Nancy Guy Paper
The paper by Nancy Guy, an Ethnomusicologist and Professor
currently affiliated with the University of California San Diego, addresses the
ethics and problems with the use of copyright laws of ethnographic materials,
specifically field recordings. Guy uses the example of one specific case of a
lawsuit involving the ownership of Taiwanese Amis Song recordings of Kuo Ying-nan
and his wife Kuo Shin-chu. The paper addresses the fact that although there are
international copyright treaties there is no such as thing as an international
copyright. Guy mentions three primary criteria described by Shreylle Mills, a
lawyer, in order for a piece to be able to claim copyright: a
specific “author” which is defined as the “originator”, a tangible
form/physical rendering, and it must be “original”. Without any one of them, the work to falls into public domain making it
free to be used by anyone. These existing copyright laws and criteria make it
impossible for pieces that stem from those that are passed down through an oral
tradition and other means of transmission that have been passed down from
generation to generation to be copyrighted.
Guy mentions that the field work like that in
ethnomusicology of making recordings places the music in a very vulnerable state.
Because these works don’t meet the copyright criteria, they can be used by
anyone for profit without crediting the source. The case she describes in thorough
depicts the lawsuit between Kuo’s, and Michael Cretu (“Enigma”) who profited
from the song “Return to Innocence” in his production and CD, in which about two minutes of his song
consists of the Kuo’s singing the Amis song. Kuo's also sued the other parties over the use of this recording. Due to the fact that the song is a traditional
song that was passed down across time and the Kuo’s cannot be titled as the
author, or originator, and a physical form of the piece cannot be found the
case could not be claimed easily and many more hoops had to be jumped through
before any kind of a settlement could even be thought of. Their voices and
recordings were taken by part of a project for the Folk Song Collection
Movement launched by an ethnomusicologist (Hsu Tsang-houei). The songs were
released in a series of albums by the Taipei-based Number One Record Company,
as well as recording of a performance in France by the Maison des Cultures du
Monde, a Festival which later released a
CD of these recordings. Cretu (“Enigma”), then discovered these recordings from
these releases. From here Cretu paid the Maison des Cultures du Monde for use
of samples.
Due to these non-existent international copyrights, or
copyrights that do not cater to some traditional musics, the aboriginal song
(and the non-credited Kuo’s) were portrayed as someone else’s and profited from
without proper credit and acknowledgement. One point of this paper isn't just
the absence of these copyright needs, but is the use of teachings about
copyright within the field of ethnomusicology. The ethnomusicologist, as
described at one point in this paper is “obligated” to preserve the music and
it’s cultural significance/rights. Upon reading paper it raised questions,
especially one I keep asking myself, and that is if its possible to properly
copyright fieldwork recordings? What laws could be made/adjusted to assure the
royalties go the correct place (persons/group/community…what kind of royalties…all
monetary??)? How could both parties be equally represented? The profits at one point like mentioned in the paper could go to
the ethnomusicologist who could claim ownership as the one with the most
concrete evidence of the work (the recording), but how do you assure that a
means of wanted profit goes towards those who supplied the recording? And what
if any profit would benefit most? How about the use of contracts? Contracts are
an interesting concept in which someone could be held to their word but then
again it could prove very challenging due to barriers such as language and understanding
between cultures (the collector’s and the contributor’s). I hope I haven’t
summarized the paper to much, however these are important points that raised
the most ideas and thoughts for me while reading.
-Ashley D. Guthrie
While reading the article, I was thinking a contract would probably be the best solution. The problem with the rules for a copyright that Mills describes is the same problem we faced with universals -- it's a much too rigid system to encompass so many different things. The way "we" see/handle a lot of music around us isn't exactly how others take in music, and forcing copyright laws on some music can lead to problems like we see here. A contract would be much more flexible than copyright laws, and if enforced, can hold Hsu and other ethnomusicologists more accountable for what they do with the music since there's documented proof of whatever was agreed upon. Plus, it seems like there were a lot of problems in the lawsuit with who had rights over what and how much one could do with what they had, especially with Maison des Cultures du Monde selling Cretu rights to use the music. I think presenting a contract would have simplified the lawsuit by pushing things in the favor of the Kuos a lot sooner... I'm not too familiar with the nuances of the law and court system though.
ReplyDeleteI thought it was interesting how it read in the article that they didn't even recreate/re-record the Kuo's song. I would think using someone's actual voice in a recording would grant them some sort of rights. If you appear in a crowd in a movie you have to sign a consent from or they can't show you on screen (theoretically). I'm surprised the fact that he did not somehow document the rights to his voice for commercial use did not offer some sort of legal ground.
ReplyDeleteAs I was reading the article I thought the same thing that Alex did above. If you are using something directly from another recording I believe there must be some sort of compensation, I don't know if it should necessarily be monetary or how much it should be if it is, but I know that for example when I went to the advanced screening of evil dead at AMC La Jolla they made us sign a waiver stating that we could be used for film purposes. I know that if I would have seen myself in a commercial or something for Evil Dead without giving consent I would have been upset.
