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If They Don't Sue You, Is it Still Stealing?
Sergei Rachmaninoff weighs in on the subject of illegal downloading, with a brief history of the art of helping yourself, musically speaking


What? You thought stealing music was new?

Oh, sorry. I meant downloading. I mean, those huge, multinational, faceless, bloodsucking corporations don't need all that money, right? What's wrong with helping myself to a little of their overpriced fare on the internet? Shouldn't art be free anyway?

Well, actually, giant fatcat corporations also employ lots of "little people," whose livelihood depends on the corporate bottom line too. So maybe its not as simple as, say, Robin Hood downloading from the rich. (All you Robin Hoods out there know who you are!)  And, don't forget, besides those spoiled talentless megastars (hey, hey! cheap shot!) there is also the composer to think about.

the who?

Oh, right. The guy who wrote the music to begin with. We'll get to the rather strange testimony of one Sergei Rachmaninoff, a great composer for the piano who lived and died before the internet took the whole issue of copyright protection to a new level. Despite being dead now for over 60 years, Mr. Rachmaninoff is actually in a unique position to present his views on the subject, which are probably not what you'd think.

But first, a thumbnail sketch of the history of pushing your advantage however you can, which is just so human, after all.

There are two great problems a composer must face. One is failure. The other is success.

The one seems obvious. It brings with it starvation or a career change. But the other, that of being a commercial success, means the vultures are circling.

Circling because they are determined to make money off the venture, second, third, or fourth-hand, if necessary. There are several ways this could be accomplished. One is to simply steal the composition in question and pass it off as your own. This is the least likely scenario because it involves actual theft of material, which has nearly always been considered a crime whether there is a copyright in force of not. But that hasn't stopped it from happening.

The closest we are likely to get to the truth regarding that strange episode at the end of Mozart's life when he was told to write a mass for the dead and then died himself before the work was finished, is that a certain Count Walsegg asked Mozart to write the piece with the intention of passing off the work as his own after Mozart delivered the finished manuscript. The count had a funny habit of doing this sort of thing frequently, which is how we know about it.  Although the evidence for a Count Walsegg plot doesn't seem ironclad, in part because Mozart inconveniently died before the Count had a chance to carry out his plan, if true the episode does suggest that trying to buy glory you have no way of earning is a time-honored human tradition. Apparently Walsegg did know how to compose but was a little less talented than the persons whose works he tried to appropriate!

A little subtler than flat-out stealing is the attempt by publishers to attach the wrong composer's name to a particular work. If Haydn happened to be all the rage in England (and he was), it would be a lot more profitable if a work which was actually by some poor fellow whose works weren't selling so well was trotted out to the public as a work by their esteemed idol. The public has a history of clamoring for a few fashionable figures at any one time, and a pathetic little ditty for piano would sell a lot more copies if it had a recognizable name on the cover. This ruse has been a little inconvenient for historians, because on occasion a symphony or other significant work whose merits were not so slight might have been given the name Haydn and actually composed by someone else. In a few cases it is not so easy to tell who wrote the work, leading to several cases in which musicologists argue over whether a great composer actually penned a particular piece.

Incidentally, name recognition has always been such a handy marketing tool that publishing houses have sometimes invented names for composers who did not actually exist as a sort of trademark. The young Johannes Brahms published his earliest compositions under the name G. W. Marks, a pseudonym which was used by any number of composers. In other words, Marks was whoever was writing under his identity in the publishing house at the time. Since the compositions were aimed at amateurs and were thought of as quickly written, quickly sold merchandise, a composer might write a few Marks pieces when he was in dire straits, but could not, and probably did not want to, claim them as his own. Brahms never bothered to identify which ones he had written, though his biographers like to guess. This put an air of false consistency on the whole operation, to give the public something to look forward to, on the assumption that the singular Marks had a particular style that they liked.   Interested patrons would pop into the store any time to ask for the latest piece by "Marks."

