Copyright v. Culture: Music Think Tank Followup

After posting Copyright v. Culture last month, Bruce Warila contacted me about re-publishing the article on his site, Music Think Tank.  I agreed to do so, and was pleasantly surprised to see 10 comments within a week.  That, and having made some more progress on The Glenn Gould Reader (edited by Tim Page), compelled me to write a followup to the article, which I reproduce here:

To the question “doesn’t culture primarily advance through people creating new works, as opposed to recycling old ones?” I would say the answer is beyond my ability to answer in a perfectly factual manner.  Since we’re talking about Gould, perhaps his perspective on the matter could be enlightening.  The article in question (from The Glenn Gould Reader, edited by Tim Page) is “Strauss and the Electronic Future”, and he writes:

We tend to visualize a greatly exaggerated concept of historical transformation, and, for reasons that seem expedient in helping us make history approachable and teachable (in order to make history captive is perhaps closer to the point), we tend to prefer antithetical descriptions of historical point and denial, and to those we assign descriptions, term that are consequently infected with all sorts of extraneous notions about progress and retrogression.

By way of example, he asks the reader to imagine an improvisation of a piano sonata in the style of Haydn so artfully done that one could pass it off, and have it accepted as a previously unknown work of Haydn.  Gould then asserts that it would be accorded value commensurate with Haydn’s reputation.  But he then suggests that if one were to change this false attribution, and say it is in fact a work by Mendelssohn, “the reaction to this bit of news would run something along the lines of ‘Well, a pleasant trifle, obviously old-fashioned but certainly shows a good command of an earlier style’—in other words, bottom-drawer Mendelssohn.”  He then continues the thought experiment by considering what would happen if the work were attributed not to a later composer, but an earlier one, like Vivaldi.  Gould says “with that condition in mind, this would be greeted as one of the true revelations of musical history—a work that would be accepted as proof of the farsightedness of this great master, who managed in this one incredible leap to bridge the years that separate the Italian baroque from the Austrian rococo, and our poor peice would be deemed worthy of the most august programs.”  He continues:

In other words, the determination of most of our aesthetic criteria, depsite all our proud claims about the integrity of artistic judgment, derives from nothing remotely like an “art-for-arts-sake” approach.  What they really derive from is what we could only call an “art-for-what-its-society-was-once-like” sake.

When you begin to examine terms like “originality” with reference to those constructive situations to which they do in fact analytically apply, the nature of the description that they provide thends to reduce the imitation-invention ratio in a work of art quite properly to a simple matter of statistic.  Within this statistic no work of art is ever genuinely “original”—if it were, it would be unrecognizable.  All art is really variation upon some other art, and the more we divorce the application of terms like “originality” from those analytical observations to which they can profitably apply, the more uncertain is the ground upon which we erect our evaluations of art.

Gould is obviously talking about cultural valuation, not financial valuation, and he’s talking about music originality instead of a specific property right, but I agree with him that to the extent that the question asked above (“doesn’t culture primarily advance through people creating new works, as opposed to recycling old ones?”) reduces to an either-or evaluation of creativity vs. recycling, the question is not based in reality.  And to the extent that it does not, the question becomes merely aesthetic.  I may write as pompously as Gould, but I’m not going to be the arbitrary judge of what makes music worthy or garbage for anybody but my own aesthetic self.

Another reader comments “One last thought: look at the EXPLOSION in the arts, since copyright law was established. It might not be perfect, but it’s far from out and out wrong. What’s needed is not less technology, but more.”  I agree with the conclusion, but not the assumption.  Namely, I agree that more technology creates more art, as can be seen by the contrast of the cave dwellers of Lascaux (who did not have agricultural technologies) to the city-states of Egypt (who did).  Gould takes this a step further (in the same article, “Strauss and the Electronic Future”) by saying

implicit in electronic culture is an acceptance of the idea of multilevel participation in the creative process

which I completely agree with.  Thus, more technology does create more opportunity for art.  However, I think it is an error in logic to attribute this to copyright, for two reasons.  First, because the term copyright is overbroad.  If we were talking about copyright at the time of Thomas Jefferson, which was 14 years, then I’d have no complaints.  The second because not just in term (from 14 years to what has become, for all practical purposes due to constant legal goalpost moving, perpetuity), but because copyright has become so broad, and in some cases, so retroactive, that whatever creativity one might attribute to its existance is disingenuous.  By way of example, consider the Eiffel Tower.  As blogged by Michael Mikelthwaite

The Eiffel Tower’s likeness had long since been part of the public domain, when in 2003, it was abruptly repossessed by the city of Paris. That’s the year that the SNTE, the company charged with maintaining the tower, adorned it with a distinctive lighting display, copyrighted the design, and in one feel swoop, reclaimed the nighttime image and likeness of the most popular monument on earth. In short: they changed the actual likeness of the tower, and then copyrighted that.

As a result, it’s no longer legal to publish current photographs of the Eiffel Tower at night without permission…

Is it really proper to credit the beauty of the Eiffel Tower to copyright, even though copyright now applies?  I don’t think so.

Finally, as to the question of how much control the artist should have over the disposition of their works, it’s an age old question.  Once upon a time, the Church argued that none but the highest priests should have access to the Word of God, lest the uninitiated, or worst, the heretics, make a mess of it.  Gutenburg changed that.   But for all the freedoms we have gained when it comes to words and the press, we seem to have fewer and fewer when it comes to music, and I lament that loss.

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