The contemporary, and as some call it, ‘commonsense’ conception of the author is often argued to have been formed by the mutually consititutive relationship between Romanticism and copyright, culminating in the mid 19th century. Lee Marshall builds upon this, writing, ‘the ideas concerning subjectivity and the role of art that form the basis of Romanticism continue to the present day,’ as he delineates the role of the Romantic conception of the artist not only in copyright as law, but in situating copyright at the centre of a moral framework. Along with other theorists in his field, Marshall uses cotemporary musical artists to exemplify the continuation of Romantic conceptions of the artists as the moral framework-equivalent to the legal structure of copyright. In accordance with the arguments against which I set up my own case, the definition of Romanticism used tries to allude to a ‘worldview’ rather than ‘becoming paralysed by the stylistic diversity of Romantic artists’(Marshall, p.30). By interrogating the argument that that Romantic ideology forms the artistic side of the music industry, this essay seeks to understand the contemporary challenges which copyright faces on an ideological level, beyond the material advances of technology, particularly the internet, frequently seen as its nemesis. My entry into this argument is through the figure of Bob Dylan, a figure whose relation to copyright is controversial, but who nonetheless has regularly been used as a modern genius to hang arguments relating contemporary Romanticism to copyright on. Through Dylan my argument will introduce what I argue as the two central contemporary undermining issues for copyright; the defected, potentially Romantic figure of the copyright infringer, the pirate, as well as theories of an increasingly fragmented subject that have emerged since the 19th century amidst technologised society. This essay seeks to investigate the possibility that contemporary culture understands the self in a way no longer compatible with the copyright movement begun alongside a Romantic ideology in the 19th century.
The basis of the conception of authorship as it is widely understood can be described as formed in the parallelism between Romanticism and copyright as it developed in the nineteenth century. This parallel of artistic and proto-capitalist ideologies serves to bring the two fields closer together, but also crucially, to seem to hold them apart. In some ways the development of Romanticism fits unproblematically with the centralisation of the author in copyright, exhibited, for example, in what are now seen as Romantic manifestos, such as Wordsworth’s ‘Preface to Lyrical Ballads’, as well as by such literary figures’ direct lobbying for authors’ moral rights over their texts and the extension of copyright (Marshall pp40-43). Yet elements of Romanticism that valorise the natural as opposed to the industrial, for example, suggest that Romanticism constructs itself in opposition to the kind of legal institution of monetary worth that copyright is. Lee Marshall thus argues for a not only parallel, but also dialectical relationship between Romanticism and copyright which means that ‘the anti-capitalist ethos that posits great art as anathema to market rationality also serves to support the market mechanism that can secure the art work as a commodity’(p.55). Crucially for Marhsall, he is able to show a nuanced relationship between the Romantic principles of a figure like Wordsworth and his interest in making money from copyright. Marshall seeks to explain a chain of relation between an increasing notion of a singular genius, this being’s embodiment in their creative work, and the idea of therein being able to leave ‘an inheritable self to posterity’(p.41). This renders a Romantic’s interest in copyright not an interest in ‘a market mechanism but a literary gesture’(p.41), preoccupied with the notion of an epitaph and equating a creative work with a familial offspring. If the self lives on in its uniquely created expression, then the created work is not only the author’s property, but also more than property, it contains his very self. Whilst the moral and economic values of any text remained discernibly separate, they were interconnected sufficiently to be expressed in one law, the 1842 UK copyright extension act, whose authority was arguably both moral and legal.
It is the tensions between the Romantic artist and the capitalist-legal system of copyright, however, that have been focused on as the most lucrative. Jon Stratton twins Romanticism’s underpinning of copyright laws with its upholding of capitalist arts industries. He explains the central role that a continuation of the Romantic conceptions of the author takes, focusing on the record industry. He argues that ‘the Romantic ideology serves to distract the consumer from the commodification which has taken place. Without the aesthetic of the personal, which, in appearance, contradicts the practice of capitalism, records would appear merely variegated, formulaic rather than individual.’ The capitalist industry of selling records includes marketing that suggests an individual separate from the process of material production, who is the creator but not producer. This complicated relationship is sustained by key tenets of this understanding of Romanticism that, according to Marshall and Stratton, the artist behind the industry must appear to enact in order to sell records as well as sustain their not only legal but also moral right to copyright protection. These tenets are effectively subheadings to authenticity, which is described by Marshall as, ‘a characteristic of assumed genuineness or honesty that is understood to conflict with the inauthenticity, fakery and commercialism of the music industry’(p.56). Characteristics indicative of this trait and essential to fans buying a star in terms of believing them as well as spending their money on their work include, an attitude of anti-comercialism; an attitude that at least does not embrace if not derides technology; an emphasis upon individual expression and originality; an emphasis upon the instinctiveness or non-rational nature of music; an allegiance to the black roots of music and an emphasis on the personal nature of the relationship between performer and listener (Marshall, p.65). Both Stratton and Marshall cite contemporary music stars to exemplify this tension-based lucrative relationship between Romanticism, selling records and maintaining the moral justification for copyright protection. Stratton mentions John Lydon, John Lennon and Bob Dylan (p.155) while Marshall mentions only the last of these, recalling Dylan’s 1996 words in favour of further extending copyright (p.43).