But if a composer was running short of funds, his ethically challenged siblings might just as easily. Beethoven suffered the indignity of having a few of his trifles published without his permission when his brother (probably claiming to act on Beethoven's behalf) helped himself to a few manuscripts and sold them to publishers. At least in this instance the pieces in question really belong to their author. And if they cause embarrassment, it should be remembered that Beethoven himself sometimes let fly with some of his less noble efforts when he needed cash.

You may have noticed that many of the above incidents actually involve ethical sliminess on the part of the composers themselves. Perhaps (as a composer) you were expecting me to rail against the distributors or the consumers and hold the creators themselves innocent of any underhandedness. If so, the above may be a good example of why rhetoric and history should not be mixed, or how facts can get in the way of a good conviction. Still, there is often a good reason for ethical slippages on the part of one party....namely, the threat of unfair treatment by everyone else.

There have been countless episodes in musical history of works which become quite successful and manage to make a pile of money for everybody but the creators themselves. Until the late nineteenth century, there was no law to protect a work of the intellect in this country. There was also very little to protect the publishers. This sometimes led to unscrupulous composers selling the same works to several publishers. But what continued to cause problems was the fact that outside of one's own country there were no laws to insure that a piece of music couldn't simply be taken to a publishing house and brought out in another edition without paying the composer a penny. Often the composer was not even aware that such a pirated edition existed, though he might find out by happenstance later on. This was particularly true before the days of international copyright law, when a work published in one country could legally be "stolen" and published in another without paying anyone a cent. As the more entrepreneurial composers caught on to this practice, they made it their business to negotiate the rights to their works in various countries with separate publishers.

Often, when a barrier goes up, a money-starved artist finds a way around it. Well into the 20th century the Soviet Union was not included in International Copyright laws. So Russian composers who had published their works at home couldn't protect their works from pirated editions in foreign lands. But if they themselves tried to republish the work abroad, they would be in violation of the copyright at home!  Fortunately laws are made up of technicalities, and composers like Igor Stravinsky found a way to fix the problem by bringing out an American edition which was considered an entirely different piece of music than the one that had been published in Russia. He simply changed a few notes.

Composers were not generally so lucky. Before copyright laws went into effect their was no way to keep pirated editions from finding their way into print and no way to punish the offenders. But the act of theft, should one have been defined, would have been against the publishers, the distributors, not the composers. Then, as now, it was the music industry that would have legally felt outraged. This is because once a composer gets a work published, he frequently relinquishes the copyright, meaning he no longer owns the piece of music he has written. He would actually have to get permission from his own publisher for the use of his own work, just like anybody else. Unless he has negotiated a good royalty agreement, in which he shares in the profits of the work's sales, he is not legally entitled to any moneys after he has sold his work. In the days before musical unions made sure that everybody got a piece of the action, it was possible for the composer of a commercially successful piece of music to see very little money from it while his publisher was getting rich.  This is one reason a wildly successful American songwriter like Stephen Foster died broke while simultaneously selling hundred of thousands (the population of the United States wasn't great enough to make it millions back then) of so many of his songs, many of which are quite well-known over a century later (it has also been suggested that a more plebian reason for Foster's financial straits was that he just didn't know how to handle money). Publishers were not known for their generosity, so even at the time of sale a composer might not get very much for his hard work.

Which is why a man named Scott Joplin did pretty well for himself when his publisher, John Stark, let him in on a deal that included part of the proceeds of every copy sold. Joplin made a respectable sum of money from his Maple Leaf Rag at the turn to the 20th century. It was a deal that his 19th century forbears could only have dreamt of.  But even Joplin would be shocked to see the kind of lucrative zeal with which, later in the 20th century, composers of Broadway musicals began to protect their works.  I would give examples, but am afraid if I so much as hint at specific material, I'll be sued for everything my family owns for the next six generations! Copyright laws may have taken a long time to develop, but once they did, they got teeth, especially when a powerful industry was out for money.

