"What Is a Song?"

by Ben Sisario 

[Last year, a federal jury found that Ed Sheeran did not copy Marvin Gaye’s 1973 classic “Let’s Get It On” for his 2014 hit “Thinking Out Loud,” in the music industry’s highest-profile copyright case in years.  But the courtroom didn’t hear Gaye’s sensuously sung original recording.  Instead, the jury was played a bare, electronically recreated track with a robotic voice.  It brought up a curious question: “What is a song?”   

[This is the topic of Ben Sisario’s article in the New York Times “Arts” section of 6 May 2024, republished below.  I’m posting it on Rick On Theater because it harks back to my post of 5 May 2015, “What Constitutes Theft in the Arts?” (Rick On Theater: What Constitutes Theft in the Arts?), about some court cases and accusations concerning charges of plagiarism in the performing arts.]

One response is simply the music flowing out of your earphones. But legally, the answer is quite a bit more complicated.

For most music fans, a song is a simple thing to define: It’s the melodies, the lyrics, the grooves that come out of your speakers.

It’s a much thornier question when it comes to copyright law, one that has been tested in a series of high-profile lawsuits over the last decade, involving stars like Ed Sheeran, Led Zeppelin, Pharrell and Robin Thicke [the Williams-Thicke case, Pharrell Williams, et al. v. Bridgeport Music, et al. (decided on 22 March 2018), is mentioned in the above-referenced post]. Is songwriting defined by what you hear on a recording, or the notes inked long ago on a piece of sheet music? Where does a composer’s work end, and a performing artist’s begin?

In other words, what, exactly, is a song, in the eyes of the law?

In many music copyright disputes, one of the main issues is originality, or how the law sets a boundary between creative expression that is the property of a single artist versus material in the public domain. Last year, a federal jury in New York heard hours of expert testimony about whether a syncopated four-chord sequence in Marvin Gaye’s “Let’s Get It On” was distinctive enough that Sheeran’s song “Thinking Out Loud” infringed on it — or whether, as Sheeran’s lawyers contended, those parts are generic “building blocks” that no musician can own [Kathryn Townsend Griffin, et al. v. Edward Christopher Sheeran, et al. (decided 4 May 2023)]. The jury ruled in Sheeran’s favor, finding that he and a co-writer had created their song independently and not copied from Gaye’s 1973 classic.

But a key question running through that trial was about something even more fundamental: whether the core of “Let’s Get It On” — and what is protected by its copyright — is determined by the sounds we hear on its original recording, or the notes written on yellowing sheet music stored at the Library of Congress.

That issue was at the  center of an appeals court’s decision four years ago regarding Led Zeppelin’s “Stairway to Heaven” [Michael Skidmore v. Led Zeppelin, et al. (appeal decided on 9 March 2020)] and it is being considered in another appeal related to Sheeran and “Let’s Get It On.” Many experts believe it’s an underexplored question that gets to the heart of how copyright law intersects with music.

“This is the deep, existential, metaphysical question at the center of music copyright: We don’t even know what it is,” said Jennifer Jenkins, a law professor at Duke.

It is also an important question for an industry that in recent years has poured billions of dollars into deals for song catalogs, partly on the faith that their underlying copyrights offer robust protection against infringement. That may be challenging for older songs, because of a quirk in the law that can restrict how a song is defined and, therefore, just what its author owns.

Getting copyright protection

There is a key date related to this issue: Jan. 1, 1978, when the last major revision of United States copyright law [Duration of Copyright] took effect.

Since then, songwriters have been able to register a composition with the Copyright Office by submitting a recording; all the melodies, chords and lyrics on it are considered evidence of their work. But earlier songs were subject to the Copyright Act of 1909, which required that songwriters submit transcribed sheet music, known as deposit copies.

For a century, these deposit copies were little more than receipts in a copyright paper trail. But since the “Blurred Lines” case a decade ago, when Pharrell and Thicke were found to have copied Gaye’s “Got to Give It Up” and ordered to pay more than $5 million in damages [equivalent to $6.2 million today], these once-obscure documents have taken on a greater significance.

The judge in that case ruled that, under the 1909 law, the deposit copy for “Got to Give It Up” (1977) determined the “scope” of that song’s copyright. In other words, only the notes on its paper submission counted as representing Gaye’s songwriting creation, and any other elements that were on the song’s recording but not the deposit copy — like percussion and studio atmospherics — were not part of the underlying composition. (A separate copyright applies to the recording.) The jury, instructed to consider only what was on Gaye’s deposit copy, found that “Blurred Lines” had copied from it.

These deposit copies can be minimal, sometimes featuring just a vocal melody and indications of chords. The one for “Taurus,” a 1967 piece by the psychedelic rock band Spirit, which Led Zeppelin was accused of copying on “Stairway to Heaven,” is a single-page sketch of barely 100 notes, and a lawyer representing Michael Skidmore, a trustee of the trust that owns rights to “Taurus,” argued that it was not even an accurate transcription.

The deposit copy for “Let’s Get It On” is five pages but omits elements like piano, drums and guitar — including the wah-wah opening guitar lick that has been a Pavlovian call to the dance floor at many a wedding — that are part of the signature sound of Gaye’s original track.

The judge overseeing Sheeran’s trial, citing an appeals court’s detailed decision in the Led Zeppelin case, ruled that the absence of those elements from the “Let’s Get It On” deposit copy meant that lawyers for the plaintiffs — family members of Ed Townsend, Gaye’s co-writer and producer [Townsend had died in 2008; Gaye died in 1984] — had to restrict their arguments to the vocal melody and the chord pattern. That restriction likewise applied to Alexander Stewart, a music professor at the University of Vermont, who testified as an expert witness for the plaintiffs.

“Every time I opened my mouth and said the word ‘bass line,’ I was cut off,” Stewart said in an interview. “It was hard to make any cogent argument.”

Following a ruling by the judge, Gaye’s recording was never played for jurors. Instead, they heard an electronic realization of the deposit copy, submitted by the defense. It included bare piano chords and a robotic-sounding vocal — an oddly cold interpretation of one of pop music’s supreme erotic anthems. As the track played, quizzical expressions came over a few jurors’ faces.

Some scholars say the legal distinction between a composition in a deposit copy and what appears in a finished recording is a sign that the law has not kept up with how pop music has been made for decades. Very often, songs are created in the recording studio, and the line between composing, producing and performing can be fuzzy.

“It is completely divorced from actual music-making practice,” said Joseph P. Fishman, a professor at Vanderbilt Law School.

Jenkins, of Duke, said these cases point to one of the basic complexities of applying copyright — a concept originally made for books and other written material — to music.

“Music is first and foremost an auditory art form, but for most of copyright’s history it’s been defined as something you see,” Jenkins said. “There’s this disconnect, where the signifier — that written thing — is what a composer owns, but the signified is what the song actually is. It’s what we’re listening to.”

