That should give us pause. I return to the ideas of the Jefferson Warning from Chapter 2 and the Sony Axiom from Chapter 4. Copyright is not an end in itself. It has a goal: to promote the progress of cultural and scientific creativity. That goal requires rights that are less than absolute. As Jessica Litman points out, building in the intellectual s.p.a.ce is different from building in the physical s.p.a.ce. We do not normally dismantle old houses to make new ones. This point is not confined to music.

Earlier I quoted Northrop Frye: "Poetry can only be made out of other poems; novels out of other novels. All of this was much clearer before the a.s.similation of literature to private enterprise."17 The question is, how big are the holes we need to leave in the private rights? How large a commons do we need to offer to future creators?

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Ray Charles's creation of "I Got a Woman" is only one case. By itself, it proves nothing. Yet, if we find that the seminal, genre-creating artworks of yesteryear would be illegal under the law and culture of today, we have to ask ourselves "is this really what we want?" What will the music of the future look like if the Clara Wards and Will Lamartine Thompsons of today can simply refuse to license on aesthetic grounds or demand payment for every tiny fragment? Tracing the line further back, it is fascinating to wonder whether gospel, blues, and jazz would have developed if musical motifs had been jealously guarded as private property rather than developed as a kind of melodic and rhythmic commons. Like most counterfactuals, that one has no clear answer, but there is substantial cause for skepticism. If copyright is supposed to be promoting innovation and development in culture, is it doing its job?

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AN INDUSTRY OF GOLD DIGGERS?

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Fifty years after "I Got a Woman" was written, Kanye West released "Gold Digger" on the alb.u.m Late Registration. Mr. West is an interesting figure in rap. At first he was shunned because his clean-cut looks and preppy clothing ran against the gangster image that often dominates the music. It is just hard imagining Mr. West delivering a line like Rakim's "I used to be a stick-up kid, so I think of all the devious things I did" with a straight face. (Still less "Stop smiling, ain't nothin' funny, nothing moves but the money.") Perhaps partly as a result, his lyrics are oddly bipolar in their views about exaggerated masculinity and the misogyny that sometimes accompanies it.

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For the song, Mr. West recruited Jamie Foxx, who had played Ray Charles in the movie Ray. Showing an impressive expanse of oiled chest, Mr. Foxx imitates Charles's style and the melody of "I Got a Woman" to provide the lyrical chorus to "Gold Digger." "I Got a Woman" anchors West's song. It provides its melodic hook.

It breaks up the rap with a burst of musical nostalgia. But Mr.

West's gold digger is very different from Ray Charles's woman friend. This woman does not give money when the singer is in need. She takes his money when he is in need and is a "triflin'

friend indeed." Mr. Charles had a friend who gave him tender morning loving. Jamie Foxx sings of a mercenary gold digger who digs on him. When Mr. West adds the rap verses to the song, we get a perfect caricature of such a person, uninterested in any man who is broke, dragging around four kids and an entourage, insisting all of them be entertained at her boyfriend's expense, and wielding unfounded paternity suits like a proprietary business method. Mr. West's repeated disclaimer "I ain't sayin'

she's a gold digger" is unconvincing, because both the words of the introduction and the implicit message of the rap tell us she is. We even get the absurd image of a man who is playing on the winning side in the Super Bowl but driving a Hyundai, so financially demanding is his girlfriend. At several points the song descends into ludicrous--and perhaps conscious--self-mockery, as it explores the concerns of the rich African-American celebrity male. My favorite line is "If you ain't no punk, holler 'We want prenup!!' " The audience obliges. It sounds like a.s.sertiveness training for show business millionaires.

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It would be hard to get a feminist role model out of either "I Got a Woman" or "Gold Digger." One offers the feminine virtues of modesty and fidelity, but magically combines them with wantonness where the singer is concerned and an open checkbook.

The other is a parody of the self-a.s.sertive economic actor, as rapacious as any multinational, who uses her s.e.xuality for profit. Put them together and you have bookends--male fantasy and male nightmare. Was that Mr. West's point? Perhaps. The song itself takes several sly turns. The gold digger d.o.g.g.i.ng Mr. West is used as part of a homily to black women on how to treat their (noncelebrity) black men. They should stick with their man because his ambition is going to take him from mopping floors to the fryers, from a Datsun to a Benz. It seems that Mr. West is getting a little preachy, while slamming the actual social mobility available to black men. Moving from floor cleaning to frying chicken is not actually going to provide a Mercedes. But he immediately undercuts that tone twice, once by acknowledging the boyfriend's likely infidelity and again by saying that even if the black woman follows his homily, "once you get on, he leave yo' a.s.s for a white girl."

