If you think lawyers lifting other lawyers’ language is proof lawyering is easy, you know nothing about true creativity.

There’s always the danger that when someone suggests that genuine creativity can and is built from earlier creative works that someone else will believe the implication is that creativity is no big deal. If I feel I can cut-and-paste from other lawyers’ works then lawyering must be nothing but a cut-and-paste job, right?

It’s not as if I’ve never dealt with these matters for real, as if I’m dealing with it from an academic perspective “unsullied” by the realities of practice. A client who retained me to draft a contract for him once said to me, after we’d spent a considerable amount of time discussing the details of his deal, “It’s all boilerplate, right?”

I responded, “I don’t do boilerplate. Every deal is different, and if you know the lawyer who’s done exactly your deal before and you’re confident the contract he wrote then is just fine for you, go hire him.”

Which isn’t to say I didn’t review a lot of other contracts or that I didn’t lift language from those other contracts. I did. I took a line or two from this one, a paragraph from that, another line from another, etc. And I put those things all together with my notes, shuffled things around, revised a lot of the language I’d lifted from other sources, wrote far more language necessary to express what was necessary to express this particular deal, worked and reworked, checked and rechecked, revised and revised, and at the end I had a document that set forth the client’s deal in all its precision, breadth, and ambiguity. It wasn’t boilerplate at all. But were there lines and even, perhaps, a paragraph lifted from other contracts? Of course.

I obsess about these matters in part because there is terrible confusion about what genuine creativity (in art, music, literature, the practice of law or a myriad of other endeavors) is. The confusion arises because, I believe, there is so much money at stake in the legal and rhetorical wars over copyright. So there are a lot of people who will look at Shepard Fairey’s Obama Hope poster and the photo Fairey used as the poster image’s source, and write things like the following:

Any director, writer or actor interested in making long-term money in the entertainment industry should be calling Fairey what he is: A plagiarist.

While I recognize the attitudes underlying these views — no one else is entitled to make a buck from my work! — the blindness to the creativity involved, even acknowledging the appropriation, is astounding. I’ve gone on at length about my view on this, but no one can deny that Fairey’s poster had a profound resonance and impact during the 2008 presidential campaign, and no one can suggest that the poster would have had any similar impact if the original photo had appeared on the poster rather than Fairey’s reworking. So how can anyone possibly suggest the level of creativity in the poster wasn’t profound?

The KLF “were one of the seminal bands of the British acid house movement during the late 1980s and early 1990s.” Their relevance here is that, “despite their protestations of 1988 about not wishing to be seen as crusaders for sampling, the [KLF] continue to be associated with the cultural movement which retrospectively bundles together those literary and artistic works that make use of ‘creative plagiarism’. 1987: What the Fuck Is Going On? is considered a landmark work in the early history of sampling music in the United Kingdom.” Their #1 British hit, “Doctorin’ the Tardis” “is predominantly a mash-up of the Doctor Who theme music, Gary Glitter’s ‘Rock and Roll (Part Two)’ with sections from ‘Blockbuster!’ by Sweet and ‘Let’s Get Together Tonite’ by Steve Walsh.”

Jimmy Cauty and Bill Drummond — who were the KLF — are also very smart fellows. Among a never-ending series of creative works in a wide range of media, they wrote The Manual: How to Have a Number One the Easy Way, which I’ve heard some describe as a cynical con job but that is far more intelligent and complicated than that. On the one hand, The Manual explains

Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality. In the past, most writers of songs spent months in their lonely rooms strumming their guitars or bands in rehearsals have ground their way through endless riffs before arriving at the song that takes them to the very top. Of course, most of them would be mortally upset to be told that all they were doing was leaving it to chance before they stumbled across the tried and tested. They have to believe it is through this sojourn they arrive at the grail; the great and original song that the world will be unable to resist.

But Drummond and Cauty are not accusing successful musical artists of being “mere plagiarists.” They recognize that even if a song can be broken down into bits and pieces of other songs, there is real genius in great pop music:

So why don’t all songs sound the same? Why are some artists great, write dozens of classics that move you to tears, say it like it’s never been said before, make you laugh, dance, blow your mind, fall in love, take to the streets and riot? Well, it’s because although the chords, notes, harmonies, beats and words have all been used before their own soul shines through; their personality demands attention. This doesn’t just come via the great vocalist or virtuoso instrumentalist. The Techno sound of Detroit, the most totally linear programmed music ever, lacking any human musicianship in its execution reeks of sweat, sex and desire. The creators of that music just press a few buttons and out comes – a million years of pain and lust.