Examining the legitimacy of the claim that Dylan fits this role leads to a questioning of the validity of the claim that Romanticism still has currency in this contemporary moral market. Stratton highlights the relationship between artist, record company and audience as one of two halves; the artistic stage’s separation from the consumer stage is what ensures the artist can remain intact in accordance with their Romantic ideology, while the second half between company and audience ensures the economic success that this Romantic image generates and that will partially feed back to the artist. It is crucial, then, that the artist remains separated from the commodifying process of turning artistic utterance to marketable record (p147). Dylan is posited as a figurehead of such a relationship, but his autobiography suggests that even before gaining a recording contract he longed to be commodified and absorbed himself in his contemporary American comsumer culture. In Chronicles Dylan recalls, ‘Folksingers, jazz artists and classical musicians made LPs, long-playing records with heaps in the grooves – they forged identities and tipped the scales, gave more of the big picture. LPs were like the force of gravity. They had covers, back and front, that you could stare at for hours. Next to them, 45s were flimsy and uncrystallized. They just stacked up in piles and didn’t seem important.’ Dylan fused the creative process with the commodifing process of recording for sales, creating songs along with the session musicians and producers he worked with rather than arriving at the session with the finished article in mind and practiced. On the album Oh, Mercy, for example, Dylan had only lyrics and no melodies and worked with musicians and producer Daniel Lanois on making up the songs whilst producing the object of the record itself (Chronicles, p.185). Not only were producers heavily involved in the creative process, Dylan reportedly took a keen interest in the technology of recording. In Chronicles, he expresses his detailed understanding of developments in recording technology (p.199), and he went on to produce his own albums, such as Modern Times, albeit under a pseudonym.
Even in explicit terms, Dylan’s relationship to copyright has not been cohesive. While Dylan is keen to keep the songs he has written and recorded in his family and limit their availability for access without purchase, he has been accused of copyright infringement himself, from plagiarism to outright piracy. He admits that his song writing began from adapting older songs, writing, ‘Opportunities may come along for you to convert something – something that exists into something that didn’t yet’ (Chronicles, p.51); a legitimite act under copyright law, but one that treads a fine line with plagiarism. A 2012 interview with Rolling Stone magazine summed up some of the accusations as well as Dylan’s latest response to them. Mikal Gilmore asks Dylan about the accusations that his recent album parrots but does not credit the work of Civil War poet, Henry Timrod, and that he previously copied words from a Junicha Saga novel into songs. Dylan responds dismissively and remembers countless other accusations including that of his pirating the whole of ‘Times They Are a Changing’ which some people believe to have been written by a young boy in New Jersey. ‘Wussies and pussies complain about that stuff’, Dylan concludes; ‘All those evil motherfuckers can burn in hell.’ Rather than an economic manifestation of his preoccupation with his own mortality and the nature of a person’s creation as their inviolable moral possession, Dylan’s relationship to copyright seems to be largely opportunistic, a better fit for an example of the kind of counterculture Charles Reich describes wherein capitalism’s inconsistencies are exploited in an ironic fashion as I will argue later. Dylan’s mercurial attitude to copyright undermines his potential to embody the notion of a contemporary Romantic artist, and points instead to alternative ways for an artist to relate to capitalism and self-commodification and philosophies of the self.
