fencing off the folk and genetic commons
This gene is your gene,”sang Francis Collins,playfully reworking an old Woody Guthrie song, with electric guitar in hand. “This gene is my gene,” he continued, backed up by the lumbering roar of a middle-aged rock band. This was no ordinary club gig; he was singing at a post–press conference party for scientists. Collins was the man who headed up the Human Genome Project (HGP),
funded by the National Institutes of Health, and he was trying to make an ethical and political point. Since the mid-1990s, Collins’s HGP had raced against a private effort to map the human genome in order to make our genetic information freely accessible, not privately owned and patented by a handful of corporations. Any scientist could examine HGP’s genome map for free—unlike the Celera Genomics’ privately owned draft, which was published with strings attached.1 Over the din, Collins chided his competitors in song by genetically modifying Guthrie’s lyrics:
This draft is your draft, this draft is my draft,
And it’s a free draft, no charge to see draft.
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It’s our instruction book, so come on, have a look,
This draft was made for you and me.
Dr. Francis Collins reworked “This Land Is Your Land” to argue that genetic information should be freely available to the scientific community. However, his use of that Woody Guthrie song was
sadly ironic, on multiple levels. “This Land Is Your Land” is a song written by an unabashed socialist as a paean to communal property: “This land was made for you and me.” Another key lyric goes,
“A sign was painted ‘Private Property’ but on the backside it didn’t say nothin’.” The folk-song tradition from which Guthrie emerged valued the open borrowing of lyrics and melodies; culture was meant to be freely created and re-created in a democratic, partici-patory way.
If this was so, then why was Collins’s use of “This Land Is Your Land” painfully ironic? Even though it was written over sixty years ago, the song is, to quote Woody Guthrie himself, still “private property.” Guthrie based the melody of “This Land Is Your Land”
on the Carter Family’s 1928 recording “Little Darlin’ Pal of Mine,”
which in turn was derived from a nineteenth-century gospel song,
“Oh, My Loving Brother.”2 This means that, in the twenty-first century, the publishing company that owns the late Guthrie’s music can earn money from a song about communal property, which was itself based on a tune that is over a century old. Far more disturbing, Guthrie’s publishing company prevents musicians from releasing altered, updated lyrical versions of that song. We won’t be hearing Collins’s mutated “This Gene Is Your Gene” anytime soon.
What’s the connection, you might be wondering, between folk
music and genetic research? Although obviously very different en-deavors, the practitioners of both used to value the open sharing of information (i.e., melodies or scientific data). In these communities, “texts” were often considered common property, but today this McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 15
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concept has been fundamentally altered by the process of privatization, that is, the belief that shared public resources—sometimes referred to by economists and social scientists as the commons— can be better managed by private industries. And in recent years, there’s been a significant erosion of both the cultural commons and the genetic commons, resulting in a shrinking of the public domain. The fact that folk melodies and lyrics are now privately owned rather than shared resources is a depressing example of how our cultural commons is being fenced off. As for the genetic commons, the
patenting of human and plant genes is but the furthest logical extension of privatization—taken at times to illogical lengths.
HAPPY BIRTHDAY, SCREW YOU
Like with many things relating to copyright, the story of how TimeWarner’s music-publishing division came to own “Happy Birthday to You” is long, convoluted, and absurd. It’s also a telling narrative about folk music—how it evolved from a living, breathing part of culture to little more than one musical genre among many, a mere section of a record store. When I first began cobbling together a legal and social history of “Happy Birthday to You,” I was surprised to discover that there was virtually nothing published on the subject.
Unearthing the song’s genealogy was difficult because Warner-
Chappell Music, then a subsidiary of TimeWarner, ignored my repeated requests for internal documents that might shed light on the song’s origins. Finally, Don Biederman—an executive vice president at the company—informed me in a faxed letter that the company does in fact maintain “files concerning HBTY in various
departments of our company.” However, he could not provide me with any information on “Happy Birthday to You” because “we regard this information as proprietary and confidential.”
