Two Greats

by Kirk Woodward

[In a recent play report, I wrote of “one of those rare occurrences in theater: the perfect alignment of role and actor” (see my report on Will Eno’s Wakey, Wakey, posted on 24 March).  Well, my friend, and frequent contributor to this blog, Kirk Woodward has just had two versions of that experience: two actors he considers great in roles for which they are uniquely suited.  Curiously, while both performances are of generally equal quality, the plays in which the actors are appearing are not; the ensembles within which the two great performances are embedded, however, are both uneven.   I’ll let Kirk tell you the rest himself and you can decide whether or not you agree with his assessments.  ~Rick]

Theories about theater, and in particular about acting, can be complicated. I’ve added to the complications myself, I’m sure, in various pieces I’ve written for this blog. But when it comes down to it, much of the best of theater comes down to this: a great performer in a great role. I’ve seen two instances of this phenomenon recently: Kevin Kline in Noel Coward’s Present Laughter, and Bette Midler in the musical Hello, Dolly!

Noel Coward (1899-1973) wrote Present Laughter in 1939, as England was buckling down for war. In fact the onset of the war made it impossible to stage the play then. By 1942 the situation had changed; Coward, who had first wanted to work for British Intelligence and in fact had done so briefly in France, now found it his duty (urged on by Winston Churchill himself) to provide entertainment and refreshment for a nation under bombardment by Germany. 

He put together a tour of his plays called Play Parade, consisting of the colossally successful Blithe Spirit (1941), This Happy Breed (1939), and Present Laughter. In his diary (published in 2000 by Phoenix Press as The Noel Coward Diaries) he writes:

War news pretty grim.Stalingrad apparently taken. [It was not seized by the Nazis, ultimately, but at great cost.] I must admit to a personal apathy now regarding the war. I have tried from the beginning to work constructively for the war effort and now, having been driven back to my own métier, the theatre, I cannot work myself up about it any more. This may be sheer escapism, but if I can make people laugh, etc., maybe I am not doing so badly. I only know that to sit at the side of the stage amid the old familiar sights and sounds and smells is really lovely after all this long time. The things that matter to me at the moment are whether or not I was good in such and such a scene and if the timing was right and my make-up not too pale. This is my job really, and will remain so through all wars and revolutions and carnage.

Present Laughter perfectly embodies Coward’s attitude. It is a play about theater. The leading character, Garry Essendine, is a self-obsessed actor of comedic roles, surrounded by a household dedicated to taking care of his whims, none of which he is reticent about expressing, often at the top of his voice. His conversation is mostly about himself and his dreadful struggles as he attempts to share his art with a world that somehow cannot fully appreciate him. We meet his secretary, his ex-wife, his producer, his housekeeper, his valet, his manager, and two outsiders—a particularly persistent female admirer, a very possibly insane young playwright—and Garry’s producer’s glamorous wife, who seems determined to seduce nearly every man she comes in contact with, particularly Garry.

The result is a boisterous farce. Coward played the self-referential lead role himself in the first production (and in one in 1958 in the United States), and he admittedly based the play on his own Noel-centered household, with the prominent qualification that Garry appears to be heterosexual, which Coward was not. In any case, clearly the play is a romp, a trifle . . . except that, I would claim, it is not trivial at all, in the sense that the play, like most of Coward’s work, is a meditation on a theme: in a world of chaos and confusion, how can we manage to live with each other? This question underlies much of comedy, and certainly much of Coward’s, and gives what I would call a subliminal significance to an apparently carefree evening in the theater.

The current revival of Present Laughter on Broadway, which opened at the St. James Theatre on 5 April 2017, was directed by Moritz Von Stuelpnagel. It was generally received by the throwing of hats in the air for Kevin Kline’s highly physical performance, and moderately less enthusiasm for the play, with an overall score of 79 on Show-score.com and a critic’s rating of 7.6 out of 10 on Broadwayworld.com.

