Protecting an artist’s legacy: maximize the income from his works, or seek to embody his art? Moral rights and the successors to John Cage.

One of the more remarkable “copyright” fights has, literally, been over silence. The copyright issues are interesting, but I’m particularly interested in the insights provided by Lewis Hyde that I recently came across and the way they bear on a lawyer’s duty to pay as much or more attention to a client’s heart and soul as it is to pay attention to a client’s legal rights and remedies.

The new information comes from the Official Blog of the John Cage Trust, a wonderful new addition to the blogosphere brought by the “not-for-profit organization founded shortly after Cage’s death to support and nurture his legacy.” As American Masters explains, Cage was not merely one of the 20th Century’s most important composers; his work and thought extends to every creative field:

His sense that music was everywhere and could be made from anything brought a dynamic optimism to everything he did. While recognized as one of the most important composers of the century, John Cage’s true legacy extends far beyond the world of contemporary classical music. After him, no one could look at a painting, a book, or a person without wondering how they might sound if you listened closely.

Cage was particularly interested in investigating composition through chance procedures. Thus, it is not surprising that the homepage of JohnCage.org points right now to “Eddie Kohler’s beautiful application devoted to John Cage’s Indeterminacy: New Aspect of Form in Instrumental and Electronic Music.” According to Stereophile (quoted on Amazon.com), Cage composed Indeterminacy by reading “90 stories, his speed determined by the story’s length. In another room, beyond earshot of Cage, David Tudor, pianist and veteran Cage collaborator, performed miscellaneous selections from Cage’s Concert for Piano and Orchestra and played pre-recorded tape from Cage’s Fontana Mix. The resulting collaboration is an astounding piece of ‘music,’ and a fine introduction to the innovations of John Cage. ‘A wonderfully curious way to hear stories.’”

Perhaps Cage’s most well-known work is 4′33″. Solonmusic.net describes the piece’s first performance and the audience’s reaction (footnotes omitted):

The first performance of John Cage’s 4′33″ created a scandal. Written in 1952, it is Cage’s most notorious composition, his so-called “silent piece”. The piece consists of four minutes and thirty-three seconds in which the performer plays nothing. At the premiere some listeners were unaware that they had heard anything at all. It was first performed by the young pianist David Tudor at Woodstock, New York, on August 29, 1952, for an audience supporting the Benefit Artists Welfare Fund — an audience that supported contemporary art.

Tudor placed the hand-written score, which was in conventional notation with blank measures, on the piano and sat motionless as he used a stopwatch to measure the time of each movement. The score indicated three silent movements, each of a different length, but when added together totalled four minutes and thirty-three seconds. Tudor signaled its commencement by lowering the keyboard lid of the piano. The sound of the wind in the trees entered the first movement. After thirty seconds of no action, he raised the lid to signal the end of the first movement. It was then lowered for the second movement, during which raindrops pattered on the roof. The score was in several pages, so he turned the pages as time passed, yet playing nothing at all. The keyboard lid was raised and lowered again for the final movement, during which the audience whispered and muttered.

Cage said, “People began whispering to one another, and some people began to walk out. They didn’t laugh — they were just irritated when they realized nothing was going to happen, and they haven’t fogotten it 30 years later: they’re still angry.” Maverick Concert Hall, the site of the first performance, was ideal in allowing the sounds of the environment to enter, because the back of the hall was open to the surrounding forest. When Tudor finished, raising the keyboard lid and himself from the piano, the audience burst into an uproar — “infuriated and dismayed,” according to the reports. Even in the midst of an avant garde concert attended by modern artists, 4′33″ was considered “going too far.”

Laura Kuhn, the Cage Trust’s Executive Director, graciously points readers to a excerpts from a conversation between Nicholas Riddle, general manager of Peters Edition, which owns the copyrights in Cage’s works, and Hyde, the author of an eagerly awaited forthcoming book on the “cultural commons.”  The part of the exchange between Riddle and Hyde Ms. Kuhn has posted concerns the work that became the focus of one of the more notorious copyright lawsuits of all-time, brought by Peters Edition against Mike Batts, a British composer. In the course of producing the album Classical Graffiti for the The Planets, Batts inserted a one minute silence between two sections of the album that were in radically different styles. According to Riddle, Batts said, “”I thought for my own amusement it would be funny to call it something, so I called it A Minute’s Silence and credited it as track 13, and put my name as Batt/Cage, as a tongue-in-cheek dig at the John Cage piece.’”

Subsequently, Batts’ “record company forwarded the [album] to MCPS, which was handling the mechanical royalties for these CDs. They then identified Cage’s 4’33” as the work in question and started to pay out pro rata royalties to [Peters Edition] as Cage’s publisher.” After Batts’ “homage” became the subject of newspaper reports, Peters Edition “agreed to a run-off between the Batt piece (performed by The Planets) and the Cage piece, performed at the clarinet by our London firm’s Head of New Music, Marc Dooley.”

