What Does it Matter Who is Speaking? Authorship, Authority, and the Mashup

Abstract

This essay investigates the figure of the author and the concept of authorship in audio mashups and remixing. The analysis traces the development and functional aspects of this particular authority figure, entertains the recent crisis in authorship that has led to claims of the “death of the author,” and investigates the way both aspects shape our understanding of and responses to the mashup. The objective of the investigation is not to provide an authoritative account that will decide things once and for all. Instead, it concludes with a more sophisticated understanding of how the question concerning authorship needs to be situated and deployed.

Notes

[1] In providing this qualification I do not wish to impugn or otherwise dismiss the more practical efforts to resolve questions of authority and authorship in the digital era. These questions (and their possible responses) are certainly an important matter for creative artists, media consumers, publishers, law makers, intellectual property attorneys, and so on. What I do intend to point out, however, is that these practical endeavors often proceed and are pursued without a full understanding and appreciation of the legacy, logic, and consequences of the concepts they already mobilize and employ. The critical project, therefore, is an important preliminary or prolegomenon to these kinds of subsequent investigations, and it is supplied in order to assist those engaged in these practical efforts to understand the conceptual framework and foundation that already structures and regulates the conflicts and debates they endeavor to address. To proceed without engaging in such a critical preliminary is, as recognized by Immanuel Kant (arguably one of the principal figures in the history of critical thinking), not only to grope blindly after often ill-conceived solutions to possibly misdiagnosed ailments but to risk reproducing in a supposedly new and original solution the very problem that one hoped to repair in the first place.

[2] The difference between “legal owner” and “author” points to a curious wrinkle in modern copyright law called the “work for hire” doctrine. This early 20th-century modification, which was first articulated in the 1909 US statute, allows for the transfer of copyright by means of a contractual agreement whereby an employer, like a recording company, can assume ownership of a work by paying its creator for his or her efforts. According to this practice, authorship can be assigned to a corporate entity, what Peter Jaszi calls an “author-in-law,” that often has little or nothing to do with the actual creation of the work (34). “With works made for hire,” John Strohm's investigation points out, “the author is determined not by who actually composed a piece of music or directed the film, but rather by the employment status of the parties or the identity of the party commissioning the work” (135). Under the stipulations provided by the work for hire doctrine, an author, the individual who is legally defined as the originator or maker (Strohm 133), does not have title to the work and is, therefore, not considered to be its legal author. To make matters more complex, it is only US law that recognizes corporate entities as legal authors, and the idea of “corporate authorship is at odds with the concept of moral rights of authors (Le Droit Moral de l'Auteur) embraced by the European countries” and outlined in the Berne Convention (Strohm 137). Consequently, the work for hire doctrine, which was initially introduced by the recording industry in order to resolve debates and questions concerning authorship, does not necessarily clarify the identity of the author but introduces legal complications that have the effect of muddying the water, making it considerably difficult to decide who exactly is speaking through the medium of the recording. The term “recording artist,” which R. Serge Denisoff and John Bridges argue remains “one of the least examined aspects of the music industry” (132), is no less problematic. This is because “critics have,” as Jesse Walker points out, “long debated who ‘creates’ a pop record: the artist listed on the sleeve, the producer behind the scenes, the composer in the wings, or the sometimes anonymous studio employees who actually play the music” (57). And this persistent undecidability becomes particularly evident in moments of crisis, like the Milli Vanilli scandal. In 1990, the pop duo Milli Vanilli was awarded the Best New Artist Grammy for 1989. The award was rescinded, however, when it was revealed that the two individuals who had been identified as the “recording artists” did not actually create the music that had been recorded on their award-winning record. The larger point to be drawn from all this is that new terms and concepts like the “work for hire doctrine” or “recording artist” do not necessarily resolve the difficulties they were intended to address but often perpetuate and even exacerbate the problem.

[3] Slavoj Žižek, whom the New York Times called “the Elvis of cultural theory,” is arguably the most popular and widely read contemporary intellectual. Despite his prolific literary output since the publication of The Sublime Object of Ideology in 1989, his ongoing engagement with cinema and popular media, a reputable co-authored book on opera, and published articles on the Slovenian rock band Laibach, Žižek is still somewhat unfamiliar to scholars and students in the field of popular music studies. This is, of course, not the place to provide a general introduction to Žižek's work or to trace its possible applications to the study of popular music and society. Instead, I refer interested readers to the following introductory texts: Astra Taylor's documentary film Žižek!, Žižek and Daly's Conversations with Žižek, Paul Taylor's Žižek and the Media and the International Journal of Žižek Studies, available online at http://zizekstudies.org

[4] Perhaps the best example of this is the poet Homer, who, it is now thought, was not some real person but the name of a subject position occupied by what was, we think, a plurality of individual contributors.

[5] This inversion is also evident in modern legal practices. As Foucault's investigation points out, the author was, in France especially, a figure of “penal appropriation” (108). “Texts, books, and discourses really began to have authors (other than mythical, ‘sacralized’ and ‘sacralizing’ figures) to the extent that authors became subject to punishment, that is, to the extent that discourses could be transgressive” (108). In other words, texts were initially organized under the figure of author in order for the authorities (governments or the church) to identify who was to be held responsible for a statement so that one would know who could be questioned, indicted, and punished for a published transgression. It was, for instance, because Galileo had been condemned and placed under house arrest by church authorities for his publication of a treatise supporting the Copernican model of the solar system that René Descartes decided both to withdraw what would have been his first book, Le Monde, and to publish The Discourse on Method anonymously, that is, without any indication of his role as its author. In England and its break-away North American colonies, the author was situated as the responsible party in a new kind of property law called copyright. “The distinguishing characteristic of the modern author,” Mark Rose writes, “is that he is a proprietor, that he is conceived as the originator and therefore the owner of a special kind of commodity, the ‘work.’ And a crucial institutional embodiment of the author-work relation is copyright, which not only makes possible the profitable publishing of books but also, by endowing it with legal reality, produces and affirms the very identity of the author as author” (54). The legal concept of copyright, therefore, assigns ownership to a literary work by identifying the author as its legitimate owner and proprietor. This concept was, as Rose's essay points out, introduced in 18th-century London not out of some idealistic dedication to the concept of artistic genius, but in response to a specific technological innovation that had permitted the free circulation and proliferation of textual documents—the printing press. As Sven Birkerts' Eulogy explains, “the idea of individual authorship—that one person would create an original work and have historical title to it—did not really become entrenched in the public mind until print superseded orality as the basis of cultural communication” (159). As a result of these early legal negotiations, the figure of the author eventually became the organizing principle in contemporary copyright law. According to Strohm's demonstration, “the concept of ‘authorship,’ which is rooted in the text of the Copyright Clause of the [US] Constitution, functions as a legal term of art in copyright doctrine, with copyright ownership vesting initially in the author of the work. In Burrow-Giles Lithographic Co. v. Sarony the U.S. Supreme Court identified the Constitutional definition of ‘author’ to be ‘he to whom anything owes its origin; originator; maker’” (133).

[6] Not to flog a dead horse, but we can also give this a more contemporary and secular characterization by considering the figure of Santa Clause. At some point, children (especially in North America and those parts of the world affected by its intellectual and cultural influence) begin to doubt the existence of Santa Clause and his sole authority for determining who's been naughty and who's been nice. Despite this ontological fact, however, they continue to maintain belief in Jolly Old Saint Nick, because doing so has a certain practical utility and very real benefits.