Among the less than enthusiastic reviews, Mark Shenton in The Stage (5 April 2017) wrote that Present Laughter “feels lugubrious and weighty rather than effortless. Our taste for the kind of theatrical vanity encapsulated by Essendine has long waned and it seems incongruous that his theatre career could support such a large permanent staff, including housekeeper, valet and secretary, or allow his house to look like Victoria station, with so many people coming and going.” This strikes me as the kind of comment that could be made about nearly any period farce, including for example a number of masterpieces by Georges Feydeau (1862-1921).

Similarly Alexis Soloski in The Guardian (5 April 2017) said that Kevin Kline gives “a performance of stupefying charm that reveals some of the wrinkles and sag in the surrounding play.” Garry Essendine would suffer for months over a comment like that.

In most other precincts the reviews were particularly enthusiastic about the performance of Kevin Klein, which had been eagerly awaited, and they were similar to the point that I can quote a few as typical. Ben Brantley in The New York Times (all the reviews quoted were posted on line on 5 April 2017) called the production “uneven” but said that Kevin Kline gives “a paradoxically natural performance as a man for whom the histrionic gesture is a conditioned reflex. Every move he makes turns genuine emotions into a pose, which doesn’t discount the authenticity of the flickering melancholy within.” On the other hand, Brantley feels the production works too hard, emphasizing “the more boisterous aspects of Coward’s comedy, occasionally to hilarious, but just as often labored, ends. And the pace needs to be picked up throughout.”

But Matt Windman in amNewYork says that Kline “is careful not to overplay the comedy, with the intention of giving a fully rounded performance,” and Linda Winer in Newsday seems to agree: “this is a revival that, despite a cast of farce experts, treats the broad moments as rare offhand treats that flash suddenly on characters as momentary glimpses into humanity’s silliness.” Comedy, we note again, is a matter of taste. What is trivial to one may be significant to another, as illustrated by Jesse Green’s review in Vulture/New York magazine, which I quote at more length because he also agrees with my response to the rest of the cast:

The scene in which [Essendine] finally calls out the sexual subterfuges of his comrades—and definitively rids himself of his own extraneous women—successfully counterweights the play’s many trivialities. Most of the rest of the cast, under the direction of Moritz von Stuelpnagel, seems to have got the same memo: Play the problems, not the jokes. I was especially impressed with the women. Cobie Smulders, a star of How I Met Your Mother making her Broadway debut as Joanna, not only looks sensational in gowns by Susan Hilferty but finds a core of valor in a typically odious character. Kate Burton—who played the ingénue Daphne opposite George C. Scott in 1982—brings exceptional clarity and warmth to Liz, who can sometimes come off as a scold. And Kristine Nielsen is hilarious as the trusty secretary [Monica Reed].

My own opinions, for what they are worth, are that Coward’s plays are frequently misinterpreted because reviewers often cannot see beyond their own preconceptions, and that a comic performance like Kevin Kline’s is a connection to the greatness of theater that must be celebrated. Every moment of his performance is a tribute to the ability of the theater to astonish us in unexpected ways. His actor’s creativity is completely invested in the service of the play. The word “great” can be used in such occasions.

I referred above to Kevin Kline’s performance as “eagerly awaited,” and those words hardly describe the anticipation for Bette Midler’s performance as Dolly Levi in the musical Hello, Dolly! (book by Michael Stewart, music and lyrics by Jerry Herman, originally on Broadway from 1964 to 1970 for 2,844 performances) which opened on 20 April 2017 at the Sam S. Shubert Theatre in Manhattan.

I saw the show at a preview performance on 21 March 2017; I arrived early, at about 7:30 PM, for an 8:00 PM performance, and saw to my amazement the line to enter the theater already stretched out of the theater, across Shubert Alley, and down the next block for hundreds of feet in each direction. The line, please note, was made up of people who already had tickets. Their seats were assigned! But they had to get in the theater. Bette was doing Dolly! The enthusiasm continued throughout the show. It was part performance, part celebration.

I admire Bette Midler greatly. I first saw her twice in her Clams on the Half Shell revue in 1975, an experience that those of us who saw it will not forget. Her combination of singing, comedy, and acting talent was overwhelming. As a performer she could turn on a dime, going from shameless sentimentality to the crudest bawdiness in seconds flat.