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story—after nearly ten years of digging through journals, books, music-trade papers, old master’s theses, and other dusty sources. It goes like this: Schoolteacher Mildred J. Hill and her sister Patty published the song’s melody in 1893 in their book Song Stories for the Kindergarten, calling it “Good Morning to All.” However, the Hill sisters didn’t compose the melody all on their own. There were numerous popular nineteenth-century songs that were substantially similar, including Horace Waters’s “Happy Greetings to All,”
published in 1858. The Hill sisters’ tune is nearly identical to other songs, such as “Good Night to You All,” also from 1858; “A Happy New Year to All,” from 1875; and “A Happy Greeting to All,” published 1885. This commonality clearly suggests a freely borrowed melody (and title, and lyrics) that had been used and reworked throughout the century. Children liked the Hill sisters’ song so much that they began singing it at birthday parties, changing the words to “Happy Birthday to You” in a spontaneous form of lyrical parody that’s common in folk music.3
It wasn’t until 1935 that the Hill sisters finally got around to registering a copyright on the melody and the new birthday lyrics, claiming both as their own. The years rolled on, and so did the lawsuits, of which there were many. Then, in 1988, Birch Tree Group, Ltd., sold “Happy Birthday to You” and its other assets to Warner Communications (which begat TimeWarner, which will one day
give birth to OmniCorp, or a similarly named entity). The owners of Birch Tree told the Chicago Tribune that it was too time-consuming for a smaller company to monitor the usage of “Happy Birthday to You” and that “a major music firm could better protect the copyright during its final 22 years.”4 It turns out TimeWarner hit the jackpot when the U.S. Congress added twenty more years of protection to existing copyrights. As a result, “Happy Birthday to You” won’t go into the public domain until 2030.
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How better to protect an investment than to aggressively police the song’s use? The current owner does this job quite well, much like the song’s previous stewards. One person who was very well acquainted with royalty payments and copyright law was Irving
Berlin, the famous American popular-music composer. His 1934
Broadway play As Thousands Cheer included a scene where actors sang the litigation-prone birthday song. Although the lyrics of
“Happy Birthday to You” had not yet been copyrighted—that
wouldn’t happen for another year—the Hill sisters’ publishing firm nevertheless claimed that his use of the song was an infringement on the melody of “Good Morning to You.” The illicit singing was in all probability very innocent, but as was the case with later lawsuits against other infringers, they didn’t take pity on Berlin.
Postal Telegraph, a company that began using “Happy Birthday
to You” for singing telegrams in 1938, found itself treading in copyright-infringement waters, as did Western Union. Western
Union career man M. J. Rivise remembers, “From 1938 to 1942,
most of our singing telegrams were birthday greetings, and ‘Happy Birthday to You’ was the cake-taker.” Postal Telegraph apparently received permission from the American Society of Composers, Au-
thors, and Publishers (ASCAP)—the organization that collects
royalties for song-publishing companies—to use “Happy Birthday to You” without paying royalties. By 1941, ASCAP changed its mind and hiked the royalty rates. Western Union and Postal Telegraph refused to pay, commissioning birthday songs based on the public-domain melodies of “Yankee Doodle” and “Mary Had a Little
Lamb.” The public thought they were pretty lame, as you might imagine, so by 1950, the singing of “Happy Birthday to You” re-sumed, with the licensing problem sorted out. It’s likely that singing telegrams were instrumental in popularizing and ritualizing the birthday song throughout the United States.5
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Roy Harris, a twentieth-century composer of classical music, got into trouble when he used part of the song in his “Symphonic Dedication,” which honored the birthday of another American com-
poser, Howard Hanson. Variety reported, “Keeping the occasion in mind, Harris brought his composition to a climax with a modern treatment of ‘Happy Birthday.’ After Harris’ piece had been introduced by the Boston Symphony he was compelled by the copyright owners to delete the ‘Happy Birthday’ passage from his score.”
P.D.Q. Bach, the “Weird Al” Yankovic of the classical-music world, avoided using any strains of “Happy Birthday to You” in a birthday ode to his father because he was afraid of being sued. Instead, he based it on a traditional German birthday song. Even Igor Stravinsky was slapped on the wrist when he cited a few bars of “Happy Birthday to You” in one of his symphonic fanfares (the composer reportedly assumed it was an old folk tune).6
Although I found little evidence to suggest that “Happy Birthday to You” was an old folk song dating back to the eighteenth century, as I had first suspected, it obviously came out of the folk-song tradition that valued borrowing and transformation. As with most folk songs, there was no single “author”; instead, the tune slowly evolved over the years with anonymous contributions by many
people. The Hill sisters based “Good Morning to All” on an existing melody, and the lyrics were spontaneously generated by a bunch of five- and six-year-olds. Because the melody, first published in 1893, is now in the public domain and the lyrics weren’t even written by the Hill sisters, there is little reason why the copyright to “Happy Birthday to You” should still be enforced. But that hasn’t stopped the song’s stewards from taking every measure to prevent others from singing it without paying royalties.
