EP&M Online Editorial

Other People's Words
The Price of Freedom of Speech
essay by
Arthur Mortensen

                                  "What words float up wihin another's thoughts
                                    Surface as soon in mine, unfolding there
                                    Like paper flowers in a water-glass...."
                                                             Richard Wilbur, "The Mind Reader," 1976

"Those were the days," an old friend said, as we laughed about Vivaldi and Bach stealing from one another, which they did, sometimes relentlessly, as when Vivaldi took an entire concerto from Bach, transposed into another key, and signed it as his own.   Of course, nobody was fooled.  Everyone knew.  And no one cared.  A whole piece was admittedly an exception.   More often than not it went little further than a lengthy quote, though even those could be huge, as an entire movement re-scored by Beethoven for Symphony No. 8, The Pastoral, which he borrowed from Haydn's remarkable oratorio The Seasons.   You can find the same thing throughout the history of jazz.  The "standards" from Swing through Be-Bop and beyond were other people's songs, though with a significant difference, noted below.  Cross references, allusions, and quotes populate poetry across the centuries as well.   All of this is part of what Frederick Turner describes as the marvelous feedback mechanisms that enliven and enrich the arts, especially the classical arts.   Such approaches to composition layer work, giving it a past, present and suggesting a future by artful borrowing, alteration and variation.   For a long, long time, through most of the history of art, few artists complained.   Today, it would be called intellectual property theft.  If you borrow without attribution today, it’s often a crime, depending on the degree of borrowing you do.  In the last twenty years, intellectual property law has become formidable.  When Vivaldi transposed that entire piece of Bach’s, it was good he wasn’t alive in the 20th century, because he would have been charged with a felony and Bach would have sued for damages.  Why?

Part of the answer is easy, and is revealed by the transformed relationship between art, the income derived from it, and the investment of work and money to get it from the artist to the public.  And this first became a significant problem with the rise of the popular song in the United States.  Ever wonder why be-bop players only took the first four measures of a song for a theme?  Because, if they took more, it would have been intellectual property theft.   The reason for this is as uncomplicated as why you can’t take a gallon of gas from your local station.  Gasoline isn’t put out there as a favor, with the costs put up by a rich merchant or a prince; it’s a product that has to be sold to make back costs for the station owner, the delivery tanker driver, the refiner, the shipper, and the driller. 

The popular song, indeed, all popular literature, was a product.  There was no princely patron picking up the tab for Irving Berlin.  So, if somebody other than the composer and  lyricist started making money off a commercial song, it was time to call a lawyer.   The same notion of intellectual products applies to all of the arts where there’s something you can take home with you, whether it’s a book, a painting, a print, a recording, a movie.  If you take it home, you pay the going price, and you can’t make a copy of a piece still covered by copyright law, not a complete one obviously, and not even partial one, and call it your own.  Why did this happen?

Bach, Vivaldi, Shakespeare, Michelangelo, almost any artist you can name until the late 19th century, was patronized.  Their work was written at the behest, and at the expense, of someone else.   Patrons who were especially involved with the art whose production they paid for, such as the Medicis for virtually the entire Florentine Renaissance,  the various royal persons who supported Elizabethan drama and poetry, or those kings and princes in Vienna such as Baran von Swieten in the production of high classical music, often worked directly in the conceptualization of the art, and were actively involved in high level discussion of contemporary art theory.  Von Swieten even wrote the libretto for Haydn's Seasons, as well as selecting some of the incidental music and partly organizing and proofing the final manuscript.   If you've read the histories, you know that patrons were not especially easygoing bosses; that's one of the reasons for the prodigious production levels of many of their artists.  Bach, for instance, was expected to write a new cantata every Sunday for nearly twenty years.  The results were astonishing;  they continue to inform cultures across the world centuries later, whether in support or in reaction.  But, since the late 19th century the system of such profoundly personal patronage for new art, with some exceptions, has largely vanished.   The writer can think of no contemporary single man or woman of wealth who would directly patronize a composer, novelists, filmmaker, playwright, poet, painter or sculptor.  From the rise of both democracy and industrial capitalism onward, the artist, increasingly, was expected to be an artist-manager, a business owner whose work included not only the art but its commercial development.  Perhaps the most exemplary early model of this was Gustav Mahler, though perhaps the earliest was the actor Garrick who was both the leading actor in Britain and its most successful theater manager.  What happens when the artist becomes patron and seller as well?

