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 do also employ lots of "little people,"
whose livelihood depends on the corporate bottom line
too (even if they aren't paid fairly). So maybe its
not quite 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. Unfortunately for the
count, Mozart inconveniently died before the Count had
a chance to carry out his plan. 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 pedestrian 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.
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