In the mid-1990s ASCAP sent letters to Girl Scouts and other
summer camps, informing them that they had to purchase a per-
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formance license in order to sing certain songs. The fact that such a notice hadn’t been issued before illustrates the rising level of entitlement among copyright owners by the end of the twentieth century. Under the guidelines set forth by this ASCAP letter, songs such as “This Land Is Your Land,” “God Bless America,” and, of course,
“Happy Birthday to You” could not be sung at the summer camps without buying a license us. Copyright law defines a “public performance” as something that occurs “at a place open to the public, or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”
For instance, around a campfire.
The rules governing public performances are quite convoluted, like tax code, and enough to scare off anyone who wants to turn on a TV or radio outside his or her living room. For instance, “bars and restaurants that measure no more than 3,750 square feet (not including the parking lot, as long as the parking lot is used exclusively for parking purposes) can contain no more than four TVs (of no more than 55 inches diagonally) for their patrons to watch, as long as there is only one TV per room.” Radio broadcasts can be played through no more than six loudspeakers, with a limit of four per room. Any more, and you’re in trouble. The only exception is if the restaurant is run by “a government body or a nonprofit agricultural or horticultural organization, in the course of an annual agricultural or horticultural fair or exhibition conducted by such a body or organization.” In that case, you can use more speakers.7
Girl Scout camp officials were told that the penalty for failing to comply with copyright laws would range from five thousand dollars and six days in jail to one hundred thousand dollars and a year in jail for every unauthorized performance. After the American Camping Association (ACA) was approached by ASCAP, the ACA
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litigation. Some took the warning very seriously, including a Girl Scout Council director who advised future counselors at a training session to limit their repertoire exclusively to Girl Scout songs.
The Houston Chronicle reported that “several cash-strapped camps stopped singing the songs” altogether.
ASCAP CEO John LoFrumento defended his organization’s
hardball tactics: “They buy paper, twine and glue for their crafts—
they can pay for the music, too. We will sue them if necessary.”8 This climate of fear resulted in the following surreal scenario reported by the Minneapolis Star Tribune, which sounds like an episode of Sesame Street directed by David Lynch.
Something is wrong in Diablo Day Camp this year. At the 3 p.m.
sing-along in a wooded canyon near Oakland, Calif., 214 Girl
Scouts are learning the summer dance craze, the Macarena.
Keeping time by slapping their hands across their arms and hips, they jiggle, hop and stomp. They spin, wiggle and shake. They bounce for two minutes. In silence. “Yesterday, I told them we could be sued if we played the music,” explains Teesie King, camp codirector and a volunteer mom. “So they decided they’d learn it without the music.” Watching the campers’ mute contortions,
King shakes her head. “It seems so different,” she allows, “when you do the Macarena in silence.”9
Finally, however, ASCAP backed down after the kind of public-
relations smackdown that comes when you threaten to beat up Girl Scouts and take their lunch money. Soon after national wire services picked up the story, ASCAP entered into negotiations with Girl Scout leaders and hammered out guidelines that waived full royalty payments for nonprofit camps. After an agreement was
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sought, nor was it ever its intention, to license Girl Scouts singing around a campfire,” a direct contradiction of the statements made before the public-relations debacle came to a head. Today, ASCAP
charges the Scouts $1 a year, which allows the company to save face while at the same time reminding everyone that the kids are allowed to sing only because of ASCAP’s good graces.10
MAKING FOLK MUSIC
One year, I was taking a shuttle van back from the airport, glad to be back in Iowa City but exhausted from the Christmas holidays and feeling mute. However, I was alone with a driver who obviously wanted to chat, so I answered his questions about what I do. I mentioned my interest in music, which got the full attention of Jim Bazzell—the grizzled, fiftysomething man behind the wheel. It turned out that Bazzell’s father had been in a band called Jimmy and the Westerners, one of the many country-music combos that roamed the land in the 1940s and 1950s. They once performed at Nashville’s Grand Ole Opry and had their own radio show, though the group mainly made a living playing in honky-tonk bars around the Southwest. “My dad couldn’t read music and would play by ear,”
says Bazzell. “I remember my mom would scramble to write down song lyrics as they came on the radio.” He chuckles, “Of course, she’d get a lot of ’em wrong because she couldn’t write as fast as they sang, so my dad would just make up the lyrics he didn’t know.”