Lewis Hyde makes a similar point in Common as Air, the new book that was the starting point for my exploration the other day of lawyerly “plagiarism”:

“Intellectual property” is the phrase now used to denote ownership of art and ideas, but what exactly does it mean? Does it make sense, to begin with, to say that “intellect” is the source of the “properties” in question? A novel like Ulysses, the know-how for making antiviral drugs, Martin Luther King, Jr’s “Dream” speech, the poems of Rimbaud, Andy Warhol screen prints, Mississippi Delta blues, the source code for electronic voting machines: who could name the range of human powers and historical conditions that attends such creations? All that we make and do is shaped by the communities and traditions that contain us, not to mention by money, power, politics, and luck. And even should the artist or scientist think she has extracted herself from the world to stand alone in the studio, a tremendous array of faculties and mind- states may well attend her creativity.

There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence, fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude, fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically opposed states of mind into harmonious wholes . . . We would need quite a few new categories to fully map this territory — “dream property,” “courage property,” “grief property” — and even if we had that list, only half the problem would have been addressed.

Do you want a great lawyer? You can have one even if he cuts-and-pastes the work of other lawyers into his work. But please — don’t believe for a second that means that lawyering can be reduced to cutting-and-pasting. Lawyering requires as much creativity as any endeavor on earth — if I didn’t believe that why would I write a blog devoted to law and creativity? And creativity is infinitely more complex a matter than tracking down the bits and pieces that make up the creative work. It requires the imagination necessary to find those bits and pieces, the vision to understand how to select and fit them together to due the present job, the skill borne of years of work to write in the stuff that can’t be found anywhere else and without which those bits and pieces would be just a bunch of crude boilerplate that doesn’t fit well into any specific situation at all, the passion and energy necessary to do the work to bring all this stuff together, the courage to stick to one’s vision even as one’s adversary is insisting you’re wrong, the delight without which the strength to do all of these difficult things would be impossible to muster, the generosity of spirit that can identify a client’s problems as your own, and a million other things.

So don’t you dare suggest that taking some language that is useful for doing the job that needs to be done from another lawyer is evidence lawyering is like putting together tinker toys.

Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as “plagiarists”

In yesterday’s New York Times, Robert Darnton reviewed Lewis Hyde’s newly published Common as Air: Revolution, Art, and Ownership, describing it as “an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.” As Darnton explains, “Hyde invokes the [founding fathers] in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the arts, literature, and the entire world of knowledge — in order to exploit monopolies.” Acknowledging that Hyde’s historical approach might seem a “dubious” way of “defending the cultural commons” and that in other hands it could amount to nothing more than picking and choosing among “a stockpile of quotable chunks of wisdom,” Darnton finds the book compelling:

[Hyde] does not merely cull the works of the founding fathers for quotations. He pitches his argument at a level where historians and political philosophers have contributed most to our understanding of intellectual history. Instead of treating the ideas of the founders as self-contained units of meaning, he explores their interconnections and shows how they shared a common conceptual frame. Not that he pretends to have uncovered anything unknown to the authorities he cites, notably the historian J. G. A. Pocock, whose studies of civic republicanism reveal how early modern philosophers drew on a current of thought about the nature of citizenship that goes back to ancient Greece and Rome. Hyde builds his argument by telling stories, and he tells them well. His book brims with vignettes, which may be familiar but complement one other in ways that produce original insights.

It is one of the genuine highlights of my professional career that Hyde draws on an article I’ve written. Hyde’s scope is wide, and he explores in depth the practices of many different “communities” — including, among others, the world of scientific research and the programmers that collectively created the World Wide Web — to show that treating knowledge and invention as a commons is both widespread and productive. One such community is the legal profession, which might seem odd in that the widely held understanding that your intellectual product is as much your property as is your house is such a legalistic conception:

Many . . . communities of practice have common holdings made durable and lively through normative rather than legal stints.

