MEIEA

Faculty Research Grant 2018

Title
Composing Copyright: Music and Image in American Intellectual Property Law

Keywords
Copyright Law, History of Photography, Intellectual Property, Popular Music
History, Ritual Economy

Project Summary
Theories about the music industry’s financial collapse abound. The digital download
and the corresponding ease of piracy are common scapegoats. The ephemeral
nature of music also enters into the discourse about an audience’s willingness to
pay. However, phenomena such as crowdfunding and the vinyl revival complicate
any narrative that suggests music is inherently less valuable to audiences than other
popular media. This proposed research will conduct an inquiry into the historical
factors that led to a privileging of image-based over audio-based work in American
intellectual property law, particularly in the development of musical and
photographic copyright in the nineteenth century.

Project Description
Aims: This research aims to historicize the development of divergent policies in
American copyright law toward audio-based and image-based work. The infamous
White-Smith v. Apollo (1908) decision that ruled manufactures of player piano rolls
did not have to pay royalties to composers is often framed as a historical footnote
because it was superseded by compulsory licensing in the 1909 Reform Act.
However, the logic that led to such a decision is deserving of further scrutiny as it
potentially bears evidence of a prejudice against audio-based work. Case in point, a
comparative analysis of the language used in the Burrow-Giles Lithographic Co. v.
Sarony (1884) decision reveals a sharp difference in the Supreme Court’s estimation
of photographic “authorship” when compared to that assigned to the composer of
music. Moreover, this privileging of image-based over audio-based work in legal
language may itself have historical influences, as a comparison of the interpretation
and use of copyright by two prominent nineteenth century content creators,
composer Stephen Foster and photographer Mathew Brady, demonstrates.

Significance: This research is intended to support a theoretical argument I have
made in an article published in the 2016 issue of the MEIEA Journal entitled “Taking
the Liberty: Toward a Theory of Copyright and Creativity.” In it, I argue that a
fundamental weakness in the philosophical justification for copyright law is an
incomplete theorization of the nature of creativity and creative work. I argue further
that a primary way to address this issue is for work on the history of copyright law
to return to the primary sources left by content creators for evidence of how they
have interpreted and used copyright in practice. The research described in this
proposal is a concrete case study that supports my previous theoretical argument.

Expected Outcomes: I expect this research to produce the following deliverables: 1)
inform a portion of my dissertation due in the Spring of 2018, 2) produce a
conference paper submission for the MEIEA Summit in 2019, and 3) produce an
article submission for the MEIEA Journal by the Summer 2019 deadline.

Impact of Research: This research will further develop my own theoretical
argument on the ritual economy of intellectual property law, and will help to
historicize some of the theoretical assumptions about why popular music has
consistently struggled to produce adequate compensation for musicians and other
constituent parties.

Relationship to MEIEA’s goals: This research relates to MEIEA’s goal to support
research in “business models in the music and entertainment industry.” Most
academic inquiry into copyright falls into two categories: 1) legal research
concerned with policy specifics and reform suggestions, and 2) critical cultural
perspectives belonging to the cultural Marxist tradition of the critique of political
economy. I argue that, while valuable, neither of these traditions can adequately
account for the role that content creators play in the history of copyright law. I
believe that as the field of Music Industry Studies establishes itself as an academic
discipline, proposing and testing theoretical models as I have done with the ritual
economy of copyright will become an important part of MEIEA’s identity. Legal
scholars are well positioned to understand copyright’s legal history, and some
critical cultural scholars have made helpful insights into what is wrong with
copyright application. However, the collective industry, pedagogy, and research
experience that makes MEIEA so unique also makes it an ideal organization to move
beyond mere critique and instead propose meaningful solutions. Part of the way to
do this is to be a voice for artist rights and to conduct research that legitimates the
content creator’s perspective. As the intersection of politics, economics, and
creativity, copyright history seems a logical place for that endeavor to begin.

Research Plan, Methods, Techniques, and Proposed Timing: I plan to make a
research trip from my home in Athens, GA to Washington D.C. and Boston, MA in the
Summer of 2018. In Washington D.C. I will conduct research using various holdings
at the Library of Congress related to copyright. Special attention will be paid to the
112 volumes of copyright registration books for the Southern District of New York
prior to 1870, where most of Foster and Brady’s works were registered. Afterwards
I will continue to Boston, MA for a visit to the R. G. Dun & Company collection, held
at Harvard’s Baker Library, to research credit reports on Foster and Brady. The Dun
& Co. reports have long been a source of vital insight into the business practices of
prominent nineteenth century figures, and are records that I simply must see in
person to conduct my research.

Relevance of skills, training, and experience: I have significant experience in the
theoretical questions raised by this research as evidenced by my two previous
publications in the MEIEA Journal. I am cultivating the relevant methodological
experience in archival history during my present dissertation work. I also have
significant experience in grant-funded projects, most notably in a project completed
in 2016 for the Pulitzer Prize Centennial under the auspices of Georgia Humanities.
More than 85% of our total $27,500 budget was under my direct supervision
including research travel, media production, and my own compensation. As part of
that project, I conducted over 12 hours of oral histories with 20 participants, and
this experience will have a direct impact upon my ability to complete the research
project proposed here.

Budget: I am requesting $2000 to subsidize travel to the two major archival
holdings relevant to this research: 1) The Library of Congress Early Copyright
Records Collection I Washington D.C. and 2) The Harvard Business School’s Baker
Library R. G. Dun & Company collection in Boston, MA. Additionally, I am requesting
$500 of support to attend the 2019 MEIEA Summit where I plan to present my
research in conference paper format.