She had first performed on Broadway in the role of Tzeitel in Fiddler on the Roof from 1966 to 1969; she was back in 2013 as the agent Sue Mengers in the one person show I’ll Eat You Last at the Booth Theatre, in a successful production that I somehow managed to miss, for reasons I’ll never understand. She recorded fourteen studio albums, was nominated for an Oscar twice, and generally kept herself busy. But she had never played the lead in a Broadway musical until Dolly.

I would think that it would take a star of Midler’s magnitude to make a Broadway revival of Hello, Dolly! a success today. It is impossible now to listen to Jerry Herman’s score without an awareness of the enormous changes that Steven Sondheim brought to the musical in songs that develop character while moving the stories along—sometimes they are the stories. The songs in Dolly are songs, attractive and often memorable but, with rare exceptions, not dramatic in themselves, and my impression is that in today’s theater they feel simply unsatisfactory.  [Kirk has discussed some of his conclusions about show songs in “Theatrical and Popular Songs,” posted to Rick On Theater on 2 October 2011.]

The book of the musical is based on Thornton Wilder’s play The Matchmaker (1954), based on an earlier play by Wilder called The Merchant of Yonkers (1938), in turn based on Johann Nestroy’s play Einen Jux Will Er Sich Machen (“He’ll Have Himself a Good Time,” 1842, successfully adapted in 1981 by Tom Stoppard as On the Razzle), which in turn—we’re at the end of the list now—was based on a one-act play by John Oxenford called A Day Well Spent (1835). The Matchmaker had a respectable run on Broadway, but none of the iterations of the story is generally considered a masterpiece, including The Matchmaker, which although written by the author of Our Town, is seldom performed today. (Eric Bentley, reviewing The Matchmaker in The New Republic in 1954, wrote that “I agree for once in my life with the dramatic critic of The New York Post who spoke of Mr. Wilder as teacher being jolly with the class.”)

So Dolly is not based on sensational material, the way that, say, My Fair Lady was based on Shaw’s Pygmalion. My conclusion is that today Hello, Dolly! needs a star in order to succeed, and in Bette Midler it has one. The reviews for Dolly have been overwhelmingly favorable, with a critics’ rating of 86 out of 100 on Show-score.com. The only negative review I saw was by Terry Teachout of The Wall Street Journal (20 April 2017, like all the reviews quoted here), who appears to have seen a different show than I did. Teachout writes, “Ms. Midler’s singing voice is in a desperate, sometimes shocking state of disrepair . . . . As for the rest of the performance, Ms. Midler doesn’t even bother to act . . . .She can’t dance and isn’t funny . . . . David Hyde Pierce is all wrong as Horace . . . . What’s more, he and Ms. Midler have no romantic chemistry at all, which makes the show even less dramatically plausible . . . . Every supporting performance is a grotesque caricature . . . . As for the musical numbers, they’re camped up to the hilt.”

I can only say that my impressions were different. At the performance I saw, I felt that Midler was not using her full vocal power; she is 71 years old, the role is strenuous, and she’d be foolish to blow out her voice at the start of a run. She had plenty of power for everything she wanted to do. Far from “not bothering to act,” I felt that acting was exactly what Midler was doing—she was giving us a character named Dolly Levi, not a star named Bette Midler. (Perhaps that is why Teachout felt her voice was ragged—because she was, so to speak, singing in character?)

Dancing is only minimally required for the role of Dolly and is supplied, as was traditional in the musical of the time, by others. Midler’s comic timing is magnificent—she wastes no lines, and gets the most out of each of them. David Hyde Pierce is not Walter Matthau (who did the role of Horace Vandergelder opposite Barbra Streisand in the 1969 film adaptation), but then no one else is. Pierce is of course a comic master and brings his own arched eyebrow style of performing to a not terribly exhilarating role. And I felt that the production as a whole, far from being grotesque or camped, stuck to its obvious aim of doing a show from 1964 as it would have been done then if the entire production were sprightly and first-rate.