One of these may be found, oddly enough, in the legal community itself, where, as in some scientific circles, collective tasks get done and “collective beings” come to life through the agreed-upon non-ownership of creative labors. The fact is that in legal circles when judges issue opinions they often “plagiarize” from the briefs presented by contending parties. To take but one example, in 1937 Supreme Court Justice Benjamin Cardozo lifted, without attribution, verbatim sections of the Roosevelt administration’s brief in his decision upholding the Social Security system. Of course, “plagiarism” is the wrong term here, for legal writing does not come from the kind of author to whom credit is due. Legal writing is mostly collaborative, for one thing, produced by writing communities. In addition, legal opinions are public documents, belonging to no one because they belong to all of us. Nobody has ever successfully claimed copyright infringement for the unauthorized use of someone else’s legal argument. In fact, legal writers want to have their work appropriated. Peter Friedman, a lawyer whose analysis I’m drawing on here, has written: “I knew I had written the best brief I possibly could on a motion when the court’s opinion announcing its decision was directly cut-and-pasted from my brief.”

If lawyers were the kind of authors who claimed a property in their work, they would potentially deprive both the work and themselves of their public roles. As with eighteenth-century pamphleteers, or with the creators of the World Wide Web, self-erasure attends a lawyer’s entry into the public sphere, not self-assertion. The law is collective; it belongs to all citizens, and consequently we ask that its practitioners present themselves as public persons with copyduties rather than copyrights. In this context, to sample someone else’s brief is a favor, not a theft; it helps a lawyer be a lawyer. Common ownership makes that species of public life possible. (Common as Air at 248-249.)

Interestingly enough, this passage has some bearing on an exchange I had recently with the incredibly accomplished lawyer and blogger Scott Greenfield. Greenfield wrote a blog post criticizing a piece Stanley Fish wrote in the New York Times that argued that plagiarism as an offense is not a moral wrong, but, rather, the product of particular rules against the use in particular contexts of others’ words and ideas without attribution. [Fish wrote a second piece on the topic, responding to critics of the first piece, here.] The necessary corollary of Fish’s point is that in other contexts the use of others’ words and ideas without attribution is perfectly acceptable. Greenfield’s disagreement with Fish focused on Fish’s assertion that “lawyers and judges in fact do [appropriate words and ideas without attribution] all the time without the benefit or hindrance of any metaphysical rap.” Greenfield wrote, “No, Stanley, I will not turn the other cheek, no matter how much I love the platitude about reinventing the wheel.”

I tried to explain in the comments to Greenfield’s post where I thought he had missed Fish’s point (which is very much related to Hyde’s). I will try to do so more clearly here inasmuch as he and I seemed to speak past one another in that particular exchange.

In law school, plagiarism is the use of the words or ideas of others without attribution. It is a grave offense that can lead to harsh discipline and even might threaten the student’s ability to someday be certified to practice law. Strict compliance with the need to attribute words and ideas drawn from others is deemed necessary because the point of the academic process is to teach the students to put together and convey ideas clearly and to assess their capacity to do so. Thus, using words or ideas of others without attribution is tantamount to fraud — the reader of those words and the ideas they convey is misled into believing they are the product of the student’s intellectual processes alone, and the reader conducts an activity central to the academic process — grading those words — in reliance on that belief. If I were to read Scott Greenfield’s words under the mistaken belief they were the words of a student whose paper I was grading, I would give him a much better grade than he would earn if I knew he were just quoting Greenfield.

In legal practice, however, it is only the quality of the words that matter. Whether contract language originated with the lawyer who drafted the contract or a paragraph in a brief explaining a line of authority relevant to the brief’s argument was cut-and-pasted from a brief the lawyer who submitted the brief found online doesn’t matter. What matters is the effect of the words themselves. And, in fact, lawyers almost always begin drafting contracts by cannibalizing other contracts and forms. Yet they never cite to or otherwise acknowledge those sources. There is no reason for them to do so. And, as the passage from Hyde above makes clear, judges cut-and-paste from lawyers’ briefs. In fact, the entire arena of legal writing in practice is rife with unacknowledged borrowing.

And of course it’s no sin. That’s the point. Which Greenfield acknowledges without realizing it’s the point when he writes that a judge who appropriates the words from a lawyer’s brief is accepting a “gift,” not engaging in plagiarism:

As for judges taking language out of my brief, that’s not plagiarizing, but the purpose of a legal brief, to provide the court with the language to use in his decision. That’s exactly what I’ve written it for, as my “gift” to the judge to use in deciding the case. Again, entirely different from plagiarizing.

But that precisely is Fish’s point. Appropriation without attribution isn’t the moral equivalent of the theft of private property. It’s wrong in some contexts and not in others. So in some contexts it is defined as plagiarism and in others to call it “plagiarism” is to misspeak.

