Robert Johnson and Copyright

Olufunmilayo Arewa, Northwestern University Law School, has published "Borrowing the Blues: Context and the Copyright of Robert Johnson," as Northwestern Public Law Research Paper No. 08-19. Here is the abstract.

In 2004, Eric Clapton released the DVD-CD Sessions for Robert J and the CD Me and Mr. Johnson, which paid homage to Robert Johnson, one of Clapton's greatest musical influences. Clapton is not alone in his reverence of Robert Johnson. The ascension of Robert Johnson to the status of preeminent representative of early recorded blues traditions reflects broader trends in the creation and reception of blues music in the twentieth century. Johnson's position decades after his death is a startling contrast to the circumstances of his short life and the contexts within with he lived and performed.

Robert Johnson was a poor African American itinerant blues musician who died in obscurity under mysterious circumstances in 1938 at a country crossroads near Greenwood, Mississippi. Johnson was one of a number of musicians who made their way through the Mississippi Delta during the time period of his life and death. The legend of Robert Johnson, however, surpasses that of his musical contemporaries: Robert Johnson is the most well known bluesman of his era today. From his humble beginning and obscure death, Robert Johnson later emerged to become one of the biggest influences on rock and roll music, particularly through musicians in Great Britain, many of whom like Eric Clapton, count Robert Johnson as one of their greatest influences. Robert Johnson was one of the first 12 members inducted into the Rock and Roll Hall of Fame. Robert Johnson is far more famous in death than he could ever have envisaged during his lifetime. The story of Robert Johnson is thus an important one for the history of music, particularly in relation to the development of blues music traditions and the rock and roll traditions that emerged from blues.

The story of Robert Johnson is also an important one for copyright. Treatment of many blues musicians of Robert Johnson's era represent an early example of continuing tensions in the application of copyright to a broad range of living musical traditions. Copyright treatment of blues musicians also reflects the difficulties inherent in the application of copyright as a property rule to musical forms, including blues, which are characterized by pervasive borrowing. The reality of musical borrowing is often insufficiently acknowledged in discussions of copyright and music. The intersection of copyright, Robert Johnson's music and blues more generally can reveal something of how copyright law treats creative processes that reflect significant amounts of borrowing. Further, the contexts of application of copyright law to blues, as well as more generally, reflect the continuing influence of hierarchies of culture and power that have long shaped copyright law and its application.

Download the paper from SSRN here.