As Riddle notes, the press described the subsequent lawsuit brought against Batts by Peters Edition as a claim that “Batts stole his silence from Cage.” I can’t say that I didn’t have precisely that impression. Riddle explains the lawsuit to Hyde differently — since Batts attributed the 1 minute of silence to Cage, he was either earning royalties for Cage’s work or identifying something as Cage’s work that wasn’t. Either way, he’d owe Peters Edition money:

The claim was nothing to do with stealing silence from Cage. The issue was entirely that Batt identified this silence as having Cage authorship, leading to a presumption that he was quoting in some sense from 4’33”, and was so successful in doing so that the collecting society started to pay out mechanical royalties for it. There were really only two options here: either, the track really was intended as a quotation from 4’33” or some other unidentified Cage work, in which case mechanical royalties were due; or, he was misappropriating Cage’s name in the context of a musical work, and that also would not do. He, after all, was the one who claimed it was Cage in the first place. Was he passing off something else as being by Cage, or was the work actually Cage? Since performances of 4’33” could be said in some sense to be self-identified as such, it was really his call.

As Hyde recognizes in his response to Riddle, the claim that identification of the minute of silence as a work by Cage was a “misappropriation” of Cage’s name to give value to a work it would not have had without that attribution is founded in the concept of “moral rights,” which are (except in very narrow circumstances not applicable to the lawsuit against Batts) not recognized in U.S. copyright law. As Hyde very concisely describes an artist’s moral rights, “such rights include the right of attribution, the right to prevent false attribution, and the right of integrity.”

I can understand why if one were talking about a conventional musical composition Riddle is right — Batts would owe money either because he had earned royalties from the sale, without permission, of a work that Cage had composed or, under the doctrine of moral rights, he had made money from a work that presumably sold in part because it had been falsely attributed to Cage.  Nonetheless, I cannot get my head around the idea that 1 minute of silence is a quotation of 4 minutes and 33 seconds of silence or that the attribution wasn’t a perfectly legitimate parody of Cage’s work rather than an effort to extract money from listeners who would mistakenly think they were listening to Cage’s silence, not Batts’. Even in a realm of moral rights there must be room for parody.

Nonetheless, to the shock of many, Batts settled the lawsuit and paid an undisclosed sum of money to the John Cage Trust. Riddle admits he is not at liberty to discuss the details of the settlement and writes that he and Batts did not discuss the reasons Batts agreed to the financial settlement, but he suggest that his own belief is that Batts as an artist recognized a need to acknowledge the legitimacy of the publisher’s claims:

[M]y personal take on this is that it is important to remember that Mike Batt is also a composer and that a significant part of his income is from royalties earned on his existing works. The same applies to CDs of his music or the music of the bands he creates and promotes. He is heavily invested himself in the concept of intellectual property and its value. And rightly so, in my view.

Hyde doesn’t dispute the merits of Riddle’s explanation of the legal bases of the lawsuit, but he does raise (in a remarkably gentle and respectful way) another entirely different doubt he has about the wisdom of the lawsuit. Hyde points to Cage’s Buddhist beliefs and convictions that his art was not a projection of his personality. In fact, moral rights are grounded in the idea that an artist’s creations are in some way embodiments and extensions of the artist: one violates an artist’s moral rights if one violates a work’s “integrity” by, for example, defacing it, because defacement of the work is in some sense a defacement of the artist. To attribute to an artist a work that isn’t by the artist is, in turn, to violate the artist’s identity by identifying the artist with something that is not the artist; an artist’s genuine work, in contrast, is the artist.

But Cage did not believe his compositions embodied or otherwise constituted extensions into the world of his identity. As Hyde writes, Cage was not interested in chance as a means of revealing the personality. He even wrote, “Personality is a flimsy thing on which to build an art.” Instead,

Cage was after [Jacques] Monod’s ‘absolute newness’ of pure chance. He was not out to discover any hidden self, nor did he think chance operations would reveal any hidden, already-existing divine reality, as ancient diviners thought. ‘Composition is like writing a letter to a stranger,’ he once said. ‘I don’t hear things in my head, nor do I have inspiration ….’”

If Hyde is right, then pursuing a claim that Cage’s moral rights had been infringed by Batts would be to assert a claim Cage himself did not believe in. If Cage had understood that, would he have refused to assert the claim? I think there’s a good chance of that. Would you sue someone for doing something you thought was a perfectly legitimate thing to do even if someone told you that if you sued them you’d get money? It’s important to understand that a lawyer represents the client, not the client’s abstract legal rights. But when someone’s rights pass to another (whether by contract, by trust instrument, by will, or otherwise), the new owner of the rights may have his own idea of what is important to protect.