Chronicles details Dylan’s professed extreme discomfort at having been Romantically labelled ‘the Spokesperson of a Generation’ and describes his attempts to dodge the totalizing and moralizing epithet(p.115). Although in the same book Dylan tells Archibald MacLaeish that his boyhood heroes were indeed Romantic figures such as Robin Hood and St George the dragon slayer(p.113), Dylan is not keen to become seen as the people’s bandit. The titles he was labelled with he describes as ‘all code words for outlaw’(p.120) and recognises the uncomfortable proximity between outlaw status and conformity in the record industry, writing, ‘Semantics and labels could drive you crazy. The inside story on a man was that if he wanted to become successful, he must become a rugged individualist, but then he should make some adjustments. After that, he needed to conform. You could go from being a rugged individualist to a conformist in the blink of an eye’(pp88-9). Instead of assuming this identity, Dylan stressed the element to which he was controlled by a manager and thus the banality of the way in which live performances came about. In Don’t Look Back, a young group tell Dylan that they dislike some of their audience’s ignorance. Dylan retorts that he just shows up where he’s been booked to play, someone else books the gigs for him and he appears where he is instructed. The same film shows Albert Grossman, his manager, negotiating a TV network deal for a monopoly of Dylan appearance while he’s in the UK. Grossman plays the networks against one another and negotiates the deal he was looking for. This is included in an authorised film about Dylan alongside footage of him with his friends in hotel rooms, partying, playing music, and on stage. 
As Marshall stresses and as Dylan experienced, it is not easy to rid oneself of the image of a Romantic. Marshall writes, ‘the rejection of Romanticism is itself a Romantic gesture’(p.60) and Dylan describes how, as he tried to explode this public image of himself, newspapers ran frustrating stories such as, ‘Spokesperson denies he’s a spokesperson’(p.119). Dylan expressed his frustration as well as the desperate preoccupation of the music industry and music fans with Romantic notions of identity in a 2012 Rolling Stone Interview, saying, ‘Why is it that when people talk about me they have to go crazy? What the fuck is the matter with them? Sure, I had a motorcycle accident. Sure, I played with the Band. Yeah, I made a record called John Wesley Harding. And sure, I sounded different. So fucking what? They want to know what can't be known. They are searching – they are seekers’(p.6). In the liner notes of Biograph Dylan describes even trying to make bad albums to detract from this kind of seeking the creative genius. Beginning as a folk artist, Dylan moved to an electric sound in the 60s, tried gospel and 80s style riffs, appeared like a cowboy, a Mexican-style bandit and a gangster, singing in different-sounding voices and exuding different values and attitudes along the way. In Chronicles he hints that the change in musical (as well as clothing) style that came after his 1966 motorcycle crash may have had something to do with the death of Hell’s Angel Bobby Zimmerman five years earlier, who died in a similar accident(p.79). In the 2012 Rolling Stone interview, Dylan makes the connection explicit, saying he was transfigured from the person he was to someone else during the period between these two motorcycle incidents(p.2). In a strong sense, thus, Dylan claims he is quite literally not the same person as the one who wrote and performed his earlier songs, yet he still claims copyright on them.
While Marhsall attempts to discuss the period of the 1960s during which Dylan rose to fame, he does so without full detail, arguing that the period was analogous to the Romantic 19th century because ‘both emerge in response to changing cultural audiences’(p.61). Crucially, however, Marshall does not engage with the values of a young musical audience such as Dylan’s at that time of change. Charles Reich, ideologue of the American counterculture summated, ‘A new generation came along and can say we’re going to take all these thing, the stereo, the motorcycles, the things in the supermarkets and the music above all, and we’ll command them. Now we’ll use them as we wish’(On Record, p.433). The relationship between counterculture and capitalism had shifted in an important way from the 19th century to the 1960s. The hero was no longer to stand in complete contrast to capitalism and city life, but was to be immersed in both, to subvert systems from within rather than offering a separated (whether falsely so or not) rural way of life. Bob Neuwirth, for example, describes how Dylan persuaded him to join the 1966 tour of the UK by offering to buy him a leather jacket. It was not enough, however, to simply buy products and use them as advertised. The film of Dylan’s infamous 1965 San Diego conference shows a moment at which the singer seems to warm to a strangely dressed member of the audience in shades, an anorak and a hat with flowers in it, standing out from the suited journalists. ‘Who are you?’ Dylan asks, looking delighted, ‘get the camera on this person here’. At this point, the counterculture was to subvert capitalism by embodying its irrationalities, by using products strangely, placing them in juxtaposition to prove that, whilst buying a product can dictate how much less money a person has, it cannot dictate how they must use it and what values they live their life by. Counterculturalists set about robbing capitalism of internal logic and a stable ideology and filling products with meanings contrary to powerful institutions, holding up a distorted mirror to American consumer life.
