Creative arts and antagonistic law

Thursday 25th July 2019

For centuries classical composers have written variations on other composers’ themes. Variations on a Theme by Haydn is accepted as composed by Brahms, not Haydn’s Chorale St. Antoni, arranged/transcribed/stolen by Brahms. Composers refer to and quote other composers in their works. Bartok, in his Concerto For Orchestra, quotes Shostakovich and there are numerous masses built on the In Nomine section of Taverner’s Gloria tibi Trinitas mass. This is part of the Western classical music tradition. When a composer quotes another composer, it is probable that many, if not most, in the audience would recognise the reference and the composer would probably want the references recognised; they are sometimes listed in the score and programme notes.

There are inevitably grey areas but someone involved in classical music could almost certainly recognise the difference between references, creative transformation, creative use of another composer’s work and plagiarism. Terms such as theft and stealing are meaningless when it comes to creative use of other material, even though the Oxford English Dictionary has “literary theft” as a definition for the word plagiarism. The first part of the definition however is “The action or practice of taking someone else’s work, idea, etc., and passing it off as one’s own;” which most people would find wrong. There can be no categorical view on what is creative and what is plagiary, there are always going to be myriad opinions on almost every aspect of creative works. Where a work is placed on the spectrum between barely recognisable creative transformation, through to plagiarism, via meaningful quotation, probably cannot be scientific. However plagiarism in its main dictionary definition may always be wrong, whether passing off another’s work as your own for status or money. But not always: Kathy Acker, the experimental novelist, took a whole scene from The Pirate by Harold Robbins and inserted it into her own novel Toulouse Lautrec. According to her biography, an overzealous attorney objected to this ‘plagiarism’; Harold Robbins himself, did not. He gave her his “entire permission” to use his work and was “shocked anyone would be so ill-informed as to accuse her of plagiarism”. [Chris Krause - After Kathy Acker (2017)]

I doubt Shostakovich lost income because Bartok quoted one of his themes, or Bartok was not able to come up with his own theme so appropriated Shostakovich’s. This is different from stealing I believe. Steal someone’s motorbike and the owner has lost something she or he has bought with money, can no longer use it, and it may be returned damaged or never be returned at all. This does not happen with a section of music or theme that is used in another work.

Unfortunately copyright disputes are not decided by people who know the creative areas involved but artistic techniques can be assessed and overruled by avaricious lawyers and uninformed juries. Big record companies, publishers and rich individuals can often use the law to force their own way, irrespective of the merits of the case. All this is compounded by the frequent extension of the period of copyright, now seventy two years after the composer’s death. Our traditional culture is decided not by creative artists but politicians, bureaucrats, lawyers and money.

In this narcissistic era the individual is supreme and ownership can be seen where it should not exist. How much art is sui generis? Collage technique, much more common in the visual arts, is also used by poets, writers, and musicians such as John Cage and the Beatles. This is a minefield as far as copyright is concerned. In one of Berio’s most famous works, Sinfonia, the 3rd movement is built on top of the Scherzo from Mahler’s 2nd Symphony; in which Mahler already quotes Bruckner, Beethoven and Schumann. In this movement Berio superimposes many quotations from more composers, including Ravel, Debussy, Stravinsky, Berg and Boulez. Should this work not exist because not every note was composed by Berio? Should Berio have got a signed contract from every single copyright holder? The anomaly is the difference in law between music written by living composers and composers who died less than seventy two years ago, and the rest. Yet it is the music written by recent composers, who are still in copyright, who may well represent our current culture and it would make more sense to quote or transform.

There is also ambiguity when deciding what to quote or transform. I personally would not feel comfortable if a composer quoted verbatim the love theme from Tchaikovsky’s Romeo and Juliet Overture, or the famous chord repeated from the Rite of Spring, these are too distinctive to be put in a different context. Some things, I believe, are off limits or cannot be transformed: to rewrite a famous Shakespeare soliloquy is almost certainly to fail; even those with the creativity and technique to do so probably wouldn’t feel comfortable trying. But most examples do not fit into this category. Famous solos on jazz recordings may be transcribed, orchestrated, and used as part of a new arrangement, for example the famous solo by Illinois Jacquet on Flying Home. This also means Jacquet’s masterful solo can be appreciated outside of the Hampton Orchestra that made the original recording.

In American law there is the concept of fair use which allows for some flexibility. However this did not prevent the courts from ruling in favour of the Gaye family. Their case revolved around elements they claimed were taken from the original track - the feel and sound of the song. Making a copyright decision on non-copyright elements sets an unwelcome precedent for future disputes. Another quirk of law is that the copyright owner is not necessarily the creator. The copyright of the much sampled two bar drum loop taken from James Brown’s Funky Drummer, is owned by James Brown's estate, not drummer Clyde Stubblefield who created and played the drum phrase.

Being able to use a small part of a work for parody, satire or criticism is legal, but there should also be concomitant legal right to interpolate copyright elements into another work for genuine and creative reasons. Perhaps the common techno and dance music acknowledgement could be used in classical compositions as well: for example a composer could write a new piano work, adding a note to the score stating that this work ‘contains elements of Variations on the Orange Cycle by Elodie Lauten’. The poet Veronica Forrest-Thomson has notes at the end of some of her poems such as:“All quotations from the OED” or “Quotations freely adapted from Brown Book, Investigations, and Proust”. Manipulative justifications do not usually convince knowledgeable people wrong is right. Recently there was much condemnation after a poet in England took other poets’ work and passed it off as her own, changing a few words here and there. Citing ‘intertextuality’ as justification did not wash with many in the poetry world.

Reframing the law on copyright and fair use may not be easy but it should be done. Even after a few highly publicised court cases the law still doesn’t appear any clearer, fairer, or relevant to contemporary creative arts. And there is also the problem that quoting a theme in a classical composition, and sampling a recording to use in another recording, are not equivalent: yet are both part of copyright legislation. Unfortunately I do not see the political interest in sorting out copyright law. And even if there were the interest no doubt uninformed politicians, would instruct uninformed civil servants, to consult with self-interested multi-national copyright owners, media companies and specialist media law firms; so it could end up being more of the same with sharper teeth. However in spite of these fears the law should be rebuilt, music alone is worth millions to the economy of many countries, and places and societies are largely defined by their culture and history. Who visits London or New York because of its fiscal policies, bank rate or lawyers?