Duke Ellington and plagiarism: Remixing Brain Pickings

First things first: Go read this Brain Pickings article on Duke Ellington’s habit of remixing/plagiarising his band. And while you’re at it, consider following Brain Pickings if you don’t already, because it is one of the more thoughtful sites out there when it comes to culture and creativity.

I wanted to piggyback a little off that post’s thoughts, because I think it comes very close to some interesting territory, and it’s worth the extra push. Just to summarize, though, Brain Pickings’ Maria Popova quotes from a Duke Ellington biography by Terry Teachout to highlight the jazz legend’s “regular habit of “borrowing” melodic fragments composed by the soloists in his famed orchestra, then transforming them into hit songs — without credit, creative or financial, to the originators.”

As it turns out, Ellington tended to “steal like mad” from the musicians who worked for him, taking melodic and rhythmic fragments from their improvisations, placing them into new frameworks and repackaging them as his own work. As Popova points out, and as I’ve also written about in the past, while we usually frown on this sort of explicit borrowing, this is how creativity actually works. Ideas don’t just emerge from the void through the sheer force of individual will, they come from recombining existing elements in novel ways and new contexts; creativity is a collaborative act, even if not everyone is aware, or willing to participate.

This tension between our romantic notion that creators should only come in the form of the lone genius, and the reality that art is often heavily based on other art, leads to the question of whether Ellington was a genius or plagiarist. Popova asks it this way:

Indeed, this image of Ellington as a compiler was a recurring impression, but one of ambiguous interpretation — was it a creative genius that transformed forgettable bits into timeless masterpieces, or an act of betrayal and artistic vanity at the expense of integrity?

You can read her answer (in short, he’s both, which I think is spot on), but I wanted to take the question in a slightly different direction. From the sounds of it, there’s little doubt that Ellington stole from his band—and I use that word very consciously, because what he was doing was taking something they had created, and then, by basing a composition off of it and copyrighting it, he actually was preventing them from reusing it.

Usually, “stealing” an idea from someone doesn’t impede their ability to use that same idea; they still have it, it’s just been replicated. Using the language of property to describe ideas is a result of the metaphors created by copyright law, and those metaphors often don’t hold up; unlike stealing a bike or a sandwich, when you steal an idea, you don’t actually take it away. In this case, the metaphor works. Ellington was taking something he didn’t make—or at least didn’t instigate—and then locking it up, and insisting that only he should be able to profit from it.

But it’s worth noting, this particular kind of theft is only possible because of the legal principle that ideas can be locked up, which stems from the belief in the lone creative genius. The major problems with what Ellington did are 1) He portrayed himself as a solitary creator rather than give credit to his collaborators, and 2) He profited off of the work of those collaborators, while preventing them from doing the same.

The first part may be unethical, but it isn’t necessarily illegal, and countless inventors, executives and others have made themselves into figureheads while downplaying the teams that made their work possible (think Edison and the light bulb). It’s an awful way to behave, but in most cases, it’s not actually against the law, and typically we rely on social rather than legal means to deal with it.

The second is a bigger problem, but only because it’s possible in the first place. If the laws around creativity recognized that remixing other people’s ideas is one of the foundations of creation, Ellington wouldn’t have been able to lock out his bandmates in quite the same way. He also wouldn’t have had as much incentive to do so—hiding your sources only really makes sense when creating without sources is a point of pride, or when recompiling and recontextualing is seen as in some way lesser. If there’s no shame in sourcing ideas, there’s no reason to plagiarize.

What that alternate form of copyright would be, I really don’t know. But as I’ve argued before, there’s a disconnect between the view of creativity in our copyright laws, and our current understanding of how creativity works. Ellington’s plagiaristic tendencies shows how that disconnect can manifest in questionable ways, and looking at his case, and others like it, might help point towards a better approach.

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