15 The legal constraints on performers

 

This chapter is not intended as a guide to your legal rights! It’s about how IP law keeps performers in their place, as servants to the composer.

It’s taken for granted that composers have legal rights that allow them to own their compositions and to be paid when they’re performed. We see throughout this book that performers are doing much of the creative work that makes the music experienced by the listener. Why is that not recognised in copyright law? Why does the law suppose that the composer is the only creator, and the performer merely a reproducer?

A simple answer, probably close to the complete truth, is that the men who wrote the law grew up and lived within standard WCM ideology, believing that only composers are creative.

The problem surfaces again and again in popular music. We all know that much of the creative work on a popular music track is done in the studio, by members of the band working together, and then by the producer in the editing suite. It’s not a simple case of a composer ‘writing’ the piece and everyone else helping to perform it. But that is what the law demands; and many cases come to court as a result, with musicians other than the nominal composer claiming, quite rightly, that they made an important contribution that should be rewarded by a share of the royalties. They succeed only very rarely, when the court is willing to be persuaded that they were in effect a co-composer. The way creativity actually happens is not recognised in law. In law, performers cannot be creatives. What could be more oppressive of performers’ creativity? Why bother to contribute under these conditions?

 

How performers are seen in IP law

The best way to understand the disadvantaging of performers by IP law is to read Mathilde Pavis’s 2016 thesis, The Author-Performer Divide in Intellectual Property Law.[1] Most of the rest of this chapter is drawn from her work.

Pavis identifies three key assumptions underlying the privileging of composers. The first is that they create from nothing: this is essentially the composer-genius tending towards the composer-god idea that we’ve seen doing so much damage in previous chapters. The second is that their work is intellectual whereas performers’ work is bodily, and that only intellectual work deserves reward. It’s easy to see why this idea might appeal to lawyers, but it misrepresents the nature of music-making by both composers and performers. The third is that, nonetheless, performers’ work is impersonal: performers do no more than ‘lend their body’ (Pavis 2016, ii/52) to the sounding of the composer’s work. This is, of course, exactly what WCM ideology maintains, while also insisting that performers bring something individual to their reading of the composer’s text. We’ve seen already that that individuality is narrowly policed; and here, in IP law, we’re reminded that it is too small to be recognised as creative.

IP law turns the notion of a Work into a marketable commodity; but having done that it has no choice but to insist on the existence, identity and integrity of a Work. All of these Work claims, as we’ve seen, are undermined by recognising the role and nature (especially the changing nature) of performance. Thus everything about IP law, from its underlying concepts, though its construction and expression, to its enforcement and effects, oppresses performers. It prevents them being recognised and rewarded for their contribution to the making of music in real time, and it discourages them, therefore, from any significant personal investment in their work beyond what they can do to express their own identity in music without being criticised; which, as we’ve seen, is very little.

Pavis offers a number of powerful counterarguments to the law’s assumptions and diktats. She points out that works can be protected before they have been notated, while still in the composer’s imagination, and therefore it’s not reasonable to claim that performances are too intangible to be copyrighted (Pavis 2016, i/56). Copyright reifies the intangible and can therefore reify performance if it wishes (i/62). While a recording is protected by copyright, the performance it embodies is not: other performers can copy yours and there is nothing you can do about it (i/92); a situation that copyright exists to prevent, one might have thought. But, as Pavis points out,

any step taken by policy-makers to improve performers’ protections is simultaneously hindered by the necessity to maintain the authority of authors’ rights over the realm of intellectual property laws. (Pavis 2016, i/110)

Yet,

copyright laws were purposefully designed to foster the dissemination of creative works. How can such agenda be achieved if the key players in the dissemination of dramatic, musical and choreographic works are left out of the equation? (i/171)

Of course, the idea that composers create ex nihilo, from nothing, making work that is wholly original to them, is laughable; and yet it is essential to the working of IP law (i/221). As Pavis puts it,

This conception of the author as the solitary intellectual genius is outdated, inaccurate and has been disproved by a long-standing body of empirical research in creativity. Yet, the legal narrative framing contemporary copyright still embraces it. (ii/13–14)

Faced with evidence that performers have made contributions to a work, the courts (in both the UK and USA) have argued that composers foresee any interpretative variations, and therefore any that occur belong to them, not to the performer who makes them (ii/95–6).

Why such desperation, sustaining an unfair legal system based on absurd claims? First because the men (usually) who judge these cases, like the men who framed the legislation, are the sort of people who are brought up in this culture, people who go to the opera, whose children and grandchildren take music lessons, who know enough, just enough, to know that composers are the foundation and raison d’etre of WCM, but not enough to know that composition is a mix of intertextuality and imagined performance along with variable amounts of creativity, nor how much performance brings to the identity associated with a score that makes it seem to be a work. Second because it makes the distribution of money so much simpler if only one person has to be paid, and that suits the employer, with whose requirements lawmakers find it much easier to identify than with those of musicians.