Obviously it is easier to protect your rights, and infringe on the rights of others, when you have a lot of economic power. Until recently, composers had very little, and publishers were not the conglomerates they often are today. But you'll note that throughout this little historical survey one very important part of the equation has been missing. The consumer.

This is largely due to the fact that until recently that consumer was, for reasons of technological limitations, unable to swindle his fellow man with the same relish as the men involved in production. Before photocopying there was no way to really take music that you didn't pay for unless you robbed a music store. People probably borrowed music from each other, but they couldn't duplicate it. And then, in the late nineteenth century, a new industry was born.

Musicians lamented the advent of the recording industry in vats of declarative ink. The phonograph's inventor, Thomas Edison, heard from Sir Arthur Sullivan on the matter "Dear Mr. Edison, For myself, I can only say that I am astonished and somewhat terrified at the results of tonight's experiment. Astonished at the wonderful form you have developed and terrified at the thought that so much hideous and bad music will be put on records forever." It wasn't the quality of the music that bothered many musicians, however, it was the way the importance of recordings seemed to shift the emphasis away from the actual music making. Many musicians were now afraid to take chances in the recording studio since every wrong note could now be saved for posterity. The public seemed to expect the same kind of perfection they were getting on records, a standard which has recently prompted some pop stars to lip-sync to their own recordings in "live" concerts. Concert goers attend live shows because they want to hear a live version of the records they hear at home, surrounded by masses of like-minded fans--that is, when they attend concerts at all. Some parts of the industry seem to be in more trouble than ever, particularly "classical" ensembles, who go bankrupt with the kind of clocklike regularity that sounds like a Public Service Announcement ("every 35 seconds an American symphony orchestra goes bankrupt!") and whose recording industry has basically collapsed because there are too many recordings of the standard repertoire to choose from and too small a sliver of public interested in buying them.

But it is also the advent of records, or tapes, or CDs, that has allowed audiences a kind of access to music that they never had before. Previously, if you borrowed or stole a copy of sheet music, it was still necessary to be able to recreate the music yourself. Now just about any primate that can push a button or two can recreate command performances of his favorite musical complexities, and the machine does all the work. This kind of ease has created a much higher demand. One may reason, if it is not necessary to put forth effort to learn the music, is it not therefore also unnecessary to put forth money? If it is this easy to have my own music, why couldn't it be even easier?

The internet has become popular at a time when everyone has unprecedented access to all manner of machines that can easily create copies of any recording. It has even created some new ones. This had made life interesting for anyone involved in the creation or distribution of music, because otherwise, given the stringent copyright laws and strong unions and advocacy groups now looking out for the rights of the composers and the publishers (like ASCAP, for example), things could have gotten a bit boring.

Sure, accusations of song-stealing still surface at times, and composers are bound to feel themselves occasionally ripped-off by a deal they negotiate with a large publishing house. But generally, creators and distributors alike have some legal recourse to enable them to get paid for their work. And whenever something comes along that complicates things, such as the plethora of radio stations using tiny bits of a person's song to let people know the commercials are over, or as part of a commercial, or to pipe through a shopping mall, or as part of a movie, lawyers for all persons involved in legal ownership of that song make sure everybody gets in on the action. There are various formulas to divvy up the dough in a roughly equitable way when it is impossible to determine precisely who did all the consuming and for how long a particular song was used. Even covers (remakes by somebody else) of copyrighted songs require that the copyright holder gets paid a few cents per record sold of the new version. And royalty checks keep coming.

The internet is just the latest episode of unregulated commerce. At least for the moment. There are ways to figure out who is downloading what, as some people who are getting sued are finding out. There are also various attempts to make sure that consumers pay for their product. And in some cases musicians and distributors are offering at least part of their product free to the user, and trying to make their money someplace else (like by advertising or live concerts). As in the early days of any new industry, various business models abound.