‘A Lousy Rule’

Exactly why deposit copies have gone from obscure legal formalities to hot topics in some of the biggest music lawsuits of the last decade is unclear. One theory is that historically, most accusations of infringement have involved the most prominent elements of a song, like the hook, vocal melody or lyrics — things that even the plainest sheet music would highlight.

But as pop music has evolved, and techniques like sampling have become standard, it has also become more common for background elements and secondary parts to be in dispute. many recent cases, like those over “Blurred Lines” and Katy Perry’s “Dark Horse” [Marcus Gray, et al. v. Katy Perry, et al. (decided 16 March 2020)], have focused on these aspects. (To some observers, the “Blurred Lines” verdict seemed to give the Gaye estate control over a loose rhythmic groove, though lawyers argued that it involved specific notes on a deposit copy.)

David Pullman, an investor whose company Structured Asset Sales is bringing the Sheeran appeal — he is best known for creating “Bowie bonds,” backed by David Bowie’s music royalties, in the 1990s — said he believes that many current artists borrow too much from popular old songs. “It’s easier to take a shortcut and infringe,” Pullman said in an interview, “than write a song that’s original.”

The history of the Sheeran case, now before the U.S. Court of Appeals for the Second Circuit, is complex. Structured Asset Sales, which owns an 11.11 percent interest in “Let’s Get It On,” filed its own suit over “Thinking Out Loud” after a judge blocked the company from joining the Townsend family’s original action.

Structured Asset Sales’ suit was dismissed by a district court judge shortly after Sheeran won at trial last year. In its appeal, the company argues that a deposit copy does not necessarily define the scope of a song’s copyright under the 1909 law, and that the material on the sheet music only needs to be sufficient to identify it, despite the law’s reference to a “complete” copy. In court papers, Hillel I. Parness, a lawyer for the company, argued that expert witnesses should be able to interpret deposit copies for the jury, as happened at a trial involving the singer Michael Bolton in 1994.

[In Three Boys Music v. Michael Bolton, the jury found on 25 April 1994 that Bolton’s “Love Is a Wonderful Thing” (1991) had infringed the Isley Brothers’ copyright for “Time, Love and Tenderness” (1991). On 9 May 1994, the court entered judgment for $5.4 million ($11.4 million in 2024) in favor of the Isley Brothers. The verdict withstood several appeals and survived as decided in 1994.]

Sheeran’s lawyers argue that the deposit copy rule is clear from the law, and is supported by longstanding guidance from the Copyright Office. At oral arguments last month, Donald S. Zakarin, a lawyer for Sheeran, also warned that straying from a deposit copy’s notation could lead to problems of “subjectivity” when defining a musical work that is in dispute.

“Future authors,” Zakarin said, “are going to be subjected to, ‘No, no, no, I intended to have that bass line. I know it’s not there, but I intended it.’”

In an informal survey of about a dozen intellectual-property experts, most said Sheeran’s side had the stronger argument about deposit copies under the 1909 law. “It’s a lousy rule,” said Fishman. “But that does seem to have been the rule at the time.”

But this rule, as set down in the Skidmore v. Led Zeppelin appeal, has at least one prominent skeptic in Paul Goldstein, a professor at Stanford Law School who is the author of a widely cited copyright treatise.

“Where I disagree with Skidmore,” Goldstein wrote in an email, “is in its assertion that the fact the copyright was secured by deposit of a copy of the musical work implies that the deposit copy defines the scope of copyright in the work to the exclusion of any other relevant evidence.” That evidence, he said, could include things like drafts and correspondence around a song’s creation.

Goldstein pointed to another possible source of evidence: sound recordings submitted to the Copyright Office as a supplemental registration. Under that theory, a songwriter with a deficient deposit copy of an old song could, since 1978, submit a recording of it to cover any additional elements — bass lines or guitar solos, for example — absent from the original registration.

This workaround was suggested by the Copyright Office and the Justice Department in an amicus brief filed in the Led Zeppelin appeal. It was apparently little known at the time, though Structured Asset Sales’ court papers note that in 1988, the music publisher for the Rolling Stones’ song “Sympathy for the Devil” submitted that track’s 1968 studio recording to cover a new “arrangement.”

Pullman, of Structured Asset Sales, said that discussion of this workaround during the Led Zeppelin appeal led him to submit the recording of “Let’s Get It On” as a new registration in 2020, to cover any compositional elements not on the deposit copy — which could be more ammunition in a dispute against Sheeran’s “Thinking Out Loud.”

Could it work? So far that issue has not been tested by the courts.

[Ben Sisario has been covering music and copyright for more than a decade, including trials involving Ed Sheeran, Led Zeppelin and the song “Blurred Lines.”  He’s reported on the music industry for the Times since 1998.]

Plagiarizing Oneself . . .

. . . And Other Courtroom Inanities

[Back in the 1980s and ’90s, I kept a collection of clippings and notes that I thought could be ideas for plays.  Since I’m not a playwright, though, I never followed up, so the notes and ideas sat accusingly in a folder. 

[Then along came Rick On Theater in March of 2009 and I repurposed several of the ideas into blog posts: “The Group of Hissed Authors” (7 May 2009), “Romeo Coates” (30 May, 31 May, and 2 June 2009), “Sailor on Horseback” (1 September 2009), “Akhzivland” (24 December 2010).  The posts aren’t as exciting as plays would have been, but at least the ideas didn’t die entirely.  And they made pretty good posts, I thought.

[Among the ideas was one represented by a number of clippings about lawsuits concerning the plagiarism of one artist’s work by another or the asserted ownership of the rights to the work or story of one party by another.  They all struck me as examples of “the arrogance of producers who push their ownership rights to absurd lengths.”  Some of the cases struck me as so absurd that I kept the clippings for future possibilities. 

[Now I wonder if the copyright stories could make a decent post.  All the fun of seeing a staged version of the hearings will be lost—I’d have to describe it rather than show it live on stage with singing, playing, and dancing.  (There was no dancing in the trials, but in my head, there’d have to be—raucous, even—in the plays.)  Here, then, is my attempt to capture the inanities of some of these absurd cases.]

In February of 1989, in an instance I labeled “the height of that arrogance” which I mentioned in my introduction above, the producer of Three Faces of Eve (1957) claimed that the release signed by the woman whose situation was the factual basis of the movie gave 20th Century Fox the rights to her entire life, permitting them to prevent her from selling the film rights to a new book she’d written.  

As reported in the 1-7 February 1989 Variety, Chris Costner Sizemore (1927-2016) sued Fox on the argument that the release she signed in 1956 didn’t permit the studio to prohibit her from selling the movie rights to her forthcoming book. 

Sizemore, even though Three Faces was a huge hit, earning $1.4 million in the U.S. when it was released, had received only $7,000.  Aside from that, she was still mentally ill when she signed the release in the office of Corbett H. Thigpen, who acted as her agent as well as his own agent, even though he was also her psychiatrist.

