The Contrafact: Improvisation’s Liminal Place in Law

This is a chart for Charlie Parker’s composition “Ornithology”. The piece is a “contrafact”, a term which describes a common compositional method in bebop music. “Ornithology” has the exact same harmonic progression as the popular song “How High the Moon,” which debuted on Broadway. The melody of “Ornithology”, however, is highly original.

Why did Bird write a piece that replaces the melody while retaining the harmony of a popular song? One answer, of course, is the purely artistic. Perhaps he felt that doing so was the best way to express his creative impulse. Here, however, I hope to explore another and perhaps more surprising answer: Copyright law had an impact on Bird’s compositional methods.

It is well-documented in US copyright law that, while you can copyright the melody of a song, you cannot copyright the underlying harmonies. Given the sheer quantity of pieces that use the same harmonies (blues, “rhythm changes,” and, worst of all, four-chord songs), it would have disastrous legal consequences if the system functioned otherwise. It’s already confusing enough that a copyright lawsuit over the “Happy Birthday” song ended in a $14 million settlement.

Consequently, if bebop musicians played contrafacts, they didn’t have to pay other composers royalties. Contrafacts presented a way of performing and recording pieces without having to pay royalties or seek publishing rights.

Why, however, is it only possible to copyright the melody of a popular song? Doesn’t “composition” and musical intellectual property include a broader range of techniques than just melody? The answer, in the legal sense, is a general “no”.

Improvised music is always saturated in others’ ideas. Jazz musicians improvise based on what we have heard before just as much as we do based on what we have found ourselves. Many saxophonists could (and unfortunately do) solo based entirely on Charlie Parker lines but simply arrange them in an order that Bird did not. Even if none of the content were truly original, only its performance and arrangement, Charlie Parker’s estate could not claim royalties for that performance!

The only situation, in fact, in which a rights holder could charge royalties for an “improvised” performance is if it is an almost exact replication. In a fascinating musical gesture, the band Mostly Other People Do the Killing did just that by releasing a note-for-note transcription of the classic album Kind of Blue. In this case, however, we would likely decide that the music doesn’t contain “improvisation” per se if it is entirely transcription of previously improvised materials.

In this sense, it seems that intellectual property law only covers two types of music: that which is written down and that which is recorded. In both cases, music must be concretized, materialized in a legible medium and abstracted away from its audible form, in order to become intellectual property. We consider the melody of a song to be intellectual property and yet not the entire universe of improvisational and harmonic structures a composition may contain. Even if someone sounds exactly like Charlie Parker because they have entirely copied his improvisational concept, they owe him nothing in a legal sense so long as they do not play one of his compositions or recorded solos.

For this reason, improvisation occupies a “liminal space” vis-a-vis the law. Law has a fairly established system of dealing with through-composed music, but the second we ask it to provide intellectual property rights over improvisation, it essentially washes its hands of the question. It considers it impossible to regulate or assign ownership over real-time expression.

“Ornithology” was first recorded in 1946, and we certainly must consider that it was no surprise that an African American jazz musician in 1946 would occupy a “legal gray area.” Indeed, American law at the time was, in general, either directly discriminatory towards black people or apathetic (at best) towards their achievements and rights. Law only defined (and continues to define) intellectual property in terms of materialized, eurocentric forms of music notation and composition. Bebop musicians, consequently, had to exploit legal loopholes and operate in the spaces the law was not regulating in order to make a living.

In this sense, copyright law and the law’s reticence to recognize improvisation as intellectual property directly influenced compositional techniques during the be-bop era and also provides a lens into American law’s distrust of black music as a bona fide cultural product. Loopholes in these structures might have created economic benefit for musicians when they employed the contrafact as a way to play familiar harmonies without paying royalties. We might, however, also argue that these artists received no royalty-based compensation or intellectual property rights over a significant portion of their life’s work: the development of improvisational techniques.

Of course, paying out royalties for influence or quotation in improvisation would be absurd. I do not mean to suggest that the same models of compensation that we employ for materialized musics work for improvised ones. Instead, I hope to highlight that the legal and economic structures of American society do not classify improvisation as “intellectual property.” Intellectual property laws, furthermore, are not theoretical abstracts: They influence the music that is profitable and even the music that is composed (i.e., contrafacts). The law’s bias against improvisation is a product of American society’s inability to handle sound that is not written or recorded and its continued second-class treatment of African American culture.