Greenfield’s other retort to Fish also reflects his misunderstanding of the point. Greenfield states that lawyers do provide attribution to the words and ideas for others. That’s what the whole obsession with citation is about:

[W]e do not lift language without attribution. Indeed, that’s what all those silly case names and the “358 U.S. 973″ stuff is all about. It’s the lawyers’ way of attributing, Stanley. It’s called a citation, and it’s our regime. What you do not see at the end of a court decision is the copyright and command that it not be used without permission. Use of court decisions is not merely anticipated, but required in most circumstances. That’s the peculiar way law works.

But the attribution provided by citation in legal briefs and opinions does not serve the same purpose as does attribution to a student’s sources. Lawyer’s don’t provide citations to the authorities they quote and rely on because their failure to do so would result in prosecution for a moral offense. Instead, lawyers provide citations because the citations signal the identity of sources for words, actions, and ideas that have persuasive weight because of who those sources are.

In other words, if I lifted language verbatim from a court decision without quotation marks or citation in a brief I wrote to a court I would suffer no harm. You might object that this possibility is a mere hypothetical, but you would be wrong. If an argument — and even precise words — come from a court that has no controlling weight in the court to whom I am submitting the brief and I have no reason to believe the identity of the court would lend any genuine persuasive weight to the argument, I would be remiss if I did provide the citation. The citation itself would raise a question in the mind of the judge to whom I was submitting the brief — why should I care about this court’s words, ideas, or actions? — that would distract from the persuasive effect of the argument itself.

And, indeed, as a general matter as a lawyer there is little reason to cite to law review articles unless there is reason to believe the author of the article is someone who carries genuine persuasive weight. A judge’s reaction otherwise is likely to be along the lines of this: “A law review article can pretty much assert anything that can win the approval of a student editor. Why should I assume it has any authority merely because it’s published in a law review?”

Would the article’s author have any claim against a lawyer who lifted words or ideas from his article and used them in a brief without attribution? I cannot believe so, nor am I aware of any standard or rule the lawyer would be violating.

And in contract and instrument drafting, of course, lawyers don’t even provide citation for the sources of their words.

I think it is important in understanding what Fish was writing about to understand these different functions of citation. On the one hand, there’s citation to validate the relationship between the words and ideas and the author’s identity. On the other, there’s citation to signal that particular words and ideas come from a source that must be reckoned with by the reader. They are two entirely different functions, and in legal practice the latter is the one that matters. The former does not. And so you have never seen a lawyer suffer any adverse consequences for plagiarizing.

But if any of my legal writing students are reading this, be on guard! Students must provide attribution to the words and ideas they appropriate from others.

Stealing what you love

John Pareles wrote, in “Plagiarism in Dylan, or a Cultural Collage?,”that “[i]deas aren’t meant to be carved in stone and left inviolate; they’re meant to stimulate the next idea and the next.” Accordingly, in words apropos of a point I’ve made over and over and over on this blog, he explains:

The absolutely original artist is an extremely rare and possibly imaginary creature, living in some isolated habitat where no previous works or traditions have left any impression. Like virtually every artist, Mr. Dylan carries on a continuing conversation with the past. He’s reacting to all that culture and history offer, not pretending they don’t exist. Admiration and iconoclasm, argument and extension, emulation and mockery — that’s how individual artists and the arts themselves evolve. It’s a process that is neatly summed up in Mr. Dylan’s album title “Love and Theft, ” which itself is a quotation from a book on minstrelsy by Eric Lott. (hyperlinks added)

Another masterful artist, David Foster Wallace, wrote, “No one who is invested in any kind of art . . . can read [Lewis Hyde's book] The Gift and remain unchanged.” It is Hyde’s thesis not merely that all art builds on earlier art, but that it is precisely the artist’s recognition that his creations are gifts that sustains his creativity. In other words, the capacity to create is a gift given to the artist and is given only if the artist understands his own creations as gifts themselves that other artists can use themselves in their acts of creation:

It is the assumption of this book that a work of art is a gift, not a commodity. Or, to state the modern case with more precision, that works of art exist simultaneously in two “economics,” a market economy and a gift economy. Only one of these is essential, however: a work of art can survive without the market, but where there is no gift there is no art.

So it should be no surprise that Andreas Hykade entitled this brilliant video “Love & Theft“:

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.”