Like many 78 rpm records, this one was sold without liner notes. The center of the record provides the only details. It gives the name of the track and the band and a single word under the song title, "Ward"—presumably the composer. "Ward" might be Clara Ward of the Ward Singers, a talented gospel singer and songwriter who became Aretha Franklin's mentor and who had her own music publishing company. 48
There is a particular reason to think that she might have written the song: Ray Charles clearly liked to adapt her music to secular ends. We know that he "reworked" Ward's gospel classic "This Little Light of Mine" into "This Little Girl of Mine." Ward reportedly was irritated by the practice. So far as we know, the copying of the music did not annoy her because she viewed it as theft, but because she viewed it as an offense against gospel music. 49
Charles is now starting to get criticism from some gospel music performers for secularizing gospel music and presenting it in usual R&B venues. Most adamant in her misgivings is Clara Ward who complains about "This Little Girl Of Mine" being a reworking of "This Little Light Of Mine" (which it is), as a slap against the gospel field.14 50
This stage of Charles's career is described, rightly, as the moment when his originality bursts forth, where he stops imitating the smooth sounds of Nat King Cole and instead produces the earthy and sensual style that becomes his trademark—his own sound. That is true enough; there had been nothing quite like this before. Yet it was hardly original creation out of nothing. Both Charles himself and the musicological literature point out that "his own sound," "his style," is in reality a fusion of two prior genres—rhythm and blues and gospel. But looking at the actual songs that created soul as a genre shows us that the fusion goes far beyond merely a stylistic one. Charles makes some of his most famous songs by taking existing gospel classics and reworking or simply rewording them. "I've Got a Savior" becomes "I Got a Woman." "This Little Light of Mine" becomes "This Little Girl of Mine." 51
The connection is striking: two very recent gospel songs, probably by the same author, from which Charles copies the melody, structure, pattern of verses, even most of the title—in each case substituting a beloved sensual woman for the beloved deity. Many others have noticed just how closely Charles based his songs on gospel tunes, although the prevalence of the story that "I Got a Woman" is derived from an early-twentieth-century hymn caused most to see only the second transposition, not the first.15 Borrowing from a fifty-year-old hymn and changing it substantially in the process seems a little different from the repeated process of "search and replace" musical collage that Charles performed on the contemporary works of Clara Ward. 52
If I am right, Charles's "merger" of gospel and blues relied on a very direct process of transposition. The transposition was not just of themes: passion for woman substituted for passion for God. That is a familiar aspect of soul.16 It is what allows it to draw so easily from gospel's fieriness and yet coat the religion with a distinctly more worldly passion. Sex, sin, and syncopation—what more could one ask? But Charles's genius was to take particular songs that had already proved themselves in the church and on the radio, and to grab large chunks of the melody and structure. He was not just copying themes, or merging genres, he was copying the melodies and words from recent songs. 53
Was this mere musical plagiarism, then? Should we think less of Ray Charles's genius because we find just how closely two of the canonical songs in the creation of soul were based on the work of his contemporaries? Hardly. "I Got a Woman" and "This Little Girl of Mine" are simply brilliant. Charles does in fact span the worlds of the nightclub at 3 a.m. on Sunday morning and the church later that day, of ecstatic testimony and good old- fashioned sexual infatuation. But the way he does so is a lot more like welding, or bricolage, than it is like designing out of nothing or creating anew while distantly tugged by mysterious musical forces called "themes" or "genres." Charles takes bits that have been proven to work and combines them to make something new. When I tell engineers or software engineers this story, they nod. Of course that is how creation works. One does not reinvent the wheel, or the method of debugging, so why should one reinvent the hook, the riff, or the melody? And yet Charles's creation does not have the degraded artistic quality that is associated with "mere" cut-and-paste or collage techniques. The combination is greater than the sum of its parts. If Charles's songs do not fit our model of innovative artistic creativity, perhaps we need to revise the model—at least for music—rather than devaluing his work. 54
When I began this study, it seemed to me that the greatest challenge to copyright law in dealing with music was preventing rights from "creeping," expanding from coverage of a single song or melody to cover essential elements of genre, style, and theme. In effect, we needed to apply the Jefferson Warning to music, to defeat the constant tendency to confuse intellectual property with real property, and to reject the attempts to make the right holder's control total. My assumption was that all we needed to do was to keep open the "common space" of genre and style, and let new artists create their new compositions out of the material in that commons and gain protection over them. In many ways, Charles's work lies at the very core of the stuff copyright wishes to promote. It is not merely innovative and expressive itself, it also helped form a whole new genre in which other artists could express themselves. But to create this work, Charles needed to make use of a lot more than just genres and styles created by others. He needed their actual songs. If the reactions of Clara Ward and Big Bill Broonzy are anything to go by, they would not have given him permission. To them, soul was a stylistic violation, a mingling of the sacred with the profane. If given a copyright veto over his work, and a culture that accepts its use, Ward might well have exercised it. Like the disapproving heirs that Macaulay talked about, she could have denied us a vital part of the cultural record. Control has a price. 55
Did Ray Charles commit copyright infringement? Perhaps. We would have to find if the songs are substantially similar, once we had excluded standard forms, public domain elements, and so on. I would say that they are substantially similar, but was the material used copyright-protected expression? 56
The Copyright Office database shows no entry for "I've Got a Savior." This is not conclusive, but it seems to indicate that no copyright was ever registered in the work. In fact, it is quite possible that the song was first written without a copyright notice. Nowadays that omission would be irrelevant. Works are copyrighted as soon as they are fixed in material form, regardless of whether any copyright notice is attached. In 1951, however, a notice was required when the work was published, and if one was not put on the work, it passed immediately into the public domain. However, later legislation decreed that the relevant publication was not of the record, but of the notation. If the record were pressed and sold without a copyright notice, the error could be corrected. If a lead sheet or a sheet music version of "I've Got a Savior" had been published without notice or registration, it would enter the public domain. It is possible that this happened. Intellectual property rights simply played a lesser role in the 1950s music business than they do today, both for better and for worse. Large areas of creativity operated as copyright-free zones. Even where copyrights were properly registered, permission fees were not demanded for tiny samples. While bootlegged recordings or direct note-for-note copies might well draw legal action, borrowing and transformation were apparently viewed as a normal part of the creative process. In some cases, artists simply did not use copyright. They made money from performances. Their records might receive some kind of protection from state law. These protections sufficed. 57