(The new book was published by William Morrow & Co. in September 1989 as A Mind of My Own, but at the time of Variety’s publication of this notice, it was called In Sickness & in Health . . . .  In 1958, under the name Evelyn Lancaster, Sizemore had written Strangers in My Body: The Final Face of Eve with James Poling and, in 1977, she published I’m Eve, written with a cousin, Elen Sain Pittillo.  The 1989 book recounts Sizemore’s life since her recovery from multiple-personality disorder.)

Fox claimed that the 1956 release did, in fact, give it the rights to Sizemore’s whole life, not just the years covered by the movie, which was based on the book of the same title (McGraw-Hill, 1957) by her psychiatrists, Thigpen (1919-99) and Hervey M. Cleckley (1903-84).

Sizemore ultimately accepted a settlement from the studio and no further movie was made.  The case, particularly Fox’s claim to ownership of Sizemore’s entire life story, including the part that hadn’t even happened yet, struck me as an example of the hubris of the rich and powerful—with deep pockets and scores of lawyers to fight through the courts till the individual is brought to heel.  Even when they lose in court, they manage to win on the bottom line.

My friend Kirk Woodward, who comes from a family of lawyers (see his post “A Lawyer and a Life,” posted on Rick On Theater on 11 November 2010), told me of another case that illustrates this same haughtiness.  

In a case litigated by his cousin on behalf of Dr. David Maurer (1906-81), a professor of linguistics at the University of Louisville who wrote a number of books about underworld argots, including The Big Con (originally published by Bobbs Merrill, 1940).  Maurer’s book was used as a source for Universal Pictures’ 1973 The Sting without permission.  In 1974, the author sued Universal for $10 million for plagiarism.

Kirk told me that while his cousin was chasing down evidence in the Sting case, Universal told him to feel free to look through their files.  He found a letter saying, essentially, “We’ve based the script on Maurer’s book, but we just won’t tell him.”  

“A smoking gun,” concluded Kirk.  Maurer settled the case with Universal in 1976 for $300,000, but the studio delayed paying restitution until Maurer died.

Back in the ’80s and ’90s, there were a number of lawsuits concerning the plagiarism of an artist’s work.  Some of the cases struck me as absurd, so I kept the clipping file for future possibilities.  

One case was against John Fogerty (b. 1945), former lead singer and guitarist, and principal songwriter of the rock band Creedence Clearwater Revival from 1967 to 1972.  Fogarty was sued by the group’s former music publisher, Fantasy Inc., who owned the rights to CCR’s old catalogue from 1967 to 1972.  

In 1988, Fantasy accused Fogerty of plagiarizing himself by using a chorus from his 1970 hit “Run Through the Jungle” in a 1984 song “Old Man Down the Road” (which the company didn’t own).  The record company asked for $140 million in damages.

I’m not even convinced that an artist can plagiarize him- or herself to start with, but in this case, the reappearance of elements from one song (or painting, poem, novel, play, or any artwork) to another, I argue, is what makes an artist’s “style”—the thing that makes him or her unique and recognizable.  It’s innate in his or her art, not a copy of something done before. 

Fogerty, himself, complained, “I was sued for sounding like myself”!  His lawyer, Kenneth I. Sidle, of the Los Angeles firm of Gipson, Hoffman & Pancione, explained it this way: “What similarities there were between the two songs were the result of Mr. Fogerty having written both of them.  Both of them came out of the same musical vocabulary.” 

At a press conference after the hearing, Fogerty said the importance of the case was that it raised the possibility that if he lost, artists could be forced to change their creative styles lest they be sued for stealing their own ideas. 

The press reported that Fogerty revealed: “I saw the specter of a nightmare looming.  I could see William Shakespeare, John Lennon, Bob Dylan and Bruce Springsteen saying, ‘John, don’t blow this.’”

The hearing turned into something of an ad hoc performance—an impromptu mini-concert, if you will.  (We’ll see this again in an even more elaborate presentation shortly.)  Musicologists, of course, appeared at the trial as expert witnesses for both the plaintiff and the defendant.  Then Fogerty took the stand with his guitar to make his point.  

Over a day-and-a-half, the defendant played, riffed, and sang from his works like ''Proud Mary'' and ''Fortunate Son'' to show the way the songs developed and told tales from rock history.  The six-member jury, Fogerty’s principal audience for this special performance, was entertained.

Fogerty won the case.  After just two hours of deliberation, the jury found that the two songs weren’t “substantially similar,” the legal standard that would have constituted copyright infringement.  

A later judge summarized the verdict as “tantamount to a finding that similarities between ‘Run Through the Jungle’ and ‘Old Man Down the Road’ were attributable to the uncopyrightable elements of the ‘Swamp Rock’ genre and Fogerty’s style of songwriting.”

(“I have had a lot of trouble with Fantasy Records,” Fogerty told Adam Sweeting of The Guardian newspaper.  Centerfield, the 1985 album that contained “The Old Man Down the Road,” also included the songs “Mr. Greed” and “Zanz Kant Danz.”  

(These songs were universally understood to be attacks on Saul Zaentz [1921-2014], the owner of Fantasy Records, who instituted a $144 million suit for defamation, claiming that Fogerty portrayed him as “a thief, robber, adulterer, and murderer.”  The two sides settled that suit out of court.  Fogarty did also eventually change to title of the second track to “Vanz Kant Danz” to avoid further legal charges.

(Then there was the matter of Fogerty’s court costs.  Following the lawsuit, the singer-songwriter turned around and sued Zaentz and Fantasy to recover his legal fees and his lost income.  Fogerty lost the first trial because the judge interpreted the law as limiting cost recovery to plaintiffs, not defendants; so Fogerty appealed the verdict.  

(The musician lost again, but decided to see the case all the way to the supreme court.  SCOTUS unanimously decided in 1994 that the standard interpretation of the law was wrong and that a victorious defendant should be allowed to recover; the case was returned to the trial court for reconsideration.  

(This time, Fogerty won and was awarded $1.3 million for attorney’s fees—but he didn’t recover anything for his claim of lost income from not being able to write or perform during the long period of the legal actions, which began in 1985.)

“‘Legal humor,’ wrote David Margolick in the New York Times, “may or may not be an oxymoron. But attempts at it can prove costly, as two comedy writers thrust into the generally unfunny world of litigation recently learned.” 

Margolick’s comment was his introduction to the account of an odd sort of suit in the Federal District Court in Manhattan against the television network NBC by comedy writers E. J. Novak and Debra Studer for copyright infringement.  

The writers contended in Novak v. National Broadcasting Co. that they’d written a series of comedy sketches in August 1985 for Video Vault on WOR-TV, an independent station (now WWOR) in Secaucus, New Jersey, and later had submitted videotapes of the performances to NBC’s late-night comedy sketch show Saturday Night Live for the purpose of seeking employment as writer-performers on the show.