Not that this makes downloading copyrighted music without consent ethical (or legal). It just means that the music industry is going to have to figure out a practical way to deal with it. And it brings to mind the rather odd experience of our good friend Sergei Rachmaninoff over a hundred years ago. He had just written a prelude for piano that was about to become a huge hit. Shame he didn't know that at the time.

It really isn't the greatest thing he ever wrote by a mile. But for some reason, maybe because of its outright drama and fire, it caught on all over the world. Its rapid distribution was aided by the fact that its young composer didn't bother to copyright it. It was known by its composer as the "Prelude in C# minor, opus 3 number 2", one of a set of five short pieces his publisher asked him to write for something like 50 dollars each. It was the last money he ever saw from the famous Prelude. Pirated editions soon appeared throughout Europe.

When Rachmaninoff began to concertize outside of his native Russia he met the Prelude in many forms. Since it has always been easier to sell music if it is attached to some epic happening, the piece began to masquerade under several aliases, such as "The Burning of Moscow" or even "The Moscow Waltz." Moscow was sufficiently exotic for most people outside Russia, and to have a great tragedy like Napoleon's disastrous invasion of Russia during which he burned Moscow to the ground out of frustration just seemed like good business. Leave it to the composer to think that a boring piece of just plain old music could sell without a creative story line, such as being about a war! As for "The Moscow Waltz," the fact that it bears not even the foggiest resemblance to a waltz or any other kind of dance didn't deter publishers who thought it would be a great way to get more people to buy it.

When Rachmaninoff was asked about the inspiration for his prelude, his thoroughly unromantic reply was "40 rubles."

And if this demonstrates that he was out of touch with the music-buying public, his later transgressions are even worse. 

Rachmaninoff was naturally required to play his "greatest hit" at every concert, a fact of life that drives many musicians crazy after a while. Being the piece's creator, and an experimenter, he had the gall to play the piece differently than he had originally written it. Critics in England were quick to point out that Rachmaninoff had forgotten how to play his own piece.

Whether he was playing it "correctly" or not, his little piece had gotten him plenty of attention--and no money. Everyone was playing the piece. He wrote

"Under the circumstances I should be thankful, I suppose, that I wrote the composition. But I am undecided whether my oversight in neglecting to secure international copyright for it was altogether fortunate for me. Had I copyrighted it, I might have had wealth as well as fame from it. And again, I might have achieved neither. For when I learned of the wide success of this little work, I wrote a series of ten preludes, my Opus 23, and took the precaution to have them copyrighted by a German publisher [remember, Russian copyrights didn't count in the wide world]. I think them far better music than my first preludes, but the public has shown no disposition to share my belief. I cannot tell whether my judgment is at fault or whether the existence of the copyright has acted as a blight on their popularity. Consequently it will always be an open question with me whether intrinsic merit or absence of copyright was responsible for the success of my earlier work."

By this time, he was an international celebrity, and did not need to be greatly concerned that he was losing money. But behind this generosity of spirit, and the humility that comes with years of dealing with the unpredictable public, lies a fascinating speculation. Is it because the work was easy to disseminate that it became such a standard? If third-parties had had to pay for the work, would they have turned it down? And could their lack of ethics coupled with a blatant, narrow selfishness actually been to Rachmaninoff's advantage? We'd better hope so, for, if the recent happenings on the internet have shown anything, it is that if we depend on people in large numbers to act with integrity and honor in accordance with the composer's and distributor's wishes, or even the law, rather than just doing whatever they think they can get away with, we're all in trouble.


for further information:

The U.S. copyright office with all kinds of legal information is at  http://copyright.gov


On the other hand, this resource may be more user friendly. It contains step-by-step tutorials about copyright issues 
and is particularly interested in the internet. Is it called Who is Hosting This?


Read about some of the latest issues (and court cases) related to copyright at www.benedict.com. It claims to be the internet's premiere copyright resource. Beyond the grandiose claims and expensive offer to register a copyright which, as I understand it, the U.S. Copyright office will do for you much cheaper, is an engaging writing style and lots of informative articles.