, and prompts musicologists to consider how commercial pressures influence musical production.