The Blues and Copyright

SSRN is a wonderful repository of articles. A 51 page article was posted on it two weeks ago about famous blues performer Robert Johnson, copyright, and the ways in which different cultural traditions impact on the nature of creativity and copying. The article is called "Borrowing the Blues: Copyright and the Contexts of Robert Johnson." The author is Professor Olufunmilayo Arewa of Northwestern University Law School. The article is available here.

Johnson's influence on white rockers is well documented, but Professor Olufunmilayo notes: "The elevation of Robert Johnson as blues exemplar has involved significant diminution of the role of shared and collaborative aspects of blues creation and performance in Johnson's works. Robert Johnson's status has in turn been accompanied by more favorable outcomes for his estate from a copyright perspective." Therein nicely captured is a tension between copyright's professed goals and how it may work out in practice. She notes too a tension between Johnson's actual musical practice and his later, posthumous characterizations, observing: "The collaborative nature of blues musical composition does not lend itself very well to Romantic author characterizations. In blues practice, the combination of performers crafting material from a collaborative tradition is a difficult one from the perspective of current assumptions about creation in copyright." (page 12).

Professor Olufunmilayo helpfully reviews the litigation involving Johnson's works, ABKCO Music, Inc. v. LaVere. 217 F.3d 684 (9th Cir. 2000). Defendant LaVere had reached an agreement with Johnson's surviving heir, Carrie Thompson, with a 50-50 split. The suit was a DJ action. Since Johnson's recordings were on piano rolls, the White-Smith rule that copy was made applied, and thus the court correctly held that section 303(b), regarding unpublished works governed, resulting in the works remaining under copyright. This was not the last suit involving Johnson: 15 year litigation culminating in 1998 in Mississippi courts resulted in Claude Johnson being declared the illegitimate son of Robert, resulting in entitlement to over $1 million dollars.

The tangled web of copyright law and personal histories is interesting, but here is my question about the article: there are great discussions of the collaborative nature of blues and the tensions with a Romantic view of copyright, but I don't see how this is tied in to the litigation of establishing Johnson estate's rights: the records made and copied were copied verbatim, and no question of the scope of Johnson's creativity was at issue. In any event, an interesting look at a great musician.