Novak and Studer claimed that SNL appropriated the sketches and characters they’d created on the show without permission and without compensating them.  (For some details on the sketches, see my earlier post “What Constitutes Theft in the Arts?” [5 May 2015; http://rickontheater.blogspot.com/2015/05/what-constitutes-theft-in-arts.html].)

The case began in 1985 and after several dismissals and resubmissions of the claims, was finally adjudicated in 1990 with a summary judgment for the defendant (NBC).  Just to be sure the plaintiffs got his point, the judge added that the behavior of Novak and Studer was “not only unseemly and unfunny, but intended to harass” and sent them off with a fine of $3,500 in sanctions ($7,345 today).

From a legal standpoint, this Novak v. NBC would have been a straightforward copyright-infringement case, but what exercised the judge so much was that, while the network retained a mainstream Broadway law firm, the two writers (who were married) went, as they say in the courts, pro se—they represented themselves. 

By now I imagine we all know how the saying goes: The man who represents himself, has a fool for a client.  Well, that was certainly true for E. J. Novak and Debra Studer—at least in the eyes of Judge Robert W. Sweet.  The plaintiffs turned the courtroom into what Sweet 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.” 

Novak then sent the defense team another note greeting them simply as “Stan” and “Ollie” (for those too young to know, that’s Laurel and Hardy, respectively).  In his turn, Novak complained to the judge, “The sight of Mr. Jones [one of the defense lawyers; he was Oliver Hardy, a short, very stout actor] rolling toward us in anger is a terrifying experience reminiscent of scenes from either ‘The Honeymooners’ or ‘Mutual of Omaha’s Wild Kingdom.’”  

Margolick (who was the Times’ legal reporter at the time and had a degree from Stanford Law School) 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 comedic tactics into the courtroom.

By far the most theatrically outrageous court hearing that I’ve read about was Patrick Alley v. Mick Jagger, a 1986 suit for $7 million by a Reggae singer-songwriter who charged that the Rolling Stones’ Mick Jagger (b. 1943) had stolen Alley’s 1979 song “Just Another Night” (released in 1982) to make Jagger’s 1985 song of the same title.

The charge in this case was simple plagiarism: one artist contending that another had appropriated his work.  What made this suit noteworthy here was the trial itself.  This is the case that gave me the idea that there was performable material in the scenario. 

The presentation of the evidence offered in court was . . . I’d say it was unique.  In addition to the introduction of transcriptions of the lyrics of both songs (by dueling experts, of course), as you would expect, the New York Times reported that 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 the “Just Another Night” by Alley (b. 1951), a minor-key reggae ballad, and Jagger’s identically-titled up-tempo rock song were played in court as well.  Jagger also played homemade and studio 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. 

The decision rested on whether the songs’ choruses were substantially the same.  Both versions included the phrase “just another night with you”—five words.  The judge explained the law on copyright infringement to the six jurors and told them “The use of the phrase ‘Just another night with you’ is not enough, standing alone, to constitute infringement.”  Coincidental similarities, he also affirmed, weren’t sufficient to prove plagiarism.

After the seven-day trial, the jury found that Jagger’s “Just Another Night” didn’t infringe on Alley’s earlier song with the same title.  Alley appealed the verdict, but I couldn’t find any record of the outcome of that action.  After the verdict, however, Jagger proclaimed, “My reputation is really cleared.”

While the rest of the case was just what you’d expect in a copyright-infringement trial for a piece of music, 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—add a little dancing and it’s got hit written all over it!)  Can’t you just picture it?

Appropriation in the Theater

A quick check with the Dramatists Guild in New York confirms that the magpie culture of borrowing and re-appropriation that drives current pop music is largely alien to playwrights, even when one work is in creative conversation with another.  Unlike Hollywood screenwriters who get paid but lose copyright control to the studios, playwrights—usually poorly paid—at least retain copyright.  If a playwright were to try a freewheeling, blurry-lined adaptation of, say, Tony Kushner’s early 1990s “Angels in America” or Ntzoke Shange’s 1975 “For Colored Girls Who Have Considered Suicide/When the Rainbow Is Enuf” without first licensing the rights, odds are pretty good that would be stealing.

So wrote Washington Post theater reviewer Nelson Pressley in a comment about the repercussions from the Gaye v. Thicke and Williams copyright-infringement verdict on 10 March.  I just posted an article about plagiarism in the arts, “What Constitutes Theft in the Arts?,” which focused on pop music (see 5 May on ROT).  That seems to be where most of the copyright-infringement charges turn up and, as Pressley remarks, there aren’t many cases of alleged plagiarism in the theater.  Derivation, yes; actual theft, not so much.

I imagine that there have been instances of charges of plagiarism and copyright infringement levied against playwrights in the past, but I can’t recall reading of any in recent memory (and, trust me, I’ve been around and about for a fair number of years).  There’s a related case, but not of copyright infringement, in the film industry from 1989.  Chris Costner Sizemore, the woman on whose story the 1957 movie The Three Faces of Eve was based, sued 20th Century Fox when she learned that she’d signed over the rights to her whole life story when she agreed to the making of the film.  Fox insisted that she couldn’t sell the motion picture rights to a memoir she’d written (A Mind of My Own; Morrow, 1989) because the studio owned the rights to Sizemore’s entire life, not just the period covered by Three Faces.  Fox lost the suit, but this wasn’t about theater and it wasn’t a copyright-infringement case.

In a case a little like Sizemore’s, but this time in the stage world, David Hampton sued playwright John Guare for $100 million in 1992 with the claim that Guare’s play Six Degrees of Separation had infringed on Hampton’s copyright on his personality and his life story.  Though Hampton’s criminal activities were, in fact, the basis for Guare’s successful 1990 play (it was nominated for 1991 Drama Desk and Tony Awards and Pulitzer Prize; it won the 1990-91 OBIE Award, the 1991 New York Drama Critics’ Circle Award, and the 1993 Laurence Olivier Award), the case was dismissed.  The charge against Guare was copyright infringement (although I’m not sure anyone can copyright a personality or a life story), but this wasn’t a case of plagiarism since Hampton didn’t have anything written that Guare could have stolen.  Further, the suit was clearly frivolous, intended merely to pressure Guare and his producers and publishers to avoid the expense of a trial.  Hampton had previously been convicted of harassing Guare with threats and phone calls demanding money.  Fox had been serious in its suit against Sizemore—serious though arrogant; Hampton was just audacious.

This dearth of litigation among playwrights and stage producers (who, since they don’t own the copyrights to the scripts they produce, unlike film producers, don’t have much standing to sue anyone anyway) doesn’t mean that there isn’t a lot of borrowing, adapting, and appropriating in the theater.  It’s ubiquitous and goes back to pretty ancient times.  I doubt a season just in New York City alone doesn’t pass without at least one adapted or derived play on the boards; nationwide, I can’t imagine that there isn’t at least one in production somewhere at any given time.  Many of our greatest and most popular plays are versions of something else that came before and even if you eliminate non-theatrical sources—movies, novels, even TV shows nowadays—the list would be endless.