Aside from Mr. Teachout, the reviewers and I almost all agree. I will let Joe Dziemianowicz’s review in The New York Daily News stand for many: “A dazzling revival . . . this show’s all about Dolly . . . . It’s a role made for personality. And Midler has that—and then some . . . . Type out all the superlatives you can because nights like this in the theater—in which tingles continue from overture to final bow—make you feel overjoyed. That is a tonic for troubled times!” Righto.

As I mentioned, I saw the show at a preview performance, which featured one of those episodes that endear such early peeks to their audiences. David Hyde Pierce, onstage early in the show with a big drum, waited for the set to change, but it did not. A voice came over the loudspeaker: “Ladies and gentlemen, we are experiencing mechanical difficulties with the set. We hope to resume shortly.” Pierce did a small double-take and marched offstage. After a pause, the stage began to change its configuration, at first slowly, then with increasing speed, until the next set was in place. Pierce marched back on stage and said to the audience, “Anyway . . .” And continued with the scene.

Moments like that technical malfunction cheer me up, because they are reminders that even on Broadway, with its astonishing technical resources, what’s happening on the stage is that live human beings are doing what live human beings do, as well as they can. God bless theater. We need it. We realize just how much we need it when exceptional performers like Kline and Midler take part in it. There are other ways that theater can achieve greatness, but from time immemorial, one of the most splendid of those ways is to put great performers on the stage and let them work.

“Great” is a subjective term, of course, but when an individual performer brings to a role a combination of intelligence, imagination, daring, and personal magnetism that lifts the experience of a play into the realm of the unforgettable—as, for me, both Kline and Midler do—surely “great” isn’t too large a word.

[I used to keep a list of the best individual performances I’d seen.  I don’t keep the list anymore—it was only in my head anyway—but Zero Mostel in A Funny Thing Happened on the Way to the Forum (1962) was on it; so was James Earl Jones in The Great White Hope (1968), Gwen Verdon in Sweet Charity (1966), Stacy Keach in Indians (1969), Alec McCowen in Hadrian VII (1969), Ben Vereen in Pippin (1972), Virginia Capers in Raisin (1973), Jim Dale in Scapino! (1974), Henry Fonda in Clarence Darrow (1974), Anthony Hopkins in Equus (1974), Donald Sinden in London Assurance (1974), Meryl Streep in A Memory of Two Mondays/27 Wagons Full of Cotton (1976), Hume Cronyn and Jessica Tandy together in The Gin Game (1977), and Pat Carroll in Gertrude Stein Gertrude Stein Gertrude Stein (1979).  (I’ve seen two or three recent performances that I’d add if I still kept the list.  Michael Emerson in Wakey, Wakey would be one, and probably Jefferson Mays’s turn as seven murder victims in A Gentleman’s Guide to Love & Murder in 2014.)]  

What Constitutes Theft in the Arts?

When I was in college, Lee Kahn, the school’s theater director, used to like to tell us, “The first rule of theater is theft.”  He said that so often that when I began to teach acting and theater myself, I passed his bit of wisdom on to my own students.  What Lee meant, of course, was that as theater artists (the rule didn’t apply just to actors), we should carefully watch other artists, especially the good and great ones (another actor’s admonition, though not one that Lee inculcated, is “Only steal from the best”), and take from them what we find useful and effective (or, maybe, just neat!)—a kind of surreptitious apprenticeship.  Painters do that, too, of course.  You can sometimes see young artists in museums copying the great masters to learn their techniques. 

When I was trying to teach myself how to write, I emulated the styles of writers I admired.  Of course, I didn’t really sound like myself when I did that consciously: I was a poor imitation of good writers, not a genuine writer myself.  I probably still do that—less consciously, I hope—but I think, at least to some extent, I’ve absorbed what I’ve picked up so that, as one of my acting teachers put it, my technique has simply become part of my way of working, no longer artificial and assumed, but an innate part of me.  It’s like the way someone takes on an affectation, a bit of artificially assumed manner—such as an accent with which he wasn’t born or a level of diction he never learned in school—until slowly it actually becomes part of his habitual make-up.  It’s not an affectation anymore, it’s just behavior. 

