To wit, Thomas worries that I failed to appreciate that copyright infringement of the Thicke/Pharrell sort is just as serious as piracy, which I did acknowledge as a serious problem for the music industry.
First, I want to clear up a couple of (minor but significant) things about my own position, which I think were perhaps a tad misrepresented in Thomas' post:
- I didn't (and don't) really advocate focusing any more time, effort or attention to "prosecuting music piracy," an effort which I think likely would be as futile as the "self-righteous finger-wagging" at pop-music appropriation with which Thomas contrasts it. This is why I noted in my OP that we can't "un-ring the bell of the Internet." (All music is digital now. All things digital are *too* easily share-able/steal-able. Ergo, there's no winning the Piracy War without completely overhauling the industry.) That's also why I suggested, quite seriously, that we think about federalizing the music industry and "the arts" more generally. (This clarification will be important in what follows.)
- As I see it, the reason the RIAA and, correspondingly, the courts are more concerned with piracy than copyright infringement is because, quite simply, there is MO MONEY lost on the former than the latter. Importantly, this is also why I am NOT as concerned with the same. (This clarification is the critical one and is central to what follows.)
So, I guess I'd want to object to Thomas' claim that *I* am the one conflating the conditions of expropriative piracy with the conditions of artistic appropriation or copyright infringement. I think the music business (with the backing of the courts) forces that conflation by treating both instances as more or less simple "property-theft." Within the frame of the music "business," we're only allowed to think of both instances as instances of "stealing," both offenses are an offense against property rights. By analogy, I can borrow my neighbor's hammer, but if I rent it out for others' use while I have it, then I've appropriated my what my neighbor (a la Nozick) would call her entitled holdings and I owe her a portion of whatever income I've made on my unentitled profiting by use of it. If I never return the hammer and/or subsequently claim it as "mine," I've expropriated (without proper rights' acknowledgment) my neighbor's hammer and I owe her its return or the equivalent of its value. As far as the courts and the music industry is concerned, musical productions are the hammer.
I might be wrong about this, but I think Thomas would agree that that frame and those conditions are not optimal for artistic creation or innovation. (I really appreciate his substitution of "innovation" for my "originality," which is very helpful.) If the conditions of music production weren't already entirely determined by the logic of capital, private property and rights/entitlement, we might be able to talk about something like the "moral" offense of unacknowledged appropriation qua expropriation that Thomas outlines in his piece, i.e., not giving credit where credit is due, not "paying respect" or not sufficiently appreciating one's artistic indebtedness to those who came before.
But, I just checked in, and that is not the condition of the conditions we're in.
I agree, in substance and spirit, with what I see as Thomas' fundamentally moral argument. Thicke and Pharrell should have known better and should have accorded credit/respect to Gaye's influence on their own innovative productions. What stopped them from doing something like what Sam Smith did vis-a-vis Tom Petty? We all know the answer to that: MONEY. Full stop. Thicke and Pharrell gambled that it would be more profitable to disavow their forbears than to acknowledge them. In this case, they lost to the tune of $7.5M... but that's a relatively small price to Thicke and Pharrell in the grand scheme of things.
My worry was and remains that their minor profit-loss will be a major creativity-loss for pop music, at least as it is now "conditioned" by capitalist business industry, which prefigures any and all thinking of "propriety" exclusively in terms of private property. That is, I'm primarily concerned with the manner in which pop music's business interests (private property and profit) not only run contrary to, but actively undermine, pop music's artistic interests (creativity and innovation). As I argued in my OP, pop music is a fundamentally parasitic genre; the raw material of its productions are nothing other than combinations and recombinations, appropriations and re-articulations, of prior productions. It is, as Thomas rightly notes, a discourse in the Foucauldian sense. Authorship, authorial intention and originality-- but, more importantly ownership-- is always already figured through the prism of that capitalistic discourse, which both determines and is determined by its prior, overdetermined configurations. The discourse of "pop music," qua capitalist business industry, does not permit any consideration of propriety other than in reference to ownership. We can think of other ways of according "props," though.
The Latin root of "propriety" (and, correspondingly, of both "appropriation" and "expropriation") is proprius, indicting that which is individual, special, particularistic or characteristic of a thing. We;d be better off getting back to that sense of propriety in re pop music, I say. Artistic "expropriation" is bad because it robs an individual, special, particularistic or characteristic quality of a thing of those exact values. Expropriation is philosophically objectionable because it commits a category mistake (i.e., it mistake the particular as universal, treats the special/individual as common) and it is morally objectionable because to whatever extent we're still committed to recognizing the uniqueness of human beings as meaning-making producers, we're obligated to recognize their original or innovative productions as individual, special, particularistic or characteristic productions. That is to say, productions that are, even if not entirely produced ex nihilo, at least deserving of acknowledgment or respect by other meaning-making producers.
So, yes, I agree with Thomas (and the court) that expropriation is objectionable within the capitalist discourse because it does not respect the boundaries of private property rights. But if we limit ourselves to the discourse of capital,if we conceded only that logic for thinking about these issues, then the distinction between appropriation and expropriation is going to be a very blurred line that is only clarified by the interests of profit, which only and always benefits those stakeholders capable of most effectively reproducing the discourse that produced them qua stakeholders. And, on the whole, we have to regrettably concede that the stakeholders in the pop music business industry are only interested in reproducing a discourse that views proprius/propriety in terms of profit and private property, not artistic originality or innovation.
As Robin James quite sagely remarked on my fb page with regard to the ex-/ap-propriation of black cultural products by white artists: "property (ie copyright) is NEVER a solution to white supremacy/patriarchy/etc.... this ruling is really just gonna mean that ppl are only gonna riff on artists who can't afford to sue." So, there are two different sorts of offenses to consider here, and their respective offensiveness belong to two different discursive orders. On the one hand, there is what we might call the moral offense of knowing-and-unacknowledged artistic expropriation, i.e., passing off the (particularistic, individualistic, characteristic) creations of someone else as if they were your own. On the other hand, there is the legal/commercial offense of expropriation, i.e., profiting off of the private property of another. James is right, I think, in noting that given the legal/commercial frame as the default discursive frame in which appropriation and/or expropriation can be contested these days, any defense of the latter offense undermines a defense of the former.
How do we make a morally-defensible distinction between appropriation and expropriation? I think it must begin with disassociating the capitalist definition of propriety with what is the more communal, collectively, productively and culturally meaningful sense of propriety. The latter, in my view, does not erase or disavow the particularity of culturally-specific productions, but rather opens a space for the acknowledgement of those indebted by their appropriations to pay due respect.