The traditional American musical has mostly been an adaptation of a straight play.  In fact, in its earliest incarnation, the musical theater was almost always the result of the musicalization of a straight drama or, more likely, comedy.  Rodgers and Hammerstein’s Oklahoma! (1943) was based on the play Green Grow The Lilacs by Lynn Riggs (1931); Lerner and Lowe’s My Fair Lady (1956) was adapted from George Bernard Shaw’s Pygmalion (1913); A Funny Thing Happened on the Way to the Forum (1962) by Burt Shevelove, Larry Gelbart, and Stephen Sondheim was based on several classic Roman comedies by Plautus; Purlie (1970) by Gary Geld, Ossie Davis, Peter Udell, and Philip Rose was a musicalization of Davis’s Purlie Victorious (1961); and Jerry Herman and Harvey Fierstein’s La Cage Aux Folles (1983) was based on the French play of the same title by Jean Poiret (1973).  Add in shows adapted from films (Carnival!, 1961; Woman of the Year, 1981), novels (South Pacific, 1949; Camelot, 1961), TV shows (The Addams Family, 2010; Cinderella, 2013), and even newspaper and magazine features (Pal Joey, 1940; Guys and Dolls, 1950), and the list is endless.  But none of these, regardless of quality or ultimate critical evaluation, are copies—derivative, perhaps, but all of them are original works of theater.

She Loves Me (1963) is a perfect case in point which even comes with an expanded web of connections.  The musical with book by Joe Masteroff, music by Jerry Bock, and lyrics by Sheldon Harnick is, first, adapted from the 1937 Hungarian play by Miklós László that’s known in English as Parfumerie.  (Jerry Bock and Sheldon Harnick, of course, had been previously responsible for Fiorello! (1959)—my very first Broadway play—and would ultimately create Fiddler on the Roof (1964).  Joe Masteroff would go on to write the book for Cabaret in 1966—itself an adaptation of John van Druten’s 1951 I Am a Camera, which was adapted from Christopher Isherwood’s 1945 collection, The Berlin Stories.)  Parfumerie wasn’t produced on a U.S. stage until 2009 when it was presented as The Perfume Shop by the Asolo Repertory Theatre in Sarasota, Florida, in an English adaptation by E. P. Dowdall, László’s nephew.  (A Toronto staging of an adaptation from Canadian writers Adam Pettle and Brenda Robins was also produced that year at the Soulpepper Theatre Company.)  As far as I can learn, the play’s never been presented in New York City.  (I'm not sure the script is even available in English.) 

Before the musical adaption, Parfumerie was the source for a still-popular romantic film comedy starring Jimmy Stewart and Margaret Sullavan, entitled The Shop Around the Corner (1940), directed by Ernst Lubitsch.  That movie was itself musicalized as In the Good Old Summertime (1949), directed by Robert Z. Leonard and starring Judy Garland and Van Johnson, with the setting shifted from 1930s Budapest to turn-of-the-20th-century Chicago.  That film adaptation was followed several decades later by the Tom Hanks-Meg Ryan 1998 romcom You’ve Got Mail, directed by Nora Ephron from her own script which reset the tale in contemporary New York City and turned the letters the secret lovers send each other into e-mails.  (The shop also changed in each incarnation: in Parfumerie, it’s obviously a perfume shop; in Shop Around the Corner, it’s a gift shop; in Summertime, it’s a music store; in Mail, Hanks and Ryan run rival book stores on the Upper West Side.) 

Finally, at least so far, the MGM straight motion picture, whose script was by Samson Raphaelson and Ben Hecht, was re-adapted (and translated into French!) by Jean-Jacques Zilbermann and Evelyne Fallot in 2001, when it was staged by Zilbermann as a non-musical play, La boutique au coin de la rue (“The shop at the corner of the street”), at Paris’s Théâtre Montparnasse, where it won five Molière Awards (the French equivalent to New York’s Tonys). 

On New Year’s Eve in 2006, I saw a performance of She Loves Me at the Arena Stage in Washington, D.C.  (I also saw the Broadway revival in May 1994, produced by the Roundabout Theatre Company at the Brooks Atkinson Theatre, directed by Scott Ellis and starring Boyd Gaines, but I never wrote a report on the performance.)  Directed by Kyle Donnelly, the Arena production of what executive director Stephen Richard characterized as “an endearing story of letters and love” starred Kevin Kraft as Georg Nowack and Brynn O’Malley as Amalia Balash (the characters called Alfred Kralik and Klara Novak in Shop), and was, of course, staged in the round.  She Loves Me, which Arena artistic director Molly Smith called “a nearly perfect musical,” is old-fashioned in the vein of My Fair Lady or The King and I (getting a major revival right now at New York’s Lincoln Center).  An “homage to one of the greatest romantic ideals, finding a soulmate,” as production dramaturg Michelle T. Hall put it, She Loves Me “courts all the different facets of love: boyish crushes, erotic affairs, married love, broken hearts, and the most elusive of all, true love.”  It’s charming and fun, even if the songs, which Smith described as “completely character-driven” and “expressions of the characters’ feelings and situations,” are not especially memorable (I no longer remember them, a scant nine years later). 

Alluding to the letters of poets Robert and Elizabeth Barrett Browning, the love sonnets of Shakespeare, and the fictionalized proxy love correspondence in Cyrano de Bergerac, Hall positioned the musical “in the tradition of epistolary love affairs.”  She also quoted director Donnelly in an oblique comment on the up-dated e-correspondence of You’ve Got Mail: “There is something so tangible, visceral and immediate about a letter.  It can be tucked away and pulled out to read at a moment’s notice.  You hold something that the other person touched, created, and e-mail just doesn’t compare.”  Like the play’s format and structure, the romance at its center is also old-fashioned; outside of the exchange of letters, Georg and Amalia clash like Much Ado About Nothing’s Benedick and Beatrice.

Arena’s production of She Loves Me, which included no stars or actors whom I knew, was even, solid, and much more than just competent, though no performance stood out in the ensemble.  Director Donnelly made good use of the Fichandler’s arena platform—I always feel that staging a musical in the round is particularly hard—and everyone’s voice was strong (they were miked, as usual these days) and vibrant.  I especially liked Arpad’s one solo number, “Try Me,” his self-promotion.  Clifton Guterman, the young actor playing the delivery boy-who-would-be-a-clerk, may have looked a tad older than a teenager, but his tenor was youthful and his enthusiasm in selling himself (and the song) was delightful.  But in the end, this was an ensemble production (though its past includes stars: Barbara Cook as Amalia Balash in the original Broadway run along with Jack Cassidy, who won a Tony as the self-serving Steven Kodaly; and near-stars: Boyd Gaines, who won a Tony as Georg Nowack in the 1993 Roundabout/Broadway revival, and Louis Zorich, “Mr. Olympia Dukakis,” as Mr. Maraczek); the cast as a whole did a very nice job.  (By coincidence, one of the cable channels ran both The Shop Around the Corner and then In the Good Old Summertime the week before I saw the stage musical.  That was kind of fun, though the station unhappily didn’t run You’ve Got Mail as well, and it illustrated many of the aspects of theatrical adaptation.)