Musicians, songwriters, and composers follow a path not unlike actors and writers.  Somewhere there’s a line that demarcates emulation, tribute, or homage from outright theft—permanent “borrowing.”  Now, Milton Berle, always accused of recycling other comedians’ jokes, notwithstanding, however, I’ve never heard of an actor actually being accused of (much less charged with) plagiarism.  But writers (remember Doris Kearns Goodwin?) and composer-lyricists can fall prey to the P word and its often very hard to tell where “fair use” leaves off and misappropriation begins.  (I’ve worked for one editor who prohibits any but the most necessary quotations because his publishers won’t pay for them and he doesn’t want to cross the line into improper use.  I couldn’t even quote from the Hart Crane poem from which Tennessee Williams took his title Summer and Smoke, although I’ve always understood that in literary criticism, “fair use” meant writers could quote, with proper attribution, any pertinent statement.)  Sometimes, in a courtroom where the dividing line is under question, the search for it can be downright ludicrous. 

In the most recent prominent case of a charge of plagiarism, the family of Marvin Gaye, who died in 1984 (shot to death by his father), claimed in 2013 that songwriters Robin Thicke and Pharrell Williams copied portions of Gaye’s 1977 pop hit “Got to Give It Up” in their release “Blurred Lines.”  The Gaye family sued Thicke, Pharrell, and rapper Clifford Joseph Harris, Jr. (known as T.I.) who’s featured on the song, for over $25 million in damages for copyright infringement.  On 10 March, the court ruled that Thicke and Pharrell, but not Harris, were guilty of improperly using parts of Gaye’s song and the judge ordered them to pay $7.4 million in damages. 

The verdict has raised many questions and generated vocal responses on both sides of the issue, from those who praise the ruling and those who vehemently disagree.  The Washington Post ran a compilation of short comments by members of its arts and culture staff on plagiarism in fields other than pop music (visual art, fiction writing, stand-up comedy, classical music, and theater) in response to the “Blurred Lines” verdict.  As Peggy McGlone writes in her introduction to the collection, “The recent verdict by a federal jury in Los Angeles may have settled one case, but it has ignited a larger debate about creativity and ownership and how to sort out the co-opted from the copied.”  McGlone, the Post’s local arts reporter, wryly remarks, “Blurred lines indeed,” and observes in the end, “While artists borrow, sample and appropriate frequently, the answer to the question ‘Did they steal?’ is usually no.” 

It can be a prickly question, even when reduced to the simpler-seeming legal issue of copyright infringement.  “There’s no history of art without borrowing, appropriation and in some cases theft,” says Washington Post art and architecture critic Philip Kennicott.  (He was writing about visual art, but his comment is applicable to all the arts.)  Some aspects of a performer’s art can’t be copyrighted.  Lyrics, tunes, even distinctive looks (with respect to costumes, hair and makeup, and even physical appearance; Jackie Onassis successfully sued Christian Dior in 1984 for making a commercial with a look-alike when Onassis refused), but not style—whatever that is.  Take, for example, the 1989 case of Bette Midler against the ad agency Young & Rubicam and the Ford Motor Company. 

In the 1970s, Ford started a TV commercial campaign which featured the singing of well-known singers.  If the original artists didn’t want to make the ad, Young & Rubicam hired a sound-alike to duplicate the song and the singer’s style for the commercial.  When the ad company approached Midler to sing her distinctive cover of “Do You Want to Dance” (from Midler’s 1973 début album, The Divine Miss M), she declined and Young & Rubicam brought in an imitator.  Midler, who (like Jackie Onassis) never makes commercials, took Ford and the ad agency to court in Midler v. Ford Motor Co., but she didn’t sue for copyright infringement because, while copyright law protects the song and her actual recording itself, it doesn’t protect imitations.  (Ford had obtained a license to use the song, so they were on legal grounds there.)  The singer claimed, however, that the imitation was a misappropriation of her identity because the version of the song as she recorded it was unmistakably identified with her, giving a different meaning to “identity theft.”  (The legal issues of this case are complex, but this is not the forum, nor am I competent, to discus them.)  Though Nancy Sinatra had lost a similar suit against Goodyear Tire & Rubber Co. in 1970 for their use in a tire commercial of “These Boots Were Made For Walkin’,” a song strongly connected to her, Midler won her case on appeal (the original trial court had denied her claim).  She had sued for $10 million but was awarded $400,000; however, Madison Avenue was put on notice. 