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Mr. West has a tendency to make sudden turns like this in his lyrics--ironically upsetting the theme he has just set up. So it is not hard to imagine that he deliberately used a fragment of Charles's song, not just because it sounded good but to contrast the image of the fantasy woman from Charles's 1950s soul, who is faithful, sensual, and always willing to offer a loan, with an image from today's rap--s.e.xually predatory and emasculating women who are uninterested in men except as a source of money. Even the retro cover of the single, with its 1950s-style pinup drawing of a white model, seems to draw the connection. Did he use Charles's song precisely because of these clashing cultural snapshots? Perhaps, or perhaps he just liked the tune. In any event, the contrast is striking. When it was released, Charles's song was seen as a sacrilegious depiction of sensuality and the woman was decried as a harlot. Compared to the woman in Mr.

West's song, she sounds like a Girl Scout. It is also a little depressing. Ray Charles was neither an egalitarian metros.e.xual nor a Prince Charming where women were concerned--anything but.

But as I said before, you do get a sense that he liked women--however unrealistic or two-dimensional their portrayal. It is hard to get that sense from "Gold Digger."

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Was Mr. West legally required to ask permission--and pay, if necessary--to use a fragment of "I Got a Woman" for his chorus?

The longest single piece of borrowing occurs in the introduction: twenty-six words and their accompanying music.

"She takes my money, when I'm in need, oh she's a triflin'

friend indeed. Oh she's a gold digger, way over town, who digs on me." As I pointed out, the lyrics from Charles's song present a very different story. "She gimme money / when I'm in need / Yeah she's a kind of / friend indeed / I've got a woman / way over town / who's good to me." But even if the message is the opposite, the musical borrowing is direct. It is also extensive.

During Mr. West's rap, the entire background melody is a loop of Jamie Foxx singing the Ray Charles-inspired melody in the background. During the song, Mr. Foxx returns to words that are closer to Charles's original: "She gimme money, when I'm in need," a refrain that is conspicuously at odds with the woman being described by Mr. West. That eight-bar loop of a Ray Charles melody runs throughout Kanye West's song.

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Mr. West is very successful, so the fragment of the song was "cleared"--payment was made to Charles's estate. It is fascinating to think of what might have happened if Charles's heirs had refused. After all, one could see West's song as a crude desecration of Charles's earlier work, rather than a good- humored homage. Since this is not a "cover version" of the song--one which does not change its nature and thus operates under the statutory licensing scheme--Charles's heirs would have the right to refuse a licensing request. Unlike Clara Ward, it is clear that Charles's heirs have the legal power to say no, to prevent reuse of which they disapprove.

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Was West legally required to license? Would all this amount to a copyright violation? It is worth running through the a.n.a.lysis because it gives a beautiful snapshot of the rules with which current law surrounds musical creation.

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Today, a song is generally covered by at least two copyrights.

One covers the musical composition--the sheet music and the lyrics--and the other the particular sound recording of that composition. Just as there are two kinds of copyrights, so there are at least two kinds of borrowings that copyright might be concerned with. First, one musical composition might infringe another. Thus, for example, a court found that George Harrison "subconsciously" based his song "My Sweet Lord" on the melody of "He's So Fine" by the Chiffons.

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How much does it take to infringe? That is a difficult question.

The law's standard is "substantial similarity," but not every kind of similarity counts. Minimal or de minimis copying of tiny fragments is ignored. Certain styles or forms have become standards; for example, the basic chord structure of the twelve- bar blues or the habit of introducing instruments one at a time, from quietest to loudest. There are only so many notes--and so many ways to rearrange them; inevitably any song will be similar to some other. Yet that cannot mean that all songs infringe copyright. Finally, even where there is substantial similarity of a kind that copyright is concerned with, the second artist may claim "fair use"--for parody or criticism, say. Copyright law, in other words, has tried to solve the problem with which I began the chapter. Because much of musical creativity is organic and collective and additive, because it does use prior musical expression, some copyright decisions have tried to carve out a realm of freedom for that creativity, using doctrines with names such as scenes a faire, merger, and fair use. This is yet another example of judges trying to achieve the balance that this book is all about--between the realm of the protected and the public domain--recognizing that it is the balance, not the property side alone, that allows for new creativity.