A patronized artist is not producing his or her own property.  Bach's work, as that of any other patronized artist, belonged to either the patron or to the state.  And in the great era of patronized artists, the state evidenced very little concern about the kind of casual borrowing that its artists practiced.   But, an artist-manager is producing stuff that belongs to him or her and which, as a matter of necessity, as a factory owner, he or she must sell in order to pay off capital investment, partners, employees, and to gain a profit sufficient, if not to make a living, then at least to continue practicing his or her art.   Not surprisingly, and pretty swiftly, a great concern of artist-managers was the protection of legal rights to their property.  If it were not protected by law, with suitable retribution for criminal violations, how could an artist be secure in the knowledge that such work might pay his or her way to the next endeavor?  

This is hard to digest for some, including, on occasion, the author.  The borrowing between playwrights, composers, painters, sculptors, novelists and poets (and even moviemakers) over the centuries has contributed not only to the rich feedback system that informs so much high art but to the inventiveness of artists who, in borrowing material, had to make some significant alterations and variations to call it their own.  But,  consider, if you don’t have a patron, and very few of us do, what other system is available but that of intellectual property rights in which a given work of art is treated very little differently from a patented design for a new cell phone? 

And the system, while there have been many cheats who have left artists bankrupt despite the law, has worked fairly well.  A century of popular lyrics enriched, at least for a time, thousands of songwriters.   There are some painters, not many considering the utterly vast number of MFA candidates each year, who can seriously endeavor to make a living as independent painters.  There are a few poets, not many, again because of the stupendous number of  graduating poets produced by American universities each year, who make a living at it, and many, many more who do so by working in a university.  Filmmakers and novelists make sometimes sensational livings from their work.   There are also vast numbers, by far the greatest proportion, who don't.   One can despair about this, but it's a bit pointless.  Two hundred years ago, a lyricist who showed up expecting to be paid for a new work based solely on its merits would have to gain the permission of a royal house or a rich merchant before proceeding.  Needless to say, those who succeeded knew this very well.  And not a few, such as the French composer Lully, relentlessly exploited their relationship with a royal court to exclude other artists altogether.  Is it a price of freedom that so many should fail?

It is hard to say anything but yes to this question.  What does one really say, ultimately, about a system where visibility or anonymity in the arts is largely dependent on the artist as manager of his or her own talent, business dealings, and personal risk of his or her own capital (or what he or she can borrow) in pursuit of excellence?  

After all, it's not like the 19th century, nearly romantic assumption about the artist as solitary warrior, a sort of Dale Carnegie with a pen or a paintbrush, willing the people to buy the work.   I doubt very much that any poet has gone to a bank to ask for a capital financing of a book.   There are numerous institutional and private sources of  capital for artists of all descriptions, from private grantmakers to the NEA.   And there are also a lot of publishers still who are crazy enough to put their money on books that they can guess from a casual reading of Editor & Publisher will sell less than a thousand copies.   What else can one reasonably expect as an artist in a democracy?

And how else can an artist of any description, whether an Expansive poet or a post-Modern composer, expect to be fairly judged today?  Like it or not, if there's no market for an artist's work,  there is less reason to produce it today than there was for a composer in 18th century Vienna who couldn't convince a patron to support his or her work.   In a free society, an artist can go to tens of thousands if not hundreds of thousands of potential sources of investment and future audiences. As such, can any artist reasonably expect, for instance, a subsidy, if books or music produced do nothing but rot on a shelf? Such subsidy is the stuff of patronage, a sport, however magnificent the results, for both kings and tyrants, neither of which has much favor today.   We don't argue with that in any other part of modern life.  Why do we still pine for patronage in the arts?

                                                            Arthur Mortensen

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