Charles disagreed. "You can't run away from yourself. . . . What you are inside is what you are inside. I was raised in the church and was around blues and would hear all these musicians on the jukeboxes and then I would go to revival meetings on Sunday morning. So I would get both sides of music. A lot of people at the time thought it was sacrilegious but all I was doing was singing the way I felt."11 Why the charge of sacrilege? Because beyond the breach of stylistic barriers, the relationships Charles described did not seem to belong in church. 38
"I Got a Woman" tells of a woman, "way over town," who is good to the singer—very good, in fact. She gives him money when he is in need, is a "kind of friend indeed," even saves her "early morning loving" just for him (and it is tender loving at that). In the third verse we learn she does not grumble, fuss, or run in the streets, "knows a woman's place is right there now in the home," and in general is a paragon of femininity. Gender roles aside, it is a fabulous song, from the elongated "We-e-ell . . ." in Charles's distinctive tones, to the momentary hesitation that heightens the tension, all the way through the driving beat of the main verses and the sense that a gospel choir would have fit right in on the choruses, testifying ecstatically to the virtues of Charles's lady friend. Charles liked women—a lot of women, according to his biographers—and a lot of women liked him right back. That feeling comes through very clearly from this song. 39
I would like to quote the song lyrics for you, just as I did the words of the hymn, but that requires a little more thought. Charles's song was released in 1955. By that time, the copyright term for a musical composition was twenty-eight years, renewable for another twenty-eight if the author wished. (Later, the twenty-eight-year second term would be increased to forty-seven years. Still later, the copyright term would be extended to life plus seventy years, or ninety-five years for a "work for hire." Sound recordings themselves would not be protected by federal law until the early 1970s.) Anyone who wrote or distributed a song under the "28 ??28" system was, in effect, saying "this is a long enough protection for me," enough incentive to create. Thus, we could have assumed that "I Got a Woman" would enter the public domain in either 1983 or, if renewed, 2011. Unfortunately for us, and for a latter-day Ray Charles, the copyright term has been extended several times since then, and each time it was also extended retrospectively. Artists, musicians, novelists, and filmmakers who had created their works on the understanding that they had twenty-eight or fifty-six or seventy-five years of protection now have considerably more. This was the point raised in Chapter 1. Most of the culture of the twentieth century, produced under a perfectly well-functioning system with much shorter copyright terms, is still locked up and will be for many years to come. 40
In the case of "I Got a Woman," it is now about fifty years since the song's release—the same length of time as between Thompson's hymn and Charles's alleged "rewording." If the words and music were properly copyrighted at the time of its publication, and renewed when appropriate, the copyright still has forty-five years to run. No one will be able to "reword" "I Got a Woman" and use it to found a new genre, or take substantial portions of its melody, until the year 2050. The freedoms Ray Charles says he used to create his song are denied to his successors until nearly a century after the song's release. (As we will see in a moment, this put certain constraints on Kanye West.) 41
Would it truly be a violation of copyright for me to quote the middle stanza in a nonfiction book on copyright policy? Not at all. It is a classic "fair use." In a moment I will do so. But it is something that the publisher may well fuss over, because copyright holders are extremely aggressive in asking for payments for the slightest little segment. Copyright holders in music and song lyrics are among the most aggressive of the lot. Year after year academics, critics, and historians pay fairly substantial fees (by our standards) to license tiny fragments of songs even though their incorporation is almost certainly fair use. Many of them do not know the law. Others do, but want to avoid the hassle, the threats, the nasty letters. It is simpler just to pay. 42
Unfortunately, these individual actions have a collective impact. One of the factors used to consider whether something is a fair use is whether or not there is a market for this particular use of a work. If there is, it is less likely to be a fair use to quote or incorporate such a fragment. As several courts have pointed out, there is a powerful element of circularity here. You claim you have a right to stop me from doing x—quoting two lines of your three-verse song in an academic book, say. I say you have no such right and it is a fair use. You say it is not a fair use because it interferes with your market—the market for selling licenses for two- sentence fragments. But when do you have such a market? When you have a right to stop me quoting the two-sentence fragment unless I pay you. Do you have such a right? But that is exactly what we are trying to decide! Is it a fair use or not? The existence of the market depends on it not being a fair use for me to quote it without permission. To say "I would have a market if I could stop you doing it, so it cannot be a fair use, so I can stop you" is perfectly circular. 43
How do we get out of the circle? Often the court will look to customs and patterns in the world outside. Do people accept this as a market? Do they traditionally pay such fees? Thus, if a lot of people choose to pay for quotes that actually should have been fair use, the "market" for short quotes will begin to emerge. That will, in turn, affect the boundaries of fair use for the worse. Slowly, fair use will constrict, will atrophy. The hypertrophied permissions culture starts as myth, but it can become reality. 44
In any event, Ray Charles had no need of fair use to make "I Got a Woman" because the hymn his biography claims it is based on was in the public domain. But is that the real source? I can hear little resemblance. As I researched the origins of "I Got a Woman," I found claims that there was a different source, a mysterious song by the Bailey Gospel Singers, or the Harold Bailey Gospel Singers, called "I've Got a Savior."12 The Columbia Records gospel catalogue even provided a catalogue number.13 There was such a song, or so it seemed. But there the research stalled. The exemplary librarians at Duke University Music Library could find no trace. Catalogues of published records showed nothing. Inquiries to various music librarian listservs also produced no answer. There was a man called Harold Bailey, who sang with a group of gospel singers, but though several Internet postings suggested he was connected to the song, his biography revealed he would have been only thirteen at the time. The Library of Congress did not have it. Eventually, Jordi Weinstock—a great research assistant who demonstrated willingness to pester anyone in the world who might conceivably have access to the recording—hit gold. The Rodgers and Hammerstein Archives of Recorded Sound at the New York Public Library for the Performing Arts had a copy—a 78 rpm vinyl record by the Bailey Gospel Singers with "Jesus Is the Searchlight" on the B-side. Our library was able to obtain a copy on interlibrary loan from the helpful curator, Don McCormick. 45
It sounds like the same song. Not the same words, of course: the introduction is different and the Bailey Gospel Singers lack the boom-chicky-boom backing of Charles's version, but the central melody is almost exactly the same. When the Bailey Gospel Singers sing "Keeps me up / Keeps me strong / Teach me right / When I doing wrong / Well, I've got a savior / Oh what a savior / yes I have," the melody, and even the intonation, parallel Charles singing the equivalent lines: "She gimme money / when I'm in need / Yeah she's a kind of / friend indeed / I've got a woman / way over town / who's good to me." 46
True, some of the lyrical and rhythmic patterns of "I've Got a Savior" are older still. They come from a spiritual called "Ain't That Good News," dating from 1940, which rehearses all the things the singer will have in the Kingdom of Heaven—a harp, a robe, slippers (!), and, finally, a savior. The author of "I've Got a Savior" was, like all the artists discussed here, taking a great deal from a prior musical tradition. Nevertheless, Charles's borrowing is particularly overt and direct. The term "rewording" is appropriate. So far as I can see, whether or not he also relied on a fifty-year-old hymn, Ray Charles appears to have taken both the melody and lyrical pattern of his most famous hit from a song that was made a mere three or four years earlier. 47