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The second type of potential infringement comes when someone uses a fragment of the earlier recording as part of the later one, actually copying a portion of the recording itself and using it in a new song. One might imagine the same rules would be applied--de minimis copying irrelevant, certain standard forms unprotected, and so on. And one would be wrong. In a case called Bridgeport Music, which I will discuss in a moment, the Court of Appeals ruled that taking even two notes of a musical recording counts as potentially actionable copying. Where recordings are concerned, in other words, there is almost no cla.s.s of copying so minimal that the law would ignore it. This is a terrible decision, at least in my opinion, likely to be rejected by other Circuits and perhaps even eventually by the Supreme Court. But for the moment, it is a case that samplers have to deal with.

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How does Kanye West fare under these rules? He may sample from the actual recording of Mr. Charles's song. It is hard to tell.

He certainly copies portions of the melody. That means we have to look at the copyright in the musical composition--the words and the music of "I Got a Woman." For a copyright infringement, one needs a valid copyright and evidence of copying, the amount copied needs to be more than an insignificant fragment, substantial similarity is required, and the similarity has to be between the new work and the elements of the original that are actually protected by copyright. Elements taken from the public domain, standard introductions, musical cliches, and so forth, do not get included in the calculation of similarity. Finally, the copier can claim "fair use"--that his borrowing is legally privileged because it is commentary, criticism, parody, and so on.

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Does Charles, or his record company, have a valid copyright in the musical composition? One huge problem in copyright law is that it is remarkably hard to find this out. Even with the best will in the world, it is hard for an artist, musician, or teacher to know what is covered by copyright and what is not.

Nowadays, all works are copyrighted as soon as they are fixed, but at the time "I Got a Woman" was written one had to include a copyright notice or the song went immediately into the public domain. The Copyright Office database shows no copyright over the words and music of "I Got a Woman." There are copyrights over a variety of recordings of the song. If Mr. West is using a fragment of the recording, these would affect him. But the melody? It is possible that the underlying musical composition is in the public domain. Finding out whether it is or is not would probably cost one a lot of money.

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Suppose that Mr. Charles has complied with all the formalities.

The words and music were published with a copyright notice. A copyright registration was filed and renewed. Does Mr. West infringe this copyright? That is where the discovery of the Bailey Gospel Singers recording is potentially so important.

Charles only gets a copyright in his original creation. Those elements taken from the public domain (if "I've Got a Savior"

was indeed in the public domain) or from other copyrighted songs do not count. The irony here is that the elements that Kanye West borrows from Ray Charles are almost exactly the same ones Ray Charles borrows from the Bailey Gospel Singers. "I've got a savior, Oh what a savior" becomes "I got a woman, way over town"

becomes "There's a Gold Digger, way over town." And of course, the music behind those words is even more similar. When The Legendary K.O. reached for Kanye West's song in order to criticize Mr. Bush, they found themselves sampling Jamie Foxx, who was copying Ray Charles, who was copying the Bailey Gospel Singers, who themselves may have borrowed their theme from an older spiritual.

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GEORGE BUSH DOESN'T CARE . . .

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Five d.a.m.n days, five long days And at the end of the fifth he walking in like "Hey!"

Chilling on his vacation, sitting patiently Them black folks gotta hope, gotta wait and see If FEMA really comes through in an emergency But n.o.body seem to have a sense of urgency Now the mayor's been reduced to crying I guess Bush said, "N------'s been used to dying!"

He said, "I know it looks bad, just have to wait"

Forgetting folks was too broke to evacuate N------'s starving and they dying of thirst I bet he had to go and check on them refineries first Making a killing off the price of gas He would have been up in Connecticut twice as fast . . .

After all that we've been through nothing's changed You can call Red Cross but the fact remains that . . .

George Bush ain't a gold digger, but he ain't f--ing with no broke n------s "George Bush Doesn't Care About Black People," The Legendary K.O.