How much is that successor bound by the original right’s holder’s understanding and intentions? That is a very, very interesting and difficult question. Hyde is suggesting, I think, that Riddle and Peters Edition were really watching out for the concerns of Peters Edition and not for the concerns of John Cage as an artist, that Riddle might have done far more to preserve Cage’s legacy than he did by extracting some money from Batts for the John Cage Trust.

In these difficult times, artists will need to depend on artists to produce new and innovative art.

Back in November, I wrote about conflicts between non-profit theaters and novice playwrights in connection with producing commercially unproven plays.  I also suggested that the solutions to those conflicts were not as profoundly difficult as some were suggesting. One such solution was to require the most successful productions by non-profit theaters to underwrite newer productions.

Yesterday, the National Endowment for the Arts reported that nonprofit theaters in the United States have seen unprecedented expansion across the United States.  Nonetheless, “while the research indicates broad growth and generally positive fiscal health, it also reveals decreasing attendance rates and vulnerability during economic downturns.”

Among the report’s findings were the following:

• Individuals and foundations remain the biggest contributors to nonprofit theater. In 2002, individuals donated 40 percent of all contributed revenue, and foundation giving made up 22 percent.
• Between 1990 and 2005, nonprofit theater revenues fluctuated sharply with business cycles in the U.S. economy. After the 2001 recession, nonprofit theater revenue (including both ticket sales and contributions) dropped nearly 12 percent in 2002. Revenue continued to decrease slowly from 2002 to 2005.
• Audience trends are flat or in decline. The percentage of the U.S. adult population attending non-musical theater has declined from 13.5 percent (25 million people) in 1992 to 9.4 percent (21 million people) in 2008. The absolute size of the audience has declined by 16 percent since 1992.

Given our current economic meltdown, the report does not bode well for the future of innovative theater.  Individual and foundation giving are not likely to sustain theatrical experimentation, and new sources of funding, including playwrights themselves, are going to have to be found.  In short, the global crisis in the markets and the resulting futility of depending on wealthy patrons makes all the more compelling Lewis Hyde’s call for artists to support artists:

Potential profitability is not a criterion for funding awards at [our theater]; as with other arts funders, we ask our panels to look for originality, risk-taking, mastery, and so forth; we respond especially to projects that transcend traditional disciplinary boundaries. That said, the principle of sharing the wealth is essential to [financing our productions]. It makes explicit the assumption that all who have succeeded as artists are indebted to those who came before, and it offers a concrete way for accomplished practitioners to give back to their communities, to assist others in attaining the success they themselves have achieved.

Negotiating between playwrights and non-profit theaters

The “Brewing Fight over Theatrical Rights” reported in today’s New York Times strikes this law professor as an easily resolved conflict.  Playwrights are complaining that non-profit theaters, in their standard form contracts to produce plays, are asking for 40 percent of the author’s royalties for the play for 10 years.  “In other words, if [the playwright] were to collect, say, $50,000 from [his play] over the next decade – a respectable sum for a well-received new play – the [non-profit theater] would receive $20,000 of it.”

The forty percent of future earnings (known as “subsidiary rights”) is standard for commercial theaters, but is a new high for non-profits.  From the playwrights’ point of view, it’s simply too much.  You don’t want your kids to grow up to be playwrights — they’ll starve.  The article quotes one playwright, Sarah Ruhl, who says, “If you’re talking about the difference between $18,000 a year or $30,000 a year, that’s the difference between being able to support yourself by playwriting – or not.”

The non-profit theaters, on the other hand, “argue that they deserve a cut because they increase the value of a new play with a first-rate New York production.”  And anyone involved in the non-profit world in these days knows that any source of income is desperately needed.  It isn’t really fair to say, as Ms. Ruhl does, “A nonprofit theater could raise that $12,000 from a corporation or a donor.”  For most non-profit theaters, it seems unlikely donors fall off trees.  Very few theaters are as well situated as the Lincoln Center Theater in New York and the Center Theater Group in Los Angeles, each of which has agreed to take no subsidiary rights.  It’s nice when you can draw on the charitable impulses of Wall Street and Hollywood moguls.  And the comment seems particularly insensitive coming from Ms. Ruhl, who, according to the New Yorker, “is thirty-four and has already won a half-million-dollar MacArthur Fellowship for her plays.”

So here’s the problem: for most playwrights, who make very little on their plays, 40 percent of their royalties for 10 years is too much.  For most theaters, the only way to produce plays is to tap every source of income they can.  Why not a sliding scale?  10 percent for the first X dollars in royalties, 20 percent for the next Y amount, etc.

This should not be war between playwrights and non-profit theaters.  They need each other, and mutually beneficial ground can easily be achieved.  Anyone should be able to see the common ground and I don’t expect this “brewing fight” to be a very bloody one.