Alongside musicalization, the most common form of adaptation in theater is probably translation.  Every translation of a play, usually accomplished by another playwright or other theater professional or a writer from another genre, is a form of adaptation, even when the translator’s intent is to render the original author’s text as directly as possible.  Many translations are also deliberate adaptations, from simply transferring the setting from the original one to one based in the culture of the new language or an up-dating of the play’s time period to even more extensive changes.  A case in point is Nora, a new German version of Henrik Ibsen’s Doll House by Schaubühne am Lehniner Platz, a Berlin company, which I saw at the Brooklyn Academy of Music’s Harvey Theatre in November 2004. 

Nora is the standard German title for Doll House (1879), but this was more than just a new translation by Hinrich Schmidt-Henkel—and less than a full adaptation.  The pay was reset in the 21st century, both in look and in language (some of the music in the production was by Pharrell Williams), but everything from the original was still in this version—the Helmers were still Norwegians (that is, they weren’t transported to Berlin or something); Torvald was still a banker; Nora was still a stay-at-home wife; they still had three kids; Rank (still a doctor), Krogstad, and Kristine were all still there in the same relationships as Ibsen put them in; and, most significant, Nora had still secretly forged her father’s signature on the loan agreement with which she had borrowed money to pay for her and Torvald’s trip to Italy when he was ill.  There were a few minor changes—there was no nurse in this version, and Helene, the maid, had become Monika, an au pair from Africa. 

The Schaubühne did make some more significant changes to the text/story to make it seem more current, however, and some of them seemed to have diluted the original dramatic impact.  One wasn’t very large—though the meaning was more significant than it might seem: Rank wasn’t dying of cancer; he’d gotten AIDS from having been omni-sexual in his youth.  Now this may not seem like much of an alteration, but it struck me as weakening Ibsen’s point—which is, itself, a little hard to buy today also.  Ibsen believed, as did many in his day, that moral corruption is manifested later in physical illness—and could be passed on, like a hereditary disease, to the children.  This was a pseudo-scientific belief in the late 19th century, and Ibsen used it in a more prominent way in Ghosts, of course—where Osvald’s father’s sexual profligacy is inherited by Osvald as syphilis.  What’s the difference between this and the new version?  Well, as I see it, cancer isn’t a disease we generally blame on willfully unhealthy behavior—especially in the 19th century when no one knew about the connection to smoking and other carcinogenic activities.  So, if Rank has cancer and he blames it on his corrupt youth, then it must be some kind of moral retribution since the youthful behavior didn’t directly cause the cancer.  However, if he has AIDS because he had unprotected sex with infected men and women, his illness is a direct result of his willful behavior.  (Because the adaptation was set in the 2000’s, he can’t even use the excuse that no one knew what caused AIDS when he engaged in the behavior.)  Unless you subscribe to the notion that AIDS is God’s punishment for homosexuality or promiscuity, the moral element was erased from the situation.  (As I said, this aspect of the play is hard to play today, but it only works at all if the play remains set in the 19th century when people actually believed this theory.)  This was somewhat more significant than just as an element in the Rank-Nora subplot—the same theory was applied to Krogstad, who was considered to be morally corrupt and therefore a danger to his family, especially his children.  It was this moral corruption that permitted Torvald to reject Krogstad and forced Krogstad to blackmail Nora with the letter and loan document he left for Torvald at the end of the play.  It was also this belief, which Krogstad explained to Nora, that impelled her to leave her children when her transgression had been revealed—she couldn’t stay in the house with them for fear that she’d infect them with her corruption.  Without this motivation, she didn’t have to leave, and the play’s ending became a purely selfish act and had no dramatic strength.

Now, if all that’s true, then the other, really big change in this version had even greater repercussions.  According to the New York Times review, the company wanted to restore the shock Ibsen’s original audience felt at the end of the play.  (According to theater history, there were even riots in Europe when Doll House opened and Nora leaves, it was such a unheard-of action.)  Without reading the review, you’d never guess what Schmidt-Henkel had done.  He had Nora shoot Torvald before she left.  And it wasn’t just one quick shot—she unloaded an automatic pistol into him, even as he was writhing on the ground, half in the giant fish tank that was a prominent part of the starkly modern apartment set.  Okay, this was shocking, but it changed the whole dynamic of the ending, and made Nora into a straight-out murderer rather than a distraught but enlightened woman who acted out of what she believed was selflessness.  First, for her departure to be justified, she still had to believe that by staying, she endangered her children.  That’s hard to do in the 21st century, but with the “evidence” of the physical manifestations of mortal corruption no longer as clear as it was in Ibsen’s original, it’s even harder.  Second, since Torvald’s only real fault was still that he didn’t leap to Nora’s defense when he learned of her forgery on the loan document—just like in the original, he feared for his position at the bank and that Krogstad would now be able to manipulate him.  Perhaps even more today than in Ibsen’s time, this came off as a supremely egocentric posture, and that made him a chauvinistic pig, as we used to say—but it was hardly a capital crime.  It justified leaving him—maybe enough today not to need the matter of corrupting the kids—but hardly shooting him.  So, instead of being a brave and selfless woman, Nora was a fugitive from a murder charge—and maybe even nuts.  This alone changed the entire meaning of the play.  The shock may have been restored, but it was shock for its own sake, as a theatrical effect, not based on dramatic necessity. 

I suppose that was enough to make the translation/adaptation questionable, but there were other problems I had with this show.  I know that Europe is behind the U.S. in enfranchising women, especially in the marketplace, but they’re not 50 years behind.  (After all, Germany, Norway, Denmark, Sweden, and England have all already elected female heads of government—we haven’t yet.)  It’s hard for me to accept that a woman as self-consciously modern as Nora here—the costume she wore to the Christmas party wasn’t some peasant outfit so she could dance a tarantella; she went in complete punk get-up, blood smears and all, and did a techno dance (of which the Germans were fond, I believe)—could be so bereft of options that a) she had to forge her father’s signature for a loan and b) she couldn’t resolve the problem by some more rational means than either leaving or, even more drastically, shooting Torvald.  The whole idea of the “doll-wife” (and that expression was still in the German text, by the way) was a throw-back, even in Europe today.  In fact, moving the whole thing up to the 2000s seemed to make everything a little incredible—contrived, I guess.  Instead of an indictment of a social problem that the playwright saw as universal, this version made the whole thing a play about a seriously dysfunctional couple and their dysfunctional friends.  (I ought to add, too, that the very idea today that a sick man had to go to Italy to recover—and that this was his only remedy—was hard to buy also.  Germans still believed in “taking the cure”—going to a health spa for mineral baths—at least when I was living there a half-century ago, but needing to go south for one’s health was still pretty much an anachronism—more like Death in Venice in 1912 than 21st century.  It was another aspect that really had to remain in Ibsen’s own time to work.)