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The song "George Bush Doesn't Care About Black People" was an immediate sensation. Hundreds of thousands of people downloaded it. Within days two different video versions had been made, one by Franklin Lopez and another by a filmmaker called "The Black Lantern." Both synchronized the lyrics of the song with news clips of the disaster and unsympathetic footage of President Bush apparently ignoring what was going on. The effect was both hilarious and tragic. The videos were even more popular than the song alone. The blogosphere was fascinated--entries were posted, e-mails circulated to friends with the usual "you have to see this!" taglines. In fact, the song was so popular that it received the ultimate recognition of an Internet fad: the New York Times wrote a story on it, setting the practice in historical context.

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In the 18th century, songwriters responded to current events by writing new lyrics to existing melodies. "Benjamin Franklin used to write broadside ballads every time a disaster struck,"

said Elijah Wald, a music historian, and sell the printed lyrics in the street that afternoon. This tradition of responding culturally to terrible events had almost been forgotten, Mr.

Wald said, but in the wake of Hurricane Katrina, it may be making a comeback, with the obvious difference that, where Franklin would have sold a few song sheets to his fellow Philadelphians, the Internet allows artists today to reach the whole world.18 80

Mr. Nickerson's and Mr. Randle's song started with Kanye West's words--taken from the fundraiser with Mike Myers. "George Bush doesn't care about black people." From there it launched into the song. The background melody comes almost entirely from a looped, or infinitely repeated, version of the hook that Kanye West and Jamie Foxx had in turn taken from Ray Charles: "She gimme money, when I'm in need. I gotta leave." Against that background, The Legendary K.O. provide their profane and angry commentary, part of which is excerpted above, with a chorus of "George Bush don't like black people," in case anyone had missed the point.

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The videos differ in the issues they stress. Franklin Lopez's movie is, rather pointedly given its theme, just black and white. He uses ornate captions pages, reminiscent of silent film from the 1920s, to make political points against the background of the song and the news footage. As the captions read "Katrina Rapidly Approaches," we cut to a shot of the hurricane. "The President Ponders on What to Do." We have a shot of Mr. Bush playing golf. "I Think I'll Ride This One Out." Mr. Bush is shown relaxing on a golf cart, juxtaposed against pictures of African-Americans wading through the floods. The captions add, as an afterthought, "And Keep Dealing with the Brown People."

(Pictures of soldiers shooting.) When FEMA's Michael Brown is shown--at the moment when Bush said "Brownie, you are doing a h.e.l.l of a job"--the captions comment mockingly, "The Horse Judge to the Rescue."

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Mr. Lopez's video obviously tries to use The Legendary K.O.'s song to make larger political arguments about the country. For example, it a.s.serts that "in 2004 Bush diverted most of the funds for the levees to the war in Iraq." Scenes reminiscent of a Michael Moore doc.u.mentary are shown. There are pictures of the Iraq war, Halliburton signs, and shots of the president with a member of the Saudi royal family. The captions accuse the president of showing insensitivity and disdain to racial minorities. One summarizes the general theme: "Since he was elected president, George Bush's policies have been less than kind toward Africans and Hispanics." Issues ranging from the response to the Darfur ma.s.sacres, No Child Left Behind, and the attempted privatization of Social Security also make their appearance. The video concludes by giving the donation information for the Red Cross and saying that we are "onto"

Bush. A picture of a Klansman removing his hood is shown, with the image manipulated so that the face revealed is Mr. Bush's.

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The Black Lantern's video is just as angry, and it uses some of the same footage, but the themes it picks up are different. It starts with a logo that parodies the FBI copyright warning shown at the beginning of movies: "WARNING: Artist supports filesharing. Please distribute freely." That dissolves into a picture of Kanye West and Mike Myers. West is speaking, somewhat awkwardly as he goes "off script," and at first Mr. Myers is nodding, though he starts to look increasingly worried. West says, "I hate the way they portray us in the media. You see a black family it says they are looting. You see a white family, it says they are looking for food." Finally, West says "George Bush doesn't care about black people" and the camera catches Myers's mute, appalled reaction. Then the song begins. The film cuts repeatedly between a music video of Mr. Foxx as he sang the lines for "Gold Digger" and the news coverage of the debacle in New Orleans. At one point the music pauses and a news anchor says, "You simply get chills when you look at these people. They are so poor. And so black." The song resumes. Here the message is simpler. The media coverage is biased and governmental attention slowed because of negative racial stereotypes and lack of concern about black people.

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