Because these cases often concern plaintiffs or defendants who are performers, the court cases can get . . . well, interesting is a neutral way of describing them.  (“Bizarre” would probably be more accurate.)  For instance, in a 1989 case, comedy writers E. J. Novak and Debra Studer, a husband-and-wife team, sued NBC, the producers of Saturday Night Live, for copyright infringement in Novak v. National Broadcasting Co., Inc., claiming the network and SNL had taken material the duo had written in 1985 for a local program called Video Vault on independent station WOR-TV (New York City channel 9 and now known as WWOR) and reused it in six 1985 and ’87 sketches about, among other topics, the mobster Lucky Luciano, Attila the Hun, Frankenstein, and “The Fifth Beatle” (fictional oboist Wingo Murray).  Novak and Studer, who pursued NBC on this issue for over four years, ultimately lost their suit—but not so much on the merits themselves (although the judge found legal reasons to dismiss their cause), as the fact that the comedy writers pissed the judge off in court and in documents they filed. 

Novak and Studer’s principal error was that unlike most plaintiffs and defendants in plagiarism cases, they didn’t hire lawyers to represent them: they pleaded their own case at trial.  (NBC was represented by a white-shoe Manhattan firm.)  This decision led the plaintiffs to turn the courtroom into what the judge called a “playground for comics.”  After two years of polite exchanges between Novak and Studer and the defense attorneys, in 1989 they wrote the lawyers a note addressed to “Dear Laurel and Hardy” because of their physical appearances.  When the attorneys complained to the judge, Novak countered, “Their inconsistency and lack of consideration, even by attorneys’ standards, transcends the boundaries of law and enters that funny little netherworld we call—the Rudeness Zone.”  He then sent the defense team another note greeting them simply as “Stan” and “Ollie.”  In his turn, Novak complained to the judge, “The sight of Mr. Jones [one of the defense lawyers] rolling toward us in anger is a terrifying experience reminiscent of scenes from either ‘The Honeymooners’ or ‘Mutual of Omaha’s Wild Kingdom.’”  “‘Legal humor’ may or may not be an oxymoron,” observed the New York Times.  “But attempts at it can prove costly.” 

The judge took such exception to Novak and Studer’s verbal antics, he not only decided against them in the lawsuit, but assessed them $3500 in court costs (over $6800 today).  The Times reported that Novak alleged in an interview that he and his partner “were victims of pernicious linguistic discrimination.”  “We could have said, ‘Your Honor, according to habeas corpus writ dictum, this was dilatory and deceitful,’ but I’m not a lawyer,” said Novak. “We used humor where they used legalese.”  He added that the only people who were actually hurt by his language were Stan Laurel and Oliver Hardy, “because they were compared to these lawyers.”  However amusing and clever Novak and Studer were, they essentially scuttled their own legal boat when they took their professional tactics into what the Times labeled “the generally unfunny world of litigation.”

Possibly the strangest case with respect to courtroom demeanor was the 1985 copyright infringement suit brought against Mick Jagger of the Rolling Stones.  Reggae singer-songwriter Patrick Alley sued Jagger for copying his song “Just Another Night,” which he said he’d recorded in 1979 and released on his 1982 album, A Touch of Patrick Alley, for Jagger’s own song of the same title (titles aren’t copyrightable) from the Stones frontman’s first solo album, 1985’s She’s the Boss.  The court in White Plains, New York, decided in 1988 that Jagger hadn’t stolen Alley’s song.