There was some problem with the acting—I presume Thomas Ostermeier’s direction, really—too.  The actors were good, and I didn’t have any problem believing them in their roles/situations most of the time (outside of the problems of the script above), except that every so often they went off their rockers emotionally for no apparent reason or motivation.  One character might all of a sudden shout (or bark) at another, or another character would behave as if he were in the grips of an epileptic fit or some other odd physical condition and throw himself about the stage violently.  (The final shooting was sort of like this.  Nora had the gun—she was contemplating suicide—but she’d put it away and had even gone off into her room off stage.  Then she came out, pointed the gun at Torvald for a few seconds, and started pulling the trigger again and again.)  Now, maybe I missed something in the German text or in the translation (titles), but I don’t think so.  (I really wished my German were good enough not to have had to refer to the surtitles as much as I did—even though I knew the play fairly well, having taught it.  I did want to see what the translator did with the text.)  It didn’t help matters that the performance was two hours and ten minutes without an intermission—and the Harvey Theatre’s seats are not soft!

Anyway, it was disappointing, but not actually bad.  I pretty much concluded that updating Doll House isn’t profitable—you lose too much that isn’t made up in the modernization—but it was interesting to see the attempt.  It also made me reconsider the original—and how good Ibsen was at constructing plays to say what he wanted, such that trying to make them say something else in part destroys them.  (I saw a 1997 production of Ibsen’s Ghosts at the Arena in which Liviu Ciulei turned the dramatist’s famously realistic play into a symbolistic staging.  It simply didn’t work.)  Ironically, I also concluded that though Ibsen must remain in his own period for the plot to work, the drama—the point, the message, the theme—still communicates to a modern audience.  I mean, we may no longer believe in the nonsense of moral corruption = physical decay, but if we accept that they did, we can still see Ibsen’s point about trust and respect and honesty within a marriage.

We know that Shakespeare borrowed most of his plots from other writers.  Copyright protection didn’t exist in the 16th century, so he and the many other writers who used someone else’s ideas for their own works were on safe legal ground, and because Shakespeare’s final products (leaving aside, please, any argument that he wasn’t the true playwright) were so magnificent most of the time, no one has much cared in the centuries since.  But appropriation was nevertheless common even in the Renaissance (and long before as well: consider how may versions of Oedipus exist in Greek and Roman theater).  Shakespeare composed The Taming of the Shrew between 1590 and 1592 and there were almost immediately adaptations and derivatives on the stages of England and western Europe.  (Probably the best known stage adaptation is Cole Porter’s 1948 musical version, Kiss Me, Kate, which I’ll mention shortly.  The most radical was probably 1973’s The Shew by Charles Marowitz whose Hamlet collage, a 1964 deconstruction, became an international theater phenomenon; his Shrew was composed in much the same way.)

Probably the oldest Shrew variation is The Woman’s Prize, or The Tamer Tamed, a sequel written by John Fletcher (1579-1625) in about 1611.  (The script was first published in 1647, 22 years after Fletcher’s death.)  Characterized by Matt Wolf, a London theater reviewer for Variety, as a play “that virtually no one knows,” The Tamer Tamed (as it’s commonly called) was popular in the 17th and 18th centuries after the Restoration, often more so than its source, but dropped off the stage for about 200 years until 2003 when the Royal Shakespeare Company revived it; I saw it when the RSC came to Washington’s Kennedy Center later that same year with a repertoire that comprised both the Fletcher and its Shakespearean basis.  (I didn’t see the RSC production of Shrew, but I have seen it many times, including one at Shenandoah Shakespeare in Staunton, Virginia, in May 2003, staged in the troupe’s reconstruction of Shakespeare’s Blackfriars theater—see “Blackfriars Playhouse in Virginia,” 18 November 2009 on ROT and “Shenandoah Shakespeare,” 21 November 2009—and then again at Washington’s Shakespeare Theatre Company’s Lansburgh Theatre in November 2007.)

I have trouble with Shrew to start with.  Okay, I know we’re not supposed to judge a work from the past by current standards, but I’ve never really been able to get around Petruchio’s treatment of Kate in order to “tame” her.  (The STC production piled on because director Rebecca Bayla Taichman posited the idea that Shrew is all about marriage as commerce.  Baptista auctioned off his daughters.)  I’m not sure this analogy will go over real well, but I’ll float it anyway: I once had a dog who got uncontrollably violent when he met another dog.  I spoke to a trainer and her analysis was that I had two choices.  She could break him entirely of his hostility, but he’d be spiritually crushed.  Or she could make him manageable; he wouldn’t be out of control but he could never be let alone with another dog off his leash.  We decided that the second option would be best for the dog (and for me)—but Petruchio seems to have gone for option one.  And for far less cause.  (Now, I’m not really comparing a woman to a dog—please don’t start that—though Petruchio does use animal-training techniques to tame Kate.)  I also understand that Shrew is a comedy—but if you play it entirely for laughs, then you make fun of what amounts to domestic violence.  If you make Kate so shrewish that she seems to need taming, in order to try to justify Petruchio’s behavior, then she ends up not just a strong-willed and independent woman but a truly insane one.  If you play her as a sort of protofeminist (which I maintain is what Shakespeare wrote, though she, of course, is way out of her time in the Renaissance), then Petruchio’s actions are all unwarranted (and even, by our standards, criminal).  Those aren’t really funny situations.  So, maybe I’m just a stick-in-the-mud, but I’ve never been able to reconcile this dilemma.  I don’t have the same problem with the racism of Othello or the anti-Semitism of Merchant, but the sexism of Shrew defeats me. 

As for Tamer Tamed, think Lysistrata meets Shrew—20 years on.  Katherine has died—RSC director Gregory Doran suggested that she’d died “from exhaustion”—and Petruchio has fallen in love again.  His new bride, Maria, refuses to consummate their marriage unless Petruchio changes his ways.  That’s enough to relate . . . because it’s awful.  (I’ve never seen a Jacobean play that was remotely enjoyable: The Duchess of Malfi, ’Tis Pity She’s a Whore, Venice Preserv’d—they’re all grim.  Yech!)  There’s a word often used to describe bad theater, and it’s very apt for Tamer: leaden.  It just lay there lifeless.  The RSC tried so hard to animate it—the reviews all focused on the performances—that they ended up just looking manic, as if they were trying desperately to bring a dead body back to life.  There’s not a single line of poetry or even memorable prose; not one attractive, or even sympathetic, character; and a one-joke plot (all the women are denying all the men sex) that reduces everyone to a cipher.  I couldn’t even keep most of the characters straight—but that was mostly because I didn’t really care.  Not only wasn’t it funny, it wasn’t even clever.  I repeat a caveat I’ve used numerous times: often an unknown or neglected play is unknown and neglected because it’s bad!!!  This adaptation didn’t improve on the original; why RSC decided to dredge it up is a mystery to me. 

