Tom’s Diner and the Origin of MP3s

Posted on Categories Intellectual Property Law

Suzanne Vega has a fascinating essay over on the New York Times website about her song, “Tom’s Diner,” and its subsequent history, which is rich with details about the artistic creation process, how an artist reacts to an unauthorized remix, the burdens of licensing, and the history of MP3 files. “Tom’s Diner” was originally released as the lead track on her best-selling album (the one that had “Luka” on it). A few years later, a pair of studio engineers calling themselves “DNA” remixed Vega’s a cappella “Tom’s Diner” with instrumentals and a base beat, turning it into a dance track. They then printed up some vinyl records and began selling them, which attracted the attention of Vega’s label. But Vega herself liked the remix, and a licensing deal was struck. To Vega’s surprise, the remix took off and became a hit, three years after the original song was released.

And then there’s the story about how “Tom’s Diner” was used to create the MP3.

More on that in a minute. I’m interested in this tale not only from a professional standpoint as a copyright wonk, but because I myself became a fan of Vega’s work after hearing the remix in college. I then went back to the original CD, which my parents owned, and listened to the a cappella track — and I like them both. Anecdotal evidence is dangerous to extrapolate from, but in at least this instance, involving this one consumer, the derivative work did not harm the market for the original, and indeed served as a sort of reminder of the original’s existence. I later bought one of my favorite CDs, Vega’s 99.9 F — apparently not a “hit,” according to AOL — based in part on the fact that I knew she was capable of more than just “Luka.”

Vega’s own reaction to the remix is interesting: “It wasn’t a parody, which is what I was afraid of.” There’s a debate in copyright circles about what the theoretical basis for treating parody as a presumptive fair use is. Actually, others have probably written on this, but the debate I’ve been following is mostly between Justice Souter’s opinion in Campbell v. Acuff-Rose and Rebecca Tushnet. Tushnet has noted several instances on her blog when it appears that a copyright owner has been willing to license a parody, undercutting the “market failure” argument for parody as fair use. Reading between the lines of Vega’s essay, here’s one example that might have gone the other way; Vega might have let her record label sue if the remix had been a parody.

DNA’s was the first, but there have been a slew of remixes of the a cappella “Tom’s Diner” since then. Vega has licensed all but one of them:

I love the remixes, I embrace them, I am proud of many of them. Yes, they have “revitalized and extended my career,” as someone put it to me recently. They make me feel connected to the world beyond New York City in a way I never could have imagined when I wrote the original song about a single person feeling isolated. Absolutely. However, I still believe in copyright protection.

There’s interesting room to explore when an artist feels buoyed by such derivative works (or should feel buoyed), and when such works appear threatening (or should appear threatening). Fan fiction, as it is typically produced, probably fits in the first category, normatively if not descriptively (ask an academic to explain that if you live in the real world). Since only the author, or some other authoritative figure, can produce “canonical” works–e.g., the works that define the “real” Harry Potter–fan fiction likely doesn’t sap that market, and instead expands the periphery around it. But there are all sorts of tricky line-drawing problems here.

Finally, “Tom’s Diner” was apparently used as a test track in developing the MP3 compression technique, used to create the small audio files we know and love (YMMV) today. Some years later, Vega was invited to appear at an event at the Fraunhofer Institute in Germany, where the MP3 compression scheme was developed. They played the original song, then their first attempt (incredibly distorted), and finally “Tom’s Diner” compressed with the modern MP3 technique. What happened next reminds me of the scene in Gödel, Escher, Bach where Gödel objects at a press conference to a reporter’s suggestion that dictatorship is not possible under the U.S. Constitution, unlike in his native Germany (“Well, actually, I’ve been doing some thinking…”):

The panel beamed at me. “See?” one man said. “Now the MP3 recreates it perfectly. Exactly the same!”

“Actually, to my ears it sounds like there is a little more high end in the MP3 version? The MP3 doesn’t sound as warm as the original, maybe a tiny bit of bottom end is lost?” I suggested.

The man looked shocked. “No, Miss Vega, it is exactly the same.”

“Everybody knows that an MP3 compresses the sound and therefore loses some of the warmth,” I persisted. “That’s why some people collect vinyl…” I suddenly caught myself, realizing who I was speaking to in front of a roomful of German media.

(Actually, I recently read an article that said the high end is distorted and the low end uncompromised, so I guess there is room for subjectivity in this argument.)

“No, Miss Vega. Consider the Black Box theory!”

I stared at him.

“The Black Box theory states that what goes into the Black Box remains unchanged! Whatever goes in comes out the same way! Nothing is left behind and nothing is added!”

I decided it was wiser at this point to back down.

“I see. O.K. I didn’t realize.”

3 thoughts on “Tom’s Diner and the Origin of MP3s”

  1. Her earlier Times essay on Luka was also great. I’ll date myself by saying that I loved her first album–the one before Tom’s Diner–when I was in high school. (And, in order for this comment to have something to do with copyright, I’ll also add that I loved a bootleg recording of one of her concerts that I got from a friend’s friend’s big sister. Pre-MP3, the sound quality was terrible when the recording went from person to person like that, but the music was great.)

  2. And I’ll add that I am pretty sure Luka is one of the songs I taped off of the radio when I was in high school. By holding my cassette recorder really close to the radio. The sound quality was, well, terrible. Maybe my taste in music is terrible, too, because I liked Luka just as well as Tom’s Diner.

  3. Oops, of course I meant “bass beat,” not “base beat.”

    Vega might not approve, but my sister and I made up a parody when Luka came out. It began: “I have amnesia / I don’t remember my name”

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