Blues Lives: Promise and Perils of Musical Copyright

Olufunmilayo Arewa, Northwestern University School of Law


The application of copyright law to music has long been fraught with complexities and continuing problems. Problems in the application of copyright to blues music have come to pass, in part, as a result of the peculiar ways in which copyright has been applied to nonvisual technologies of musical creation and reproduction. In the nineteenth century, music creation and reproduction reflected a live performance tradition, within a commercial context in which sheet music was the dominant form of fixed musical reproduction. Although copyright has been an inexact fit for music generally, in a world in which sheet music was the primary form of fixed musical reproduction, this bad fit was discernible but far less devastating in impact. In the twentieth century, however, new forms of musical reproduction became broadly distributed commercially, including the player piano and recording technology in the earlier part of the century. These technologies and subsequent technological innovations have contributed to problems in the application of copyright to music. The transition in the music industry from sheet music to recorded music had significant business and cultural implications; it meant that live performance could be encoded, reproduced, and transmitted in nonvisual form. As a result, early blues recordings reflect an important transition point in the history of commercial dissemination of music and the application of copyright to nonvisual forms of music reproduction. Copyright treatment of early blues artists and the topography of incentive and reward for such artists have direct bearing on continuing debates in the music copyright arena today. The short life of early blues exemplar Robert Johnson demonstrates important considerations in the application of copyright to music. On the one hand, Johnson and his posthumous copyright rewards exemplify what many see as the proper operation of copyright. At the same time, outcomes for Johnson and other artists may belie assumptions made about incentive and reward in copyright. Robert Johnson's copyright successes may actually be more consistent with an incentive story that reflects copyright as a lottery, which has significant implications for our assumptions about investments in expressive works and the distribution of copyright rewards.