Other People's Words
The Price of Freedom of Speech
essay by
Arthur Mortensen
"What words float up wihin another's thoughts
Surface as soon in mine, unfolding there
Like paper flowers in a water-glass...."
Richard Wilbur,
"The Mind Reader," 1976
"Those were the days," an old friend said, as we laughed about Vivaldi and
Bach stealing from one another, which they did, sometimes relentlessly, as
when Vivaldi took an entire concerto from Bach, transposed into another key,
and signed it as his own. Of course, nobody was fooled. Everyone
knew. And no one cared. A whole piece was admittedly an exception.
More often than not it went little further than a lengthy quote, though
even those could be huge, as an entire movement re-scored by Beethoven for
Symphony No. 8, The Pastoral, which he borrowed from Haydn's remarkable
oratorio The Seasons. You can find the same thing throughout
the history of jazz. The "standards" from Swing through Be-Bop and
beyond were other people's songs, though with a significant difference, noted
below. Cross references, allusions, and quotes populate poetry across
the centuries as well. All of this is part of what Frederick Turner
describes as the marvelous feedback mechanisms that enliven and enrich the
arts, especially the classical arts. Such approaches to composition
layer work, giving it a past, present and suggesting a future by artful borrowing,
alteration and variation. For a long, long time, through most of the
history of art, few artists complained. Today, it would be called
intellectual property theft. If you borrow without attribution today,
it’s often a crime, depending on the degree of borrowing you do. In
the last twenty years, intellectual property law has become formidable. When
Vivaldi transposed that entire piece of Bach’s, it was good he wasn’t alive
in the 20th century, because he would have been charged with a felony and
Bach would have sued for damages. Why?
Part of the answer is easy, and is revealed by the transformed relationship
between art, the income derived from it, and the investment of work and money
to get it from the artist to the public. And this first became a significant
problem with the rise of the popular song in the United States. Ever
wonder why be-bop players only took the first four measures of a song for
a theme? Because, if they took more, it would have been intellectual
property theft. The reason for this is as uncomplicated as why
you can’t take a gallon of gas from your local station. Gasoline isn’t
put out there as a favor, with the costs put up by a rich merchant or a prince;
it’s a product that has to be sold to make back costs for the station owner,
the delivery tanker driver, the refiner, the shipper, and the driller.
The popular song, indeed, all popular literature, was a product. There
was no princely patron picking up the tab for Irving Berlin. So, if
somebody other than the composer and lyricist started making money
off a commercial song, it was time to call a lawyer. The same
notion of intellectual products applies to all of the arts where there’s
something you can take home with you, whether it’s a book, a painting, a
print, a recording, a movie. If you take it home, you pay the going
price, and you can’t make a copy of a piece still covered by copyright law,
not a complete one obviously, and not even partial one, and call it your
own. Why did this happen?
Bach, Vivaldi, Shakespeare, Michelangelo, almost any artist you can name
until the late 19th century, was patronized. Their work was
written at the behest, and at the expense, of someone else. Patrons
who were especially involved with the art whose production they paid for,
such as the Medicis for virtually the entire Florentine Renaissance, the
various royal persons who supported Elizabethan drama and poetry, or those
kings and princes in Vienna such as Baran von Swieten in the production of
high classical music, often worked directly in the conceptualization of the
art, and were actively involved in high level discussion of contemporary
art theory. Von Swieten even wrote the libretto for Haydn's Seasons,
as well as selecting some of the incidental music and partly organizing and
proofing the final manuscript. If you've read the histories, you know
that patrons were not especially easygoing bosses; that's one of the reasons
for the prodigious production levels of many of their artists. Bach,
for instance, was expected to write a new cantata every Sunday for
nearly twenty years. The results were astonishing; they continue
to inform cultures across the world centuries later, whether in support or
in reaction. But, since the late 19th century the system of such profoundly
personal patronage for new art, with some exceptions, has largely
vanished. The writer can think of no contemporary single man or woman
of wealth who would directly patronize a composer, novelists, filmmaker,
playwright, poet, painter or sculptor. From the rise of both democracy
and industrial capitalism onward, the artist, increasingly, was expected
to be an artist-manager, a business owner whose work included not only the
art but its commercial development. Perhaps the most exemplary early
model of this was Gustav Mahler, though perhaps the earliest was the actor
Garrick who was both the leading actor in Britain and its most successful
theater manager. What happens when the artist becomes patron and seller
as well?
A patronized artist is not producing his or her own property. Bach's
work, as that of any other patronized artist, belonged to either the patron
or to the state. And in the great era of patronized artists, the state
evidenced very little concern about the kind of casual borrowing that its
artists practiced. But, an artist-manager is producing stuff that
belongs to him or her and which, as a matter of necessity, as a factory owner,
he or she must sell in order to pay off capital investment, partners, employees,
and to gain a profit sufficient, if not to make a living, then at least to
continue practicing his or her art. Not surprisingly, and pretty swiftly,
a great concern of artist-managers was the protection of legal rights to
their property. If it were not protected by law, with suitable
retribution for criminal violations, how could an artist be secure in the
knowledge that such work might pay his or her way to the next endeavor?
This is hard to digest for some, including, on occasion, the author.
The borrowing between playwrights, composers, painters, sculptors, novelists
and poets (and even moviemakers) over the centuries has contributed not only
to the rich feedback system that informs so much high art but to the inventiveness
of artists who, in borrowing material, had to make some significant alterations
and variations to call it their own. But, consider, if you don’t
have a patron, and very few of us do, what other system is available but
that of intellectual property rights in which a given work of art is treated
very little differently from a patented design for a new cell phone?
And the system, while there have been many cheats who have left artists bankrupt
despite the law, has worked fairly well. A century of popular lyrics
enriched, at least for a time, thousands of songwriters. There are
some painters, not many considering the utterly vast number of MFA candidates
each year, who can seriously endeavor to make a living as independent painters.
There are a few poets, not many, again because of the stupendous number
of graduating poets produced by American universities each year, who
make a living at it, and many, many more who do so by working in a university.
Filmmakers and novelists make sometimes sensational livings from their
work. There are also vast numbers, by far the greatest proportion,
who don't. One can despair about this, but it's a bit pointless. Two
hundred years ago, a lyricist who showed up expecting to be paid for a new
work based solely on its merits would have to gain the permission of a royal
house or a rich merchant before proceeding. Needless to say, those
who succeeded knew this very well. And not a few, such as the French
composer Lully, relentlessly exploited their relationship with a royal court
to exclude other artists altogether. Is it a price of freedom that
so many should fail?
It is hard to say anything but yes to this question. What does
one really say, ultimately, about a system where visibility or anonymity
in the arts is largely dependent on the artist as manager of his or her own
talent, business dealings, and personal risk of his or her own capital (or
what he or she can borrow) in pursuit of excellence?
After all, it's not like the 19th century, nearly romantic assumption about
the artist as solitary warrior, a sort of Dale Carnegie with a pen or a paintbrush,
willing the people to buy the work. I doubt very much that
any poet has gone to a bank to ask for a capital financing of a book.
There are numerous institutional and private sources of capital for
artists of all descriptions, from private grantmakers to the NEA.
And there are also a lot of publishers still who are crazy enough to put
their money on books that they can guess from a casual reading of Editor
& Publisher will sell less than a thousand copies. What else can
one reasonably expect as an artist in a democracy?
And how else can an artist of any description, whether an Expansive poet
or a post-Modern composer, expect to be fairly judged today? Like it
or not, if there's no market for an artist's work, there is less reason
to produce it today than there was for a composer in 18th century Vienna
who couldn't convince a patron to support his or her work. In a free
society, an artist can go to tens of thousands if not hundreds of thousands
of potential sources of investment and future audiences. As such, can any
artist reasonably expect, for instance, a subsidy, if books or music produced
do nothing but rot on a shelf? Such subsidy is the stuff of patronage, a
sport, however magnificent the results, for both kings and tyrants, neither
of which has much favor today. We don't argue with that in any other
part of modern life. Why do we still pine for patronage in the arts?
Arthur Mortensen
If menu is not visible at
left, select BACK on your browser.