There is still one epithet suitably mercurial and suggestive of changeability, a type of non-label with hints of Romanticism that Dylan might be accurately labelled with and which might illuminate ideological challenges to copyright. Discussing the Romantic tradition of bandit and outlaw figures, Martin Parker brings pirates into the same tradition, describing a ‘sparkly eyed villain who does bad things for good reasons.’ Yet the relation of Romanticism to copyright and the description of copyright infringers as pirates challenges the possibility of fitting the latter into this generalised bracket without creating a tension too great to overcome in the internal logic of the dialectic. As early as 1603 the term pirate referred to those illegally challenging copyright and stationers’ monopolies. In a wider sense, the term referred to a challenge on monopoly or unique authority as pirates refused the authority of fixed landed monarchies in favour of the fluidity of the barely policeable seas. Like Dylan, these pirates moved in and out of legality or operated on its margins as opportunities arose. As early as 1295 in England, the King was able to grant permission for normally piratical acts to become considered the work of privateers, for the illegal to become legal and for the crew of one ship to board another ship, forcibly and violently taking the spoils to be found thereon. The definition of piracy was about how an action was perceived not the inherent nature of the act or the ideology of a particular person, and is another semantic way in which the disjuncture between an artist’s subversive qualities and their entrenched position in the industries which produce and sell their work can be accounted for. Rather than arguing that a recording artist is subversive and supportive of institutions such as copyright due to the fusion of Romanticism with the economic-legal category of intellectual property, one could argue that an artist like Dylan is sometimes a pirate, sometimes a privateer, adapting old songs or even taking over texts, but safeguarding his own work within the legal system. In the same way, Dylan exploits Romantic visions of himself in order to excuse criminal behaviour. In No Direction Home, the interviewer talks to Dylan about his having stolen a large number of records from a fellow folk music fan before he was famous. Dylan responds ‘those records were like ants’ teeth…being a musical expeditionary like myself…one would have to take them and immerse oneself in them’(footnote 11), dodging the title of thief with the justification of ‘musical expeditionary’ and playing on the fact that it is possible to justify an action not by obscuring it but by changing the terminology used to describe it. Dylan is an extreme example, having been accused of plagiarism, but there is a question as to whether copyrighting music frames every artist in a similar piratical position. Dylan, alongside many others, argues that everybody adapts older songs, takes lines, adds their own or changes chords to create their work. Just as in language there are a finite number of words to reassemble, there are a finite number of musical notes and chords, which makes every song or text, in one sense, a version of other songs and texts. Artists must tread the fine line between creativity and piracy which will either render them Romantic supports for copyright or accidental piratical challenges to its moral ideology.
Such analysis of the connotations of piracy reveals the development of fluidity of character that ideologically challenges the Romanticism behind copyright in a parallel way to the challenging actions of pirates, suggesting that the contemporary threat to copyright is not simply due to easier access to pirated goods through technological advancement. As Martha Woodmansee notes, ‘while legal theory participated in the construction of the modern ‘author’, it has yet to be affected by the structuralist and poststructuralist critique of authorship’(Towse,p.2). Woodmansee refers to redescriptions of authorship, such as ‘The Death of the Author’, by Roland Barthes. Here, Barthes stresses the limitations that a notion of a definitive author create for a text, and offers instead the understanding of a text as free of its creator and belonging, in interpretation, to those who then read the text. In such a reading, the author is decentralised from his Romantic position and the creative process has never definitively finished. Barthes might be seen to represent a theorised version of the anger Dylan expressed at a Time magazine interviewer who asked what his songs were about. Dylan responded by asking the interviewer if he would be at his concert and hear the songs(Don’t Look Back), suggesting that he couldn’t supply an answer to the question of what the definitive subject matter of the songs was, but that the meaning would be produced with equal validity in each listener. Such a denial of ownership over a song undermines claims of financial ownership which depict Dylan as the sole proprietor, ignoring his own professed sentiments on who could lay claim to such a work.
The internet offers a contemporary technological parallel that cements the understandings of creative endeavour as open and incomplete. Not only has the development of the internet seen a rise in the availability of pirated goods and made piracy easier, the ‘information age’ that its development represents is seen to constitute a wider ‘radical decentralisation.’ David M Berry premises his argument on a rejection of the Romantic ideals of creativity, offering instead the notion that ‘creativity requires a social environment to flourish’(p.xi) and discussing the network of the internet’s effect on cultural conceptions of authorship and economic-legal ideas of production, consumption and ownership. He describes, ‘the internet is built upon a constellation of technologies that were written under free software licences that expressly allow the copying and reproduction of their code (for example, BIND, TCP/IP, DNS, HTTP, etc)’(p.14). The ‘overt inertextuality’(p.14) that the open standards of the internet, predominantly HTML, have resulted in, changes the way in which intellectual property and authorship is thought of more widely, rather than simply challenging copyright by making piracy easier. Pages can be amended, added to, commented on and although copyright is extending into code and internet domains, the premise on which its development is built does not seem compatible with the notions of authorship that provide the moral framework for Romantic ideas of intellectual property.