 

How performers’ options are limited by moral rights

But the situation for performers is worse than this. For the law also discourages them from being creative in performing scores as long as they are covered by what are (ironically, one might think) called moral rights,

which were introduced to curb performative practices taking what was considered as too much liberty with the works artists interpreted on stage.  (Pavis 2016, i/118–9)

Thus according to the UK’s Copyright, Designs and Patents Act 1988, section 80

The author of a copyright… work … has the right … not to have his [sic] work subjected to derogatory treatment. … “[T]reatment” of a work means any addition to, deletion from or alteration to or adaptation of the work, other than … an arrangement or transcription of a musical work involving no more than a change of key or register… [T]he treatment of a work is derogatory if it amounts to distortion of mutilation of the work or is otherwise prejudicial to the honour of reputation of the author…

In principle this allows a composer, or their estate for as long as their scores remain in copyright, to object to any performance that they can persuade a court damages the honour (?!) or reputation of the composer. In a famous case the estate of Samuel Beckett sought (in some countries succeeding) to prevent the performance of Waiting for Godot by women actors (and in the USA black actors) on the grounds that it contravened Beckett’s expressed wish.[2] A musical case might not be too hard to construct, given the highly detailed instructions contemporary composers often put in their scores, and it would be fascinating to see it argued in court. In practice, if one follows the ethical principles proposed here in Chapter 11.3 of courtesy to the composer and their immediate family, a case might never arise. Nonetheless, one can see how careful the law forces performers to be for as long as scores remain in copyright. Any act of non-normativity could be construed as derogatory: to judge by the language of record reviews (Chapter 9.2) you might think that a great many performances already are. Do we really wish, even when doing our best to reproduce the wishes of living or relatively recently-dead composers, to be constrained from any difference from past practice save transposition?

In French, Italian and Spanish law (and that of many non-EU countries), moral rights remain with the author or their descendants for ever, even if they transfer all the economic rights in their work to others. So even if, for example, the estate of Francis Poulenc (d. 1963) were to sell me the rights to one of his scores, so that I received all the economic benefits of authorship, they could still pursue me for damages if they didn’t like my performance; and they and their descendants could do that for all eternity. Mathilde Pavis comments,

Once the author is dead, the estate would have to prove that the way you perform the music would have been objected to by the composer. This can be done by producing writing (any writing) of the composer not liking certain styles or types of performance of their work(s), or witnesses (e.g. former student or performers having worked under their direction) confirming that this or that style of interpretation for this or that work would have contravened their perception of the work’s integrity.[3]

As time passes, of course, there are unlikely to be any listeners alive who don’t feel that contemporary performances are appropriate, provided that they’re consistent with current general performance style. (Recall the discussion in Chapter 4 of the Barber Adagio, whose character has radically changed while still in copyright without anyone minding; though note that in this case it’s been hugely to the advantage of Barber’s estate.) We’ve seen already that, because of the way performance style, practices, values and tastes change so much over longer spans of time, performances that one generation thinks perfect come eventually to be seen as distortions or mutilations by another. Thus performances may always be violating moral rights for all except contemporary scores. All that saves performers from the courts is that, because general style has changed, nobody seems to mind. As long as you don’t do anything that’s currently unusual.

The law, then, puts you the performer in exactly the same place that all other gatekeepers put you. That’s to say, in your place.

Sensible IP law (we’re back in Utopia, now) would prefer freedom of expression and accept performers’ right to perform a score as they wish, seeing their performance as just as creative and original as the composer’s own, and understanding musical production in WCM as a process in which many people (listeners included) contribute at different times and with varying ideals. But, as we see, the sensible approach is not always available within the law. So although the grounds for complaint differ from one country to another—and although in most cases it would be difficult for complainants to show that (e.g. in France, as asserted by a composer or their heirs) a ‘work’s’ integrity had been compromised or (in the UK, in the view of a ‘reasonable person’[4]) a composer’s honour and reputation damaged—performers, who already live with a sense of artistic inferiority and with a fear of professional censure, may be still less comfortable about being seriously counter-normative when performing a score before copyright has expired and/or the first few owners of the deceased composer’s rights are themselves safely dead.[5] The law may pose only modest risk in practice, then,[6] but its mere suggestion, under the circumstances, may be enough to deter innovation, at any rate for a generation or two.

 

Continue to Part 3, Chapter 18 ‘Allowing Creativity’ (Chapters 16–17 will be inserted in due course)

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NOTES

[1] Pavis, Mathilde. 2016. The Author-Performer Divide in Intellectual Property Law: A Comparative Analysis of the American, Australian, British and French Legal Frameworks. PhD thesis, University of Exeter.

[2] Further reading can usefully start with Pavis, Mathilde. 2018. ICH and Safeguarding: Uncovering the Cultural Heritage Discourse of Copyright. In Charlotte Waelde, Catherine Cummings, Mathilde Pavis and Helen Enright (eds.), Research Handbook on Contemporary Intangible Cultural Heritage (Cheltenham: Elgar), 296–340. Note that courts in Italy and the Netherlands, however, both rejected the Beckett estate’s claim.

[3] Personal correspondence, 4 May 2020, for which many thanks to her.

[4] We would be wise to assume that in the courts a reasonable person would be considered to be one who was familiar with the normal practices and values of WCM, not a potentially more open-minded layperson.

[5] Details of the duration and nature of moral rights are summarised usefully in Bird & Bird. 2020. Moral rights in Europe: a comparative study. Practical Law UK Articles 2-385-0803. https://uk.practicallaw.thomsonreuters.com/2-385-0803 .

[6] Mathilde Pavis writes that, ‘One of the few examples [to come to court was] Confetti Records v Warner Music (2003). … In the case, the composer complained about the fact that the (rap) lyrics superimposed on his work referenced violence and drugs. The court rejected the claim on the basis that the lyrics were incomprehensible upon listening, even at slow speed.’ https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Ch/2003/1274.html: the pertinent arguments begin at para 145.

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