Patrick Alley v. Mick Jagger itself was relatively straightforward, but the presentation of the evidence offered in court was . . . I’d say it was unique.  In addition to presentation of transcriptions of the lyrics of both songs (by dueling experts, of course), as you would expect, according to the report in the New York Times, the testimony consisted of music, both live and recorded.  During the weeklong trial, a Juilliard instructor played the piano; Sly Dunbar, a Jamaican studio musician, performed on drums; and Jagger sang from the witness stand bits of his recordings “Jumpin’ Jack Flash,” “Brown Sugar” and “Miss You.”  Predictably, taped recordings of Alley’s “Just Another Night,” a minor-key reggae ballad, and Jagger’s identically-titled up-tempo rock song were played in court as well.  Jagger also played work tapes to show the development of the song, and attorneys on both sides sang snippets of the two compositions.  Jagger signed autographs during breaks in the trial, and on the day before the verdict was rendered, when the jury deliberated for 3½ hours, fans broke through a courtroom door and tried to reach the Stones singer-guitarist. 

While the rest of the case was just what you’d expect in a copyright infringement trial for a piece of music—similar in most ways to other musical plagiarism cases such as the 1971 suit against Beatle George Harrison alleging that he copied the Chiffons’ 1962 charter “He’s So Fine” for his own 1970 hit “My Sweet Lord” (Harrison lost, but the judgment was small); Michael Jackson’s successful 1984 and 1993 defenses of his song “The Girl Is Mine” (recorded in 1982 in a duet with another former Beatle, Paul McCartney), first against Fred Sanford, writer of the song “Please Love Me Now,” and the second against songwriters Reynaud Jones and Robert Smith; and the case against the Bee Gees, also in 1983, charging that they’d stolen 1977’s “How Deep Is Your Love” from Chicago songwriter Ronald Selle’s 1975 song, “Let It End,” a suit which the group initially lost in the jury trial before the judge overturned the verdict and found for the Gibbs—the proceedings in court have always made me feel that the Jagger trial should be staged as a theatrical performance.  I mean, really: singing lawyers!  (Not to mention reggae and rock ’n’ roll music—it’s got hit written all over it!)  Can’t you just picture it?

The most absurd case of alleged plagiarism in the pop-music world, however, has to be the suit brought against John Fogerty, the principal songwriter of Creedence Clearwater Revival, in San Francisco in 1988.  As we can see, most cases of artistic theft are brought by one artist (or sometimes just a rights-holder) against another and the charge is invariably that the defendant has stolen intellectual property from the plaintiff.  In the Fogerty suit, the plaintiff was Fantasy, Inc., a company that owned the rights to Fogerty’s compositions for CCR from 1967 to 1972; the defendant was, of course, Fogerty.  But the charge was that the songwriter had stolen not from another songwriter, but . . . from himself.  Really?  Can you even do that?  How the hell can someone rationalize a charge like that?

But that’s what Saul Zaentz, owner of Fantasy Records (a division of Fantasy, Inc.), did.  He charged in Fantasy, Inc. v. Fogerty that Fogerty had plagiarized his own 1970 CCR hit “Run Through the Jungle” to produce his 1985 composition “Old Man Down the Road,” released on his 1985 comeback solo album, Centerfield.  Since Fantasy owned the rights to “Run Through the Jungle,” but not “Old Man,” written after CCR broke up in 1972, Zaentz could claim Fantasy’s copyright to the older song had been infringed—if he could, in fact, prove that Fogerty used the CCR hit to create his comeback number.  If the court bought Zaentz’s argument, it would mean that Fogerty had plagiarized himself.  Now, I have no legal training (despite the fact that I have lawyers all over both sides of my family, from uncles to cousins and now to those cousins’ children), so maybe it’s even possible for a court to entertain such a charge.  But in the rational world outside the courthouse, the one I live in, this is an absurd concept. 

