Wednesday, December 21, 2005

Early Musical Borrowing

In the 2 Live Crew case, the Supreme Court made a distinction between parody and satire. Because parody targets the original, it has a need, under fair use, to at least conjure up its target. Satire, defined as a broader, more socially, culturally, or politically-oriented spoof, was felt to not have the same need given that it is not directing its sole attention to a particular work. Satires are not precluded from fair use, but seemingly don't enjoy an initial leg-up that parodies have. There are other terms to connote a degree of appropriation from other works, but without a critical purpose. One such term is "imitation."

Lisa Pon explores imitation in Renaissance prints in her excellent 2004 book "Raphael, Durer, and Marcantonio Raimondi: Copying and the Italian Renaissance Print." The origins of parody also lie in imitation, and originally the term did not connote criticism or even merriment. This topic is explored in another 2004 book called "Early Musical Borrowing" edited by the improbably named "Honey" Meconi and for the very steep price of $95.

As a music major, I immersed myself in the music of the Renaissance Netherlands composers (like Ockeghem) as well as Italians like Palestrina, and Josquin de Prez, all of whom wrote dozens of "parody masses," masses that used secular music as an integral part of the polyphony. There were also cantus firmus and paraphrase masses that were also built on others' works. The borrowing was right up front, in the titles like "L'Homme arme" and Tavener's "Western Wind" mass. As Professor Meconi notes, "Borrowing is probably almost as old as music itself, and Western notated music is replete with examples from every time period."

Given this rich history, what is unusual is the underlying thesis of Professor Meconi's collection that "major questions" have arisen about "what constitutes borrowing, how we define the different types in use, what we call them, and why and how composers borrowed what they did. These topics have been the subject of a fierce and impassioned debate; this is not a field for the faint of heart."

Oddly, that makes me feel better when we mere lawyers try to sort out fair use according to labels: we're not alone in difficulties.


Anonymous said...

I know this is probably off the primary topic but could you give an example or two of satire that would be considered fair use?


William Patry said...


I think the 2 Live Crew case was a fair use satire, as well as Elsmere Music, Inc. v. NBC, 623 F.2d 252 (2d Cir. 1980).

Anonymous said...

The artistic tradition in both music and the visual arts of referencing the works of others and in many cases outrightly basing one's work on the work of others challenges all the romantic notions of authorship that form the moral premise of modern copyright law and most particularly the premise of Ms. Bono's life plus seventy term. The copyright industries clothe themselves in the garments of artist's rights and (in a delicious irony) leave all artists naked before the law without the very rights they require to create. While the artist's own balance as a maker and a user of copyrighted content has never really been reached in the law - - and much of copyright law never even considers the issue when it should while fair use in this context is woefully undeveloped and lacking in sophistication about the process of creativity - - the digital manipulations now available to artists will make the practicing art world increasingly integrated with "borrowings" as the law rushes headlong in the opposite direction with silly distinctions such as those found in the 2 Live Crew case.

Supreme Court Justices and members of Congress are not the best arbiters in defining artistic license and lawyers only make matters worse. Peer review is the only appropriate mechanism here. The best example may be the way in which the Writer’s Guild of America determines screen credit for the film and television industries. Without that mechanism, and assuming the copyright laws were used instead to resolve the authorship claims, virtually every film would be enjoined.

William Patry said...

In the literary field, Thomas Mallon's "Stolen Words" is a classic look, available in a 2001 paperback edition at

Anonymous said...

Thanks for the tip about the book on Italian prints, and for jostling my memory about Prof. Honey's book. I look forward to reading it.

Professor Burkholder's on-line bibliography of musical borrowing can be found at

I have posted observations on, or matter pertinent to, musical and literary borrowing in a number of places, for example
here here here here here here and here.

A recurring motif in my comments is that a shorter term of copyright than we presently are burdened with would be beneficial to the "progress of science" partly because it would allow borrowing from a wider range of earlier works.

Anonymous said...

Somehow the HTML for the link to Prof. Burkholder's bibliography got corrupted. The URL is

Anonymous said...

I was delighted to see my book recommended here, and wanted to add that the "parody masses" were sometimes called "counterfeit" masses in the period in which they were written. This use of the Latin term "contrafactus" and its vernacular cognates are discussed in a fascinating article by Peter Parshall, "Imago Contrafacta: Images and Facts in the Northern Renaissance," Art History 16(1993):554-79.