Current copyright law discourages the vital reinterpretation of existing music that defines jazz aesthetics. It privileges the composer of a borrowed work as the sole owner, regardless of the meaningful and original transformations a new musician may bring to or derive from an existing chord progression or tune. Within the framework of current copyright law, the kind of borrowing, referencing, and reworking of existing music that characterizes the evolution of jazz is considered unoriginal and thus not up to the standards required to adhere to the law. Revisitation is essential to jazz, ranging from oblique reference to the arrangement and performance of standard songs. Therefore, a narrower definition of what is legally “derivative” must be introduced into copyright law, in order to protect and valuate the highly original contributions of jazz musicians who generate new works and interpolations from existing music. Given the musical originality of many such interpolations, copyright law should consider these to be transformative, and thus not only protected under fair use analysis but also privileged as original compositions, protected under the law. Moving forward, similar considerations may be applied to digital music compilation, since the ability to transform sources and create collages generates new modes of meaning in a similar way to jazz.

Works: John Coltrane (performer): Summertime (1944); Art Tatum (arranger and performer): Cherokee (1946); Live Crew: Oh, Pretty Woman (1951); Miles Davis (arranger and performer): Love for Sale (1951-53); Keith Jarrett (performer): I Got It Bad and That Ain’t Good (1959).

Sources: George Gershwin and Ira Gershwin: “Summertime” from Porgy and Bess (1944), I Got Rhythm (1948-49); Ray Noble: Cherokee (1946); Vincent Youmans and Irving Caesar: Tea for Two (1948); Joseph Kosma and Jacques Prévert: Autumn Leaves (1948); Roy Orbison: Oh, Pretty Woman (1951); Cole Porter: Love for Sale (1951-52); Duke Ellington and Paul Francis Webster: I Got It Bad and That Ain’t Good (1959).

Index Classifications: 1900s, Jazz

Contributed by: Molly Covington