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.

Sorry, but your political enemies can use your copyrighted works (as long as their use is fair use).

Many people believe that an artist’s rights in her work include the right to prevent the use of the work on behalf of causes and beliefs she does not believe in. That may be true in Europe; it is not true in the U.S., provided that the use the artist is trying to deny does not exploit the markets created by the original work. In other words, politicians with whom singers disagree may well have the right to use excerpts from those singers’ songs. And the producers of movies that advance views with which the singers take strong exception may not have any worry as long as they are using the songs they are using aren’t being used merely to attract an audience to the movie by use of the song.

Times Higher Education explains the difference between European and Anglo-American law:

The later European view of copyright regarded a published work as the author’s offspring as much as his property, endowing him with inalienable moral as well as tradeable commercial rights. The Anglo-American tradition in copyright, which is based firmly in the notion of property and income, resisted this concept.

Thus, in June, a federal court in New York City denied Yoko Ono’s request for an injunction against further showing and distribution of the movie Expelled, which, as I have previously written, criticizes evolution, promotes the teaching of intelligent design, and, in the process, uses 15 seconds of John Lennon’s song “Imagine.”

As I wrote when Ono’s lawsuit was first filed, If the filmmakers had tried merely “to capitalize on the film as soundtrack material that would be attractive to an audience would likely not be fair use, but, if, as seems likely, the song is quoted to criticize its atheism, that use would likely constitute fair use, regardless of whether Ono finds the users’ message objectionable.” The court, apparently, thought similar things (citations and footnotes omitted; hyperlink added):

Defendants’ use is transformative because the movie incorporates an excerpt of Imagine for purposes of criticism and commentary. The filmmakers selected two lines of the song that they believe envision a world without religion: “Nothing to kill or die for/ And no religion too.” (“Imagine” lyrics) As one of the producers of “Expelled” explains, the filmmakers paired these lyrics and the accompanying music to a sequence of images that “provide a layered criticism and commentary of the song.” The Cold War-era images of marching soldiers, followed by the image of Stalin, express the filmmakers’ view that the song’s secular utopian vision “cannot be maintained without realization in a politicized form” and that the form it will ultimately take is dictatorship. The movie thus uses the excerpt of “Imagine” to criticize what the filmmakers see as the naïveté of John Lennon’s views. The excerpt’s location within the movie supports defendants’ assertions. It appears immediately after several scenes of speakers criticizing the role of religion in public life. In his voiceover, Ben Stein then connects these sentiments to the song by stating that they are merely “a page out of John Lennon’s songbook.” In defendants’ view, “Imagine” is a secular anthem caught in a loop of history recycling the same arguments from years past through to the present. We remind our audience that the ideas they just heard expressed from modern interviews and clips that religion is bad are not and have been tried before with disastrous results.”  The filmmakers “purposefully positioned the clip . . . between interviews of those who suggest that the world would be better off without religion and an interview suggesting that religion’s commitment to transcendental values place limits on human behavior. . . . mak[ing] the point that societies that permit Darwinism to trump all other authorities, including religion, pose a greater threat to human values than religious belief.”

Defendants’ use of “Imagine” is similar to the use at issue in a recent decision of the United States Court of Appeals for the Second Circuit in which fair use was found, Blanch v. Koons. There, the visual artist Jeff Koons copied photographer Andrea Blanch’s photograph from a fashion magazine without permission and incorporated a portion of it into one of his paintings.  . . . As in Blanch, defendants here use a portion of “Imagine” as “fodder” for social commentary, altering it to further their distinct purpose. Just as Koons placed a portion of Blanch’s photograph against a new background, defendants here play the excerpt of the song over carefully selected archival footage that implicitly comments on the song’s lyrics. They also pair the excerpt of the song with the views of contemporary defenders of the theory of evolution and juxtapose it with an interview regarding the importance of transcendental values in public life. Plaintiffs contend that defendants’ use of “Imagine” is not transformative because defendants did not alter the song, but simply “cut and paste[d]” it into “Expelled.” As the foregoing discussion illustrates, however, this argument draws the transformative use inquiry too narrowly. To be transformative, it is not necessary that defendants alter the music or lyrics of the song. Indeed, defendants assert that the recognizability of “Imagine” is important to their use of it.  Defendants’ use is nonetheless transformative because they put the song to a different purpose, selected an excerpt containing the ideas they wished to critique, paired the music and lyrics with images that contrast with the song’s utopian expression, and placed the excerpt in the context of a debate regarding the role of religion in public life. Plaintiffs also contend that defendants’ use of “Imagine” is not transformative because it was unnecessary to use it in order to further the purposes defendants have articulated.

Determining whether a use is transformative, however, does not require courts to to decide whether it was strictly necessary that it be used. In Blanch, although certainly Koons did not need to use Blanch’s copyrighted photo, as opposed to some other image of a woman’s feet, in his painting, the Second Circuit did not suggest that this lack of necessity weighed against a finding of fair use. Similarly, in Bill Graham Archives, the Second Circuit found a transformative use in the defendants’ unauthorized inclusion of several of the plaintiff’s images-principally concert photos-in a coffee-table book about the musical group the Grateful Dead.  Although the defendants manifestly could have proceeded without the plaintiff’s , which constituted only a small part of the book, this posed no obstacle to a finding of fair use.

As I said, I think the use of “Imagine” by the filmmakers without permission is legitimate fair use. Nonetheless, Lennon, and “Imagine” in particular, are being misrepresented. Lennon’s song imagines a world unpolluted by religious sectarianism, not exactly a radical view in light of the issues of the day. But that’s not a view many can find tolerable, even in the U.S. of 2008, and they’ll resort to misrepresentation to support their intolerance.  One day after the decision against Ono, the Wall Street Journal ran a story with the headline The Case Against John Lennon.  The quote that highlights the column?

Nothing to live or die for — what a nightmare.

Mike Thomas points out that the line is “Nothing to kill or die for” and asks:

What is going on here? Why is the WSJ promoting a column with such a provacative title and using a misquote to mislead readers into a negative reaction against John Lennon? The column itself is a mess. It is poorly written, jumbled and fails to adequately explain how John Lennon or his song “Imagine” has anything to do with what the column appears to be about. Here is the pertinent section that mentions Lennon:

“Mr. Sharansky has a new book, titled Defending Identity. It would be equally accurate to call it The Case Against John Lennon. Or, more specifically, the case against ‘Imagine,’ Lennon’s anthem to a world with ‘no countries . . . nothing to kill or die for/And no religion too.’ For Mr. Sharansky, a nine-year resident of the Perm 35 prison camp, that’s a vision that smacks too much of the professed beliefs of the ex-Beatle’s near namesake, Vladimir Ilyich.’

What the hell? Does he think he’s being clever or something? Lennon sounds like Lenin. Get it? So obviously they must be related or they must think alike or something right? Nevermind that “Lenin” was actually an alias for Vladimir Illich Ulyanov, while the surname Lennon dates back hundreds of years to old Ireland.

No, they sound alike so there must be a connection. Right? Kind of like how Obama sounds like Osama so they must be related too. Yeah. That’s the level of reasoning that the column sinks to.

Absolutely pathetic.

And of course he never goes back and explains how V.I. Lenin’s brutal and dictatorial ways have any similarity or correlation to Lennon’s ode to world peace. But fortunately for the cretins who run the WSJ editorial pages, John Lennon is dead and can’t defend his classic work against their asinine columnist’s offhanded smear.

Here’s Ken Miller, a biologist from my alma mater speaking at Case Western Reserve University, from which I am currently on leave, speaking on intellligent design, evolution, and religion: