There is another irony here. Styles formed by patterns of gleeful borrowing, formed as part of a musical commons--the blues of the Mississippi Delta, for example--were eventually commercialized and "frozen" into a particular form by white artists. Sometimes those styles were covered with intellectual property rights which denied the ability of the original community to "borrow back." In the last thirty or forty years of the century, African-American artists got into the picture too, understandably embracing with considerable zeal the commercial opportunities and property rights that had previously been denied to them. But aside from the issue of racial injustice, one has to consider the question of sustainability. 33
In other work, I have tried to show how a vision of intellectual property rights built around a notion of the romantic author can sometimes operate as a one-way valve vis-à-vis traditional and collective creative work.9 There is a danger that copyright will treat collectively created musical traditions as unowned raw material, but will then prevent the commercialized versions of those traditions--now associated with an individual artist--from continuing to act as the basis for the next cycle of musical adaptation and development. One wonders whether jazz, blues, R&B, gospel, and soul would even have been possible as musical styles if, from their inception, they had been covered by the strong property rights we apply today. That is a question I want to return to at the end of this chapter. 34
Musical styles change over time and so do their techniques of appropriation. Sometimes musical generations find their successors are engaging in different types of borrowing than they themselves engaged in. They do not always find it congenial. It is striking how often musicians condemn a younger generation's practice of musical appropriation as theft, while viewing their own musical development and indebtedness as benign and organic. James Brown attacked the use of his guitar licks or the drum patterns from his songs by hip-hop samplers, for example, but celebrated the process of borrowing from gospel standards and from rhythm and blues that created the "Hardest Working Man in Show Business"--both the song and the musical persona. To be sure, there are differences between the two practices. Samplers take a three-second segment off the actual recording of "Funky Drummer," manipulate it, and turn it into a repeating rhythm loop for a hip-hop song. This is a different kind of borrowing than the adaptation of a chord pattern from a gospel standard to make an R&B hit. But which way does the difference cut as a matter of ethics, aesthetics, or law? 35