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“:

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.”