This kind of improvisation used to be a common practice, especially in folk and country circles where lyrics and melodies were treated as raw materials that could be reshaped and molded in the moment. When writing my last book, for instance, I happened to be listening to a lot of old country music, and I noticed that six country songs shared the same vocal melody, including Hank Thomp-
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son’s “Wild Side of Life.”11 In his exhaustively researched book Country: The Twisted Roots of Rock ’n’ Roll, Nick Toches documented that the melody these songs used was both “ancient and British.” It’s unlikely that the writers of these songs simply ran out of melodic ideas and decided to pillage someone else’s music. It wasn’t artistic laziness. Rather, it’s probable that these six country songwriters, the majority of whom grew up during the first half of the twentieth century, felt comfortable borrowing folk melodies.
They probably didn’t think twice about it.
This was also a time when more people knew how to play musi-
cal instruments, like Bazzell’s family, which performed small gigs at local hospitals and the like. His dad was proficient on fiddle and guitar—“any stringed instrument, really,” Jim says—and the kids learned to play at an early age, as did his mom. The stories he told reminded me of the song “Daddy Sang Bass,” which Carl Perkins wrote and Johnny Cash popularized. “Mama sang tenor,” the song’s chorus continued. “Me and little brother would join right in there.”
It describes how the singer’s parents are now in heaven and how one day he’ll rejoin the family circle in song, concluding, “No, the circle won’t be broken . . .”
The chorus makes an overt reference to an important folk song that dates back to the nineteenth century: “Will the Circle Be Unbroken,” which the Carter Family made famous. Starting in the 1930s, Woody Guthrie drew direct inspiration from a lot of songs associated with the Carter Family, recycling their melodies to write his own pro-union songs. For example, Guthrie wrote in his journal of song ideas: “Tune of ‘Will the Circle Be Unbroken’—will the union stay unbroken. Needed: a sassy tune for a scab song.” Guthrie also discovered that a Baptist hymn performed by the Carter Family, “This World Is Not My Home,” was popular in migrant farm-worker camps, but he felt the lyrics were counterproductive
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politically. The song didn’t deal with the day-to-day miseries forced upon the workers by the rich and instead told them they’d be rewarded for their patience in the next life:
This world is not my home
I’m just a-passing through
My treasures are laid up somewhere beyond the blue
The angels beckon me
From heaven’s open door
And I can’t feel at home in this world anymore.
The hymn could be understood to be telling workers to accept
hunger and pain and not fight back. This angered Guthrie, so he mocked and parodied the original—keeping the melody and reworking the words to comment on the harsh material conditions many suffered through. “I ain’t got no home, I’m just a-ramblin’
round,” he sang, talking about being a homeless, wandering worker who gets hassled by the police, rather than a subservient, spiritual traveler waiting for an afterlife door prize. Instead of looking to heaven—because “I can’t feel at home in this world anymore”—
Guthrie wryly arrived at his song’s punch line: “I ain’t got no home in this world anymore.”12
In 1940 Guthrie was bombarded by Irving Berlin’s jingoistic
“God Bless America,” which goes, in part, “From the mountains to the prairies / to the oceans white with foam / God bless America, my home sweet home.” The irritated folk singer wrote a response that originally went, “From California to the New York Island /
From the Redwood forest to the Gulf Stream waters / God blessed America for me.” (Guthrie later changed the last line to “This land was made for you and me.”) Continuing with his antiprivatization theme, in another version of this famous song Guthrie wrote:
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As I was walkin’—I saw a sign there
And that sign said—no trespassin’
But on the other side . . . it didn’t say nothin’!
Now that side was made for you and me!
He set the lyrics to a beautiful melody he learned from the Carter Family, giving birth to one of the most enduring (and endearing) folk songs of all time. Guthrie’s approach is a great example of how appropriation—stealing, borrowing, whatever you want to call it—
is a creative act that can have a powerful impact. Before Guthrie, the Industrial Workers of the World, the Wobblies, borrowed from
popular melodies for their radical tunes, which were published and popularized in the Little Red Songbook. These songs also parodied religious hymns, such as “In the Sweet By-and-By,” which was
changed to, “You will eat, by and by.”13
For Guthrie and many other folk musicians, music was politics.
Guthrie was affiliated closely with the labor movement, which inspired many of his greatest songs; these songs, in turn, motivated members of the movement during trying times. That’s why Guthrie famously scrawled on his guitar, “This Machine Kills Fascists.” Appropriation is an important method that creative people have used to comment on the world for years, from the radical Dada art of the early twentieth century to the beats and rhymes of hip-hop artists today. Guthrie drew from the culture that surrounded him and
transformed, reworked, and remixed it in order to write moving songs that inspired the working class to fight for a dignified life. Instead of passively consuming and regurgitating the Tin Pan Alley songs that were popular during the day, Guthrie and other folk singers created culture in an attempt to change the world around them. They were truly part of a counterculture, not an over-the-counter culture.
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Curious about the copyright status of Guthrie’s decades-old music, I called up Woody Guthrie Publishing and spoke to a very nice gentleman named Michael Smith, the general manager of the organization. He was clearly familiar with the folk-song tradition and obviously knowledgeable about Guthrie, but he nevertheless had a lot of trouble accepting the idea that copyright extension was a bad thing for art and culture. I was surprised when Smith told me that the song-publishing company that owns Guthrie’s music denies recording artists permission to adapt his lyrics. And I was shocked when Smith defended the actions of the company, called The Richmond Organization (TRO), even after I pointed out that Guthrie often altered other songwriters’ lyrics. “Well,” Smith explained, “he admitted to stealing, but at the time that Woody was writing . . .” He paused. “I mean, things have changed from Woody’s time.”
They certainly have. During the 2004 election season, a year after I spoke to Michael Smith, a small-time team of cartoonists posted a Guthrie-invoking political parody on their Web site. Not surprisingly, TRO threatened to sue. The animated short portrayed G. W.
Bush and John Kerry singing a goofy ditty to the tune of “This Land Is Your Land,” where Bush said, “You’re a liberal sissy,” Kerry replied, “You’re a right wing nut job,” and they sang together, “This land will surely vote for me.” Guthrie’s copyright managers didn’t think it was funny at all. “This puts a completely different spin on the song,” TRO’s Kathryn Ostien told CNN. “The damage to the
song is huge.” Perhaps more damage is done to Guthrie’s legacy by practicing such an aggressive form of copyright zealotry.
“If someone changed a lyric in Woody’s time,” said Michael
Smith, “chances are it wasn’t going to be recorded and it was just spread through campfire singing, you know, family-time singing and stuff like that. You know, now you can create your own CD at McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 26
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home and distribute it any way you want to, and so the dissemination is a lot broader, a lot faster, and can be a lot more detrimental to the integrity of the song.” Detrimental to the integrity of the song?
I pressed him further on Guthrie’s own alterations of others’ songs and asked what Woody would think of TRO locking up his folk-song catalog. “The answer to that is, you know, ‘Hey, you’re going to have to ask him, because we have a duty,’ ” Smith said. “We don’t know what Woody would have wanted—we can’t tell.”
Soon Michael Smith began to make a little more sense to me—at least economic sense. “If you allow multiple rewrites to occur, then people will think it’s in the public domain, and then you have a hard time pressing people to prove to them that it’s not in the public domain.” Then the publishers can no longer generate revenue from it. That a company can still make money off “This Land Is Your Land” is exactly the type of thing I believe Woody Guthrie would not have wanted. Even worse, that TRO prevents musicians from releasing altered, updated versions of his music probably makes Guthrie roll in his grave. But don’t trust me; listen to the man himself. When Guthrie was still alive, for instance, Bess Lomax Hawes told him that his song “Union Maid” had gone into the oral tradition, as folklorists call it.
“It was part of the cultural landscape, no longer even associated with him,” said Hawes, the daughter of the famous song collector and archivist Alan Lomax. “He answered, ‘If that were true, it would be the greatest honor of my life.’ ”14 In a written statement attached to a published copy of his lyrics for “This Land Is Your Land,”
Guthrie made clear his belief that it should be understood as communal property. “This song is Copyrighted in US,” he wrote, “under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin’ it without our permission will be mighty good
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