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.”
Wow! Some truly amazing court cases in this most interesting post. Tread carefully on the stage, your every word might land you in the soup.
ReplyDeleteThank you, PhilipH. I hope you enjoy more articles on ROT.
Delete~Rick
Following some of the Ed Sheeran plagiarism trial this month, I was struck by the report that in his testimony one day, Sheeran took a guitar and sang some of his song that was at the center of the case.
ReplyDeleteWhy it struck me is that back on 5 May 2015, I posted "What Constitutes Theft in the Arts?" (above), in which I included an account of 'Patrick Alley v. Mick Jagger' in which I reported that:
"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."
Sound a little familiar?
~Rick