Then again, when money is tight, people can get very nasty about the little remaining.  Those fights, though, are capitalism at its worst.  As Lewis Hyde, the writer about whom I wrote the other day, has noted, we already know that successful playwrights should support new playwrights and that we should not have to rely on private patronage to fund new plays.  In his Afterword to the Canongate edition of The Gift (pdf), Hyde writes about “the ethic by which the producer and director Joseph Papp used to manage the Public Theater in New York”:

Papp’s habit was to underwrite a great many theater productions and take a small ownership stake in each. Those that succeeded helped pay for those that came later. In the most famous example, “A Chorus Line” began at the Public Theater and then went to Broadway, opening in the summer of 1975. It ran without interruption for fifteen years, a commercial success that allowed Papp to support the work of less-established playwrights and companies. David Mamet, Sam Shepard, Elizabeth Swados, the Mabou Mines theater group and dozens more received support during the years that Papp managed the Public. Potential profitability is not a criterion for funding awards at Creative Capital; as with other arts funders, we ask our panels to look for originality, risk-taking, mastery, and so forth; we respond especially to projects that transcend traditional disciplinary boundaries. That said, the principle of sharing the wealth is essential to the Creative Capital model. It makes explicit the assumption that all who have succeeded as artists are indebted to those who came before, and it offers a concrete way for accomplished practitioners to give back to their communities, to assist others in attaining the success they themselves have achieved.

Lewis Hyde: remaking copyright by recovering the past

Lewis Hyde is one of the great, and almost entirely unknown, U.S. geniuses. According to this past week’s New York Times Magazine, “David Foster Wallace called him ‘one of our true superstars of nonfiction.’ Hyde’s fans – among them Zadie Smith, Michael Chabon and Jonathan Lethem – routinely use words like ‘transformative’ and ‘life-altering’ to describe his books, which they’ve been known to pass hand to hand like spiritual texts or samizdat manifestoes. The source of much of this reverence is Hyde’s first book, The Gift (1983), which has never been out of print (it was recently rereleased by Vintage in a 25th-anniversary edition) and which tries to reconcile the value of doing creative work with the exigencies of a market economy.”

According to the Times, Hyde’s attention these days has turned to the ways computers and the internet have affected our views of creation and property. As I’ve written before, intellectual property may be property, but we make a huge mistake when we assume it is property just like land or couches are property. The ease with which we now can copy and instantly and disseminate intellectual property world-wide has, however, entirely upset existing intellectual property law. We should not be shocked by the legal chaos — when the material underpinnings on which law has been made change, the law is likely no longer going to work very well. When that upheaval occurs in a political climate that worships capitalism, we probably shouldn’t be surprised that, as Hyde puts it, “the last 20 years have witnessed a corporate ‘land grab’ of information – often in the guise of protecting the work of individual artists – that has put a stranglehold on creativity, in increasingly bizarre ways.”

One particular example of what upsets Hyde is the Sonny Bono Copyright Extension Act, which is commonly understood to be the result of Disney’s capacity to economically coerce legislation to protect its monopoly over Mickey Mouse. The point of copyright law is to encourage invention for the public good. As the Supreme Court has stated, “[t]he monopoly created by copyright thus rewards the individual author in order to benefit the public.” There is no reason to believe Mickey Mouse and Donald Duck would not have been invented and that Walt Disney would not have been fairly compensated for their invention without the Sonny Bono Copyright Extension Act’s posthumous extension of the Disney Corporation’s control over the images of Mickey Mouse and Donald Duck. Such laws provoke Hyde to write:

Always in the background lies the question of the commercialization of culture, exemplified at the moment by many things–the ‘enclosure’ of the public domain, the patenting of aboriginal medicines, proprietary control of genetic materials or of the internet, and the general market triumphalism that has followed the end of the Cold War.

According to Hyde, we can begin to achieve the intended purposes of intellectual property — to promote invention, not maximize the wealth of the inventors — if, as the Times writes, we recover

the idea of the cultural commons as a deeply American concept. To that end, [Hyde] excavates a history of the American imagination in which the emphasis is not on the lone genius (Thoreau scribbling hermetically in the Massachusetts woods) but on the anonymous pamphleteer, the inventor eager to share his discoveries. In an essay that offers a preview of his book (posted, fittingly, on his Web site), Hyde posits that the history of the commons and of the creative self are, in fact, twin histories. “The citizen called into being by a republic of freehold farms,” he writes, “is close cousin to the writer who built himself that cabin at Walden Pond. But along with such mainstream icons goes a shadow tradition, the one that made Jefferson skeptical of patents, the one that made even Thoreau argue late in life that every ‘town should have … a primitive forest …, where a stick should never be cut for fuel, a common possession forever,’ the one that led the framers of the Constitution to balance ‘exclusive right’ with ‘limited times.’ It is a tradition worth recovering.”