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Reflections on the Proper Use of Existing Music
by
Gregory Kerkorian
Composers who use existing music in their own work, either to create a successful arrangement, complete a school assignment, study an existing style, enhance a commercial project, or stimulate their imagination can face moral and legal issues which are seldom talked about in classrooms. A composer writing an arrangement of music in public domain has very little to worry about, as long as he credits the original artist and lists his own name as the arranger. Students preparing school assignments are also on solid ground. Problems arise when composers knowingly or unknowingly use existing material and fail to acknowledge their source, or use material protected by copyright without permission.
Music is less tangible than some item you might find in a store and it has has properties that separate it from all other forms of art and communication. It is uniquely shared by musicians who perform it and by audiences who listen to it, and when embedded in the brain, it can be recalled and reproduced from memory. In fact, once it is in the mind, it can keep a person from sleeping, like an uninvited nuisance that refuses to leave, and pesters with its persistence. It is no wonder then, that composers have allowed unoriginal sounds into their art.
Most musicians know that certain tones have directional tendencies; the seventh in a dominant seventh chord resolves downward and the third upward. When a melody becomes part of one's psyche, the tones in that melody establish a specific directional tendency forming a distinct entity. As the melody unfolds there is a pull from one note to the next until the particular melodic fragment is completed. When a composer is creating new music, he can encounter the melodies and rhythms stored in his memory, and as his creation takes shape, any two or three note pattern matching something familiar could begin to lead or pull the writer toward an unoriginal result. Writers are especially susceptible to this phenomenon when attempting to write music in another composer's style. In this instance, the writer is using another person's art as a point of departure. Melodic pull becomes much stronger and I know from personal experience that the result can be fishy. It is extremely difficult to successfully imitate someone's musical style without doing some of the things that the original artist has done. Creating too successful an imitation could result in a recognizable arrangement of the original. When this happens, it is usually best to scrap the effort and start over or, to avoid plagiarism, give credit to the original artist. When you do not give credit to the original composer for using his material, your effort can be construed as artistic theft.
To plagiarize means to take ideas from another and pass them off as one's own. It is less a legal term than an ethical one relating to moral actions, character, and to the conforming to professional standards of conduct. Intent becomes very important. It is one thing to take someone's composition verbatim, sign your name to it, and sell it, and yet another to emulate someone's musical style.
Professional standards allow the practice of writing in another composers style in order to learn the essential elements of that style. Society benefits from the free dissemination of ideas. If the melodic material is paraphrased, the writer is in danger of violating professional standards because the new material is a reworking or variation of the original and can usually be recognized as such. In this instance it is very important to assign credit to the artist who created the original, especially if the work is to be performed publicly or published. Writers who copy musical works note for note and claim authorship are clearly using the material improperly.
When copyrighted music is used in an improper way, it becomes a legal issue as well as a moral issue. Copyright infringement occurs when a writer and his publisher market copies of an original composition which the writer has consciously or subconsciously copied after having access to the original work. If the music has "a striking similarity which passes the bounds of mere accident", the law has been broken, unless permission has been granted by the copyright owner to use the material.
The principal of "fair use" recognizes the right of the public to make reasonable and customary use of copyrighted material, however, if the material is published and placed in competition with the original, the result is infringement. Copyright law has many complexities and exceptions. When you suspect that you have improperly used existing music, it is best to check with a legal expert.
In the educational music market, there is nothing to be gained by pirating another's work. Emphasis in this arena, particularly for lower levels, is more on music that is easy to listen to, and on playability, rather than on art. As developing composers learn to write this type of material it is likely that, at one time or another, they will compliment an established composer by emulating his style. Being a publisher of educational music as well as a writer, I have encountered more of this problem than most, so it seems appropriate and even necessary that I address the issue. I can assure you that nothing can make up for the loss of pride and pleasure when hearing someone else's artistic idea in your own composition and I advise composes who are preparing work for publication to avoid submitting these types of manuscripts.
It is generally felt that in order to grow musically as a writer, one should have good historical perspective and a comprehensive knowledge of traditional techniques on which to build. College professors who are encouraging young writers to forget everything they have ever learned in order to break new ground are correct to encourage originality but incorrect in their method. In order to gain skills that could allow a young composer to soar, it is necessary to learn what makes the music tick. Plagiarism is always a danger, for there is a fine line between what is proper and what is improper. If you are an aspiring writer, remember these things:
1. The improper use of material that is not original generally detracts from the art of the music. You will not be happy with the result, and neither will your colleagues if they recognize it.
2. Paraphrasing someone's original melody is dangerous, especially if the music is protected by copyright.
3. If you do happen to create music too close to someone's original, give credit to your source of inspiration.
4. Never submit music for publication that is clearly in someone else's musical language, especially if that language is distinctive.
You may be interested to know that nearly every composer has used existing music in his composition. The list includes such distinguished composers as Bach, Mozart and Beethoven. Since the principal way of learning technique and style is to emulate other writers, the practice seems well established. In the twentieth and twenty-first centuries, however, professional standards and standards of scholarship have changed. Advances in technology and legal complexities make the use of existing material seem blatant. When you find yourself mired in someone else’s musical language and are struggling with that fine line that defines originality, remember the lessons of this article.
The learning process can sometimes be painful, but creators often gain as much from their mistakes as from their successes. Keep in mind that errors in judgment where moral issues are concerned can be very damaging. The listener is unaware of the writer's motive for creating a work that uses unoriginal material. He simply knows what he hears and sometimes passes judgment. I sincerely hope that all of your judgments are thumbs up and that this article has helped you to anticipate problems that may not ordinarily have been foreseen.
Sources:
Shemel, Sidney & Krasilovsky, William M., This Business of Music (New York:Sidney Shemel and M. William Krasilovsky, revised and enlarged 6th edition, 1990) pp. 149, 282
Copland, Aaron, Music & Imagination (New York: the new American Library of World Literature, Inc., 1952) p. 36