In 1999, a Broadway production of Porter’s Kiss Me, Kate (with book by Samuel and Bella Spewack) opened at Broadway’s Martin Beck Theatre (now the Al Hirschfeld), directed by  Michael Blakemore and starring Marin Mazzie as Lilli Vanessi/Kate and Brian Stokes Mitchell as Fred Graham/Petruchio.  The revival, the first since the 1948 début, went on tour after it closed in New York and I saw it with Rachel York and Rex Smith at the Kennedy Center in Washington in July 2001.  Kate is a backstage story about a touring troupe putting on a production of Shakespeare’s Shrew; it’s supposed to have been based on the off-stage lives of the husband-and-wife acting duo Alfred Lunt and Lynn Fontanne, who were said to have had a tempestuous relationship when they weren’t on stage.  

Unfortunately, I never wrote up any notes on this show and the only comment I remember making was that Rex Smith was just not a powerful stage persona, leaving a rather large hole in the center of the production where he’s called upon to portray two notoriously chauvinistic males: Petruchio from Shrew and Fred Graham, the director and lead actor of the touring company.  (To soften Fred’s benighted sexism, director Blakemore and uncredited play doctor John Guare made Harrison Howell, Lilli’s new beau since she and Fred separated, into a true MCP of an army general, with a nod to Douglas MacArthur—sunglasses and all—instead of the mere stuffed-shirt politico of the original script.) 

Unlike the Petruchio of Shrew, however, Fred’s far less a problem for me since, first of all, Kate is a musical comedy of the old school and no one is seriously endangered—the comic mobsters notwithstanding—and second, he’s hardly as hard-core as Petruchio and all he’s really up to is winning Lilli back—in his (ahem) fashion.  (Kate is, after all, not just a musical comedy, it’s a romantic comedy.  People don’t get hurt in a romcom!)  Of course, irrespective of production styles and individual performances, Kate is still the very first winner of the Tony for Best Musical and contains Porter’s most beloved stage score, with such perennial faves as “Another Op’nin’, Another Show,” “So In Love,” “Brush Up Your Shakespeare,” and “Wunderbar.”  (There are even several wonderful tunes from Shakespeare’s text, like “Where Is the Life That Late I Led” and “I Am Ashamed That Women Are So Simple.”) 

One of the most peculiar theatrical derivatives I’ve seen in my theatergoing life was Richard Schechner’s The Prometheus Project in December 1985.  Of course, anything Schechner, one of the founders of the 1960s avant-garde theater scene in New York and around the country, does is decidedly . . . well, unconventional.  Prometheus was a work performed in four movements plus a coda, conceived and directed by Schechner and presented by the Wooster Group Visiting Artist Series at the Performing Garage (previously the workspace of Schechner’s Performance Group, Wooster Group’s predecessor). 

Schechner, whose work hadn’t been seen in New York for five years, returned with his version of the Greek classic tragedy Prometheus Bound, attributed to Aeschylus (c. 525/524-c. 456/455 BCE).  The Prometheus Project expounded Schechner’s belief that nuclear firepower is Prometheus’ gift gone awry, and that nuclear destruction is the epitome of man’s violence, which also includes torture and sexual abuse.  The performance attempted to tie all this together and make us recognize our victims. 

To create visions of destruction and brutality, Schechner (who was one of my professors at NYU) and his performers combined movement, gesture, light, speech, and music.  These images were woven into the stories of Prometheus, chained to a mountain for stealing fire, and Io, turned into a cow and forced to wander the earth for rejecting Zeus.  The movement and gesture images were more affecting than the language images, which were unexciting and unconvincing.

Most striking was “Tomoko,” the opening movement, starting with slides from Renzo Kinoshita’s Pica Don depicting Hiroshima before, during, and after the bombing.  When the lights came up, the actors performed every-day tasks in slow motion while cellist Mollie Glazer played Bach’s Kol Nidre.  This segued into Becke Wilenski singing Bach’s oratorio, “Hear Ye, Israel.  O, how hast thou heeded my commandments.”  The scene was compelling, and drew attention to each action, each gesture.      

The succeeding segments were less focused and depended heavily on language and speech.  “Annie” gave us a very excisable porn show by veteran sex educator, former prostitute, stripper, and porno actor Annie Sprinkle, whom we were supposed to see as a victim.  It was during this scene that Schechner’s manipulative inclinations showed themselves.  Two actors dressed in trench coats, slouch hats, and dark glasses—the kind that stereotypical viewers of porn movies or strip shows are supposed to wear—took positions facing the audience, seated on bleacher-like risers at one end of the performance space.  The idea seemed to be that these “men” were there to witness our attendance at a porn show.  But, of course, we didn’t know the scene would take place and there was no way any of us could actually have left if we’d wanted to without disturbing all the rest of the audience and walking across the performance area.  So Schechner was trying to have it both ways—make us captive and unwitting spectators at a sex show and at the same time essentially point at us accusingly for being there.  The conceit actually pissed me off—it seemed dishonest.

In “Io,” while female performers ran back and forth imitating Io’s flight, two women told apparently true stories of abuse by men.  The last movement was “Prometheus” in which a nude Mahmood Karimi-Hakak was ritualistically bound and then recounted the story of his own torture.  Following a moment borrowed from Endgame during which Prometheus was released, the coda presented the entire company looking at us as two readers described a post-holocaustal world.      

Somehow, none of this came together.  Whenever the language began, the performance dragged and paled.  Schechner’s not partial to words, and his mostly novice performers were incapable of making them sound genuine.  After the stirring first movement, The Prometheus Project slackened disappointingly.  (I don’t know if Schechner took this show on a tour—it began in a workshop of college students, who made up most of the cast, and the director-creator may have presented it to other student audiences around the country—but I’m unaware of any revivals of The Prometheus Project in New York City since 1985.)

[Many of my remarks above were taken from past performance reports that predate ROT and even some of the e-mail reports that inspired the blog.  My comments on the Arena Stage revival of She Loves Me were drawn from a report I wrote on 17 January 2007 covering a visit to Washington over the year-end holidays that year, and the section on Nora was based on a 15 November 2004 report.  My brief remarks on The Taming of the Shrew at STC were taken from my 29 November 2007 report, and the comments on The Tamer Tamed were from a report written on 13 January 2004.  (You remember that I had no archived remarks on the Kennedy Center revival of Kiss Me, Kate.)  The discussion of Schechner’s Prometheus Project was actually a short review I wrote for Stages after seeing the performance but which was never published; Stages reduced my remarks to a brief mention in a general survey article in the March 1986 issue.]

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.”