Simultaneously, however, thinking has emerged that is capable of taking into account modern networked society and decentralisation in order to create a centralised subject. Jean-Paul Sartre’s Existentialism stresses ‘being-in-the-world’ and ‘being-with-others’ as crucial relationships that create being itself, arguing that there is no essence that precedes existence. A central tenet for such thought, as for Romanticism, is authenticity, but Sartre posits that ‘In introspection I try to determine exactly what I am, to make up my mind to be my true self without delay – even though it means consequently to set about searching for ways to change myself’(p.63). The notion of sincerity ignores the parallax within being constituted by reflexive thought, but authenticity can overcome this by instead dwelling on this gap. Sartre explains, ‘One cannot say that I am here or that I am not here…Nor that I am standing, nor that I am seated; this would be to confuse my body with the idiosyncratic totality of which it is only one of the structures. On all sides I escape being and yet – I am.’ To say ‘I am…’(p.60) points to too static a position, but the self is constituted instead by the unfolding matrix of actions he performs and relationships he builds. The ‘idiosyncratic totality’ that constitutes the existentialist self, applicable to the pirate/privateer attitude of Dylan for example, could be a new ideology of the self to morally underpin copyright.
Whilst the arguments that describe the twin emergence of Romanticism and copyright in the 19th century are persuasive, the notion that Romanticism has continued to morally underpin copyright extension in the 20th and 21st century is a contentious one. It is possible to argue counter to this that the dual position of the artist and their industry (including copyright) is that of the pirate and the state capable of turning the pirate into the privateer. The fluidity of the piratical position, rather than being defined ideologically as either for or against capitalism (or previous economic systems), shows that piracy is not merely a material and legal challenge to copyright, but also an ideological challenge to its Romantic moral framework, characterizing the rebel as changeable and insincere rather than staunchly authentic. Crucially, however, piracy is not anathema to capitalism, but rather represents an even more extreme individualism than that of Romanticism, legitimizing the fulfilment of the desires of the subject even to the point at which the subject becomes incoherent from adopting conflicting positions in order to achieve its ends. The fragmentation of subjectivity as well as the importance of the notion of network as trumping the individual is embodied in the rise of the internet. The internet has not merely acted as a tool to make illegal downloading and file sharing easier, it embodies the technological form of 20th and 21st century ideologies that radically decentralise and fragment the subject, let alone the author. While this essay cannot offer a definitive answer for how copyright could reframe its legitimacy in the light of contemporary culture, it seeks to show the depth of the challenges which copyright faces, as opposed to the frequent conception that its regular infringement is merely due to the development of better technological means. The moral framework of copyright has been challenged, but may be restated through a better understanding of its contemporary challenges.
 Jacqueline Rhodes, ‘Coyright, Authorship and the Professional Writer’, Cardiff Corvery,Issue IIX,Vol.I,(June 2002), p 1
 Lee Marshall, Bootlegging: Romanticism and Copyright in the Music Industry, (London 2005), p.30
 Jon Stratton, ‘Capitalism and Romantic Ideology in the record business’, Popular Music, Vol.III, (January 1983), p.148
 Bob Dylan, Chronicles: Volume One, (London 2004), p.34
 Bob Dylan, Oh, Mercy, prod. Daniel Lanois, (Columbia Records, 1989)
 Bob Dylan, Modern Times, prod. Jack Frost, (Columbia Records, 2006)
 Quoted in On Record, ed. Simon Frith, Andrew Goodwin, (London 1990), p.433
 Don’t Look Back, director D. A. Pennebaker, (Leacock-Pennebacker 1967)
 Bob Dylan, Biograph, (Columbia, 1985)
 No Direction Home, Dir. Martin Scorcese,(PBS 2005)
 John Simpson, OED,(London 1884)
 Daniel Heller-Roazen, The Enemy of All,(New York 2009), p.82
 Roland Barthes, Image, Music Text, trans. Stephen Heath,(London, 1977)
 David M. Berry, Copy, Rip, Burn, (London 2008), p11
 Jean-Paul Sartre, Being and Nothingness, trans. Hazel Barnes, (London 1969)