One of Fogerty’s lawyers pointed out, “What similarities there were between the two songs were the result of Mr. Fogerty having written both of them,” which seems a no-brainer to me.  The attorney added, “Both of them came out of the same musical vocabulary,” and the songwriter pointed out at a news conference after the court case that the work of composers, writers, and singers exhibits the hallmarks of the artists’ individual styles.  In fact, I’d assert, that very similarity among an artist’s works is what constitutes her or his “style.”  It’s what we recognize immediately when we hear a song by a composer or singer we know, read a passage from a writer with whose books we’re familiar, or see a performance by an actor whose movies, TV shows, or plays we’ve seen before.  (In fact, it’s what analysts who do computer comparisons with a newly-discovered work and a known piece of writing rely on to determine if the new discovery is the product of the known writer, like, say, Shakespeare or Dickens.  It’s those similarities that make up the style the scientists line up to measure the degree of match.)  It’s not copying, at least not in a conscious way, it’s the innate characteristic of one artist’s art.  We recognize a van Gogh painting at a single glance because of the similarities it reveals to all the previous van Gogh paintings we’ve seen.  If artists are barred from using this stylistic attribute of their creativity, then that creativity will be severely impaired—if not destroyed entirely.  (Perhaps Zaentz and Fantasy had this in mind as a consequence of their action: to prevent Fogerty from creating new songs that would compete with the CCR catalogue they owned.)

In the end, the jury found that Fogerty hadn’t stolen from himself and Fantasy lost the suit.  I’d insist that Fogerty, or any artist, can’t steal from himself: it’s a metaphysical impossibility.  Fantasy appealed and lost again.  Fogerty sued the company for payment of legal costs in the suit, and after the trial court denied his claim and the Court of Appeals upheld that ruling, the singer-songwriter pursued Fogerty v. Fantasy, Inc. to the Supreme Court and won in 1994—almost a decade after Fantasy, Inc. v. Fogerty was brought.  Fogerty v. Fantasy, Inc. was a precedent for awarding court costs to the winner in a copyright litigation, whether the plaintiff or the defendant, especially where the suit had been brought or defended frivolously or in bad faith.

The fact, whether recognized by the courts or not, is that emulation in the arts is not just common, but necessary.  Kennicott writes in the Washington Post, for instance, that without appropriation, “there’s almost no art to talk about.”  Shakespeare and Chaucer, observes Ron Charles, a Post book reviewer, both borrowed material for their literary masterpieces.  Artist Fernando Botero created his own Mona Lisa in 1977, derived from Leonardo da Vinci’s portrait, painted in the early 16th century.  Pyotr Tchaikovsky appropriated  “La Marseillaise,” written and composed in 1792 by Claude Joseph Rouget de Lisle, for his 1812 Overture in 1882.  “Good artists borrow,” writes Post classical music critic Anne Midgette, attributing the line to Igor Stravinsky, “great ones steal.”  Copyright law, however, only protects exact words, musical phrasing, and images, so none of these examples would fall if haled into court.  What Post theater reviewer Nelson Pressley calls “the magpie culture of borrowing and re-appropriation” is a cornerstone of most artistic creation, whether it’s done to make a point, a comment, or an homage. 

Sometimes, the borrowing is part of a lengthy, attenuated conversation: Midgette describes how Dmitri Shostakovich quoted a passage from Franz Lehar’s The Merry Widow (1905) in his own Seventh Symphony (c. 1939-40) and then Béla Bartók picked it up and used the line again in Concerto for Orchestra (1943), each use a comment on the previous incarnations.  In theater, where Pressley says outright appropriation is rare, Lorraine Hansberry’s A Raisin in the Sun (1959) gave birth to Bruce Norris’s 2011 Pulitzer Prize-winning Clybourne Park, which picks up where Raisin left off and focuses on new issues and situations; Clybourne and Raisin then generated Kwame Kwei-Armah’s 2013 Beneatha’s Place, both a sequel to Raisin and a reply to Clybourne.  No matter how or why these and other creations are developed, they’re wholly independent works of art that have never been—nor should be—labeled plagiarism. 

Let me amend Lee Kahn’s admonition to his theater students: “The first rule of art is theft.”