ReplyDeleteThe question of profit via ownership rights is similar to what McAllester experienced with his showing of the film capturing the Navajo Blessingway Ritual. McAllester did 'profit' from the viewings by charging a fee for the film, however, he sent these profits directly to the Mitchell family. What makes this differ in comparison to the Kuo's situation is that the ethnomusicologist 'owned' the archives in which he administrated them and mediated them for the family with their consent rather than just having the recordings published in an album as the situation with the Kuos occurred.
ReplyDeleteSince this emphasis on the preservation of the culture expressed through the studied culture themselves was not as strongly emphasized as it was for McAllester, the rules and regulations regarding the recordings became less strict and thus more open and "free to the public." I would have to agree with Kevin in that they could have perhaps acquired a contract that would allow them to have copyright, or at least a better footing in the legal battle. It is hard to apply ownership laws to something that one does not technically own in terms of song composition and whatnot, but when the song belongs to a culture and it is misused in a way that it should not be.
I think this is a topic that is prevalent in so many branches of music. Blues in particular has had major issues over ownership and copyright in the past. Since blues is mostly an oral tradition (at least it used to be), it is hard to pinpoint an originator of a song. To say that a song belongs to BB King or Buddy Guy, for example, would discredit those who taught them the music. Furthermore, when those songs were taken by mostly white rock and roll artists in the 60s and 70s, most failed to credit the "original" artists and failed to pay them their royalties. Some caved, but most went on to ignore paying royalties, or even citing the originators in the album/song information.
ReplyDeleteIn my opinion, the "original" authors should be credited and should be payed some type of royalties according to a contract that is signed prior to the release of the music containing to the work of the "original" artist. However, this method doesn't seem to be feasible for one main reason: MONEY. No artist would want to sign a contract that's consistently giving away part of their incoming profit. They would rarely if ever reach out voluntarily to do so. This is why it usually becomes a long-winded process taken to the courts with unsatisfactory resolutions.
The thing that seemed to bother me most in this article was that the Maison des Cultures du Monde did not take measures when Cretu approached them about using samples - instead, they heavily profited. While it is true that the concept of copyright is in trouble once oral traditions are considered, this was clearly the Kuos' version using their personal voices. I think the fact that it was recorded in the first place should have protected them. The least the Maison des Cultures could do was contact them and ask for permission or redirect Cretu to the work's source. While the songs are of an oral tradition, I think the idea that it was recorded should automatically count as copyright for the ARTISTS and not for the company who produced the CD.
ReplyDeleteThis combined with the obvious lack of any attribution in Cretu's CD shows a complete lack of respect for the source materials. Just because one pays a ton of money to use these recordings does not enable one to pass these off as his own.
I felt a similar indignation when I read this article. It seems to be a blatant exploitation of a people from an isolated & non-Western culture who probably did not have the initial means or foresight [why should they?] to take the legal action necessary to protect their rights. Had the Kuos been an established Western musical group they probably would have representation & people advising them, but Maison des Cultures du Monde probably knew that they could take advantage of this situation. There is a long history of underestimating & undervaluing the intelligence & rights of non-Western artists. They seem to be easy targets for money-hungry industries.
DeleteThis seems to relate to the issue of sampling that exists in Hip-Hop music, but in hip-hop at least many of the artists are the ones getting up in arms about their songs being sampled without consent [along with their producers]. There are certain protections [however vague] for these artists and yet for people like the Kuos, nobody sets up protections for them because they see an opportunity to take advantage.
I agree with what Alex and Manuel, which is essentially that there is an obvious ownership over a specific performance as opposed to there being a specific ownership over a song. I think the idea of using a contract is a pretty good idea, but as Ashley said, the difference in cultures understanding of music and the language barriers would definitely be a big problem in the use of contracts. I think understanding how the culture views its music is pivotal in how one should deal with the ethical and copyright issues that arise in any ethnography. Above all, it seems to me, that we should be respectful to the culture that we are studying and understand their views on ownership and compensation for music.
ReplyDeleteI also don't believe that all compensation should be monetary, in some ways, I think, that can be disrespectful to a musician. Our culture works under the assumption that everything has value and that we can approximate a monetary value to stand in for what we believe the value is. This, obviously, doesn't hold true for every culture and I think that, to some, that giving music a monetary value can be somewhat degrading to the music and the culture. The idea can easily become 'your culture is worth X amount of dollars to us' and that idea can easily create a hierarchy of musical cultures based on the assigned value.
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ReplyDeleteI agree that the use of contracts would be difficult especially dealing with issues overseas. I don't think they understood what laws we have here in America. I guess not a lot of people understand the copy write laws here either, but it would be a lot easier to find a lawyer that does as opposed to if you were in Taiwan. Likewise, we don't know how it works in Taiwan either. Additionally, they didn't predict something like this would happen. I also agree strongly with Brent that compensation cannot simply be monetary. I feel like there is a lot of value to having a name and reputation. Some people may be ok with being compensated, but we all know the value of reputation and being put out there. Having people recognize you for your talents and who you are may be far more rewarding than receiving money.
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