The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Monday, 5 June 2017

"Mozart and Other Pirates"

Christophe Rousset
On the First of June after a hot day in London, this GuestKat found himself at the UCL Cruciform building for a special event put on by the Institute of Brand and Innovation Law (IBIL). The theme was how composers in the time of Mozart made use of each other's material at a time before copyright law, comparing this with the modern position. This was explored with the aid of a distinguished conductor and harpsichordist, Maestro Christophe Rousset, director of the ensemble "Les Talens Lyriques", and soon to make his debut at the Royal Opera House, Covent Garden, of which more later.

The evening began with Professor Sir Robin Jacob explaining that we would be looking at how much copying the law allows and whether there should be a defence of "transformation". He reminded us of the story of the young Mozart writing down the Allegri "Miserere" from memory after the Vatican had foolishly let him in to listen to their closely guarded secret. Looking at other genres, including the famous photograph of Marilyn Monroe transformed by Andy Warhol, he reminded us that all art may involve copying to some degree. 

English law has a straightforward approach to infringement - you have to copy the whole of a work or a substantial part of it. There is no infringement if no copying; nor is there infringement if the boundaries of the idea/expression dichotomy are not breached. But Sir Robin reminded us that this is a tricky concept, quoting Judge Learned Hand who said that: "...nobody has ever been able to fix that boundary and nobody ever can."

Giving us some examples of English copyright cases in the musical field, Sir Robin started with the case of Francis Day & Hunter v. Bron [1963] Ch. 587 concerning "In a Little Spanish Town". Despite some evident (to this GuestKat at least) similarities with the alleged infringing song "Why", the court held that there was no evidence of copying, consciously or unconsciously. A more recent example was "Chariots of Fire", which received the Oscar for best musical score. Listening to the music from which this was allegedly copied, from "City of Violets", a Greek soap opera, there were again some obvious similarities. But on the facts of the case infringement was again not found. 

Contrasting the UK approach with that in the US, in which juries make the determinations, Sir Robin posed the question how musically knowledgeable should the tribunal be? This led to a discussion (illustrated with musical extracts) of the Marvin Gaye estate's complaint against Robin Thicke and Pharrell Williams concerning the songs "Got to Give It Up" and "Blurred Lines", in which the jury found infringement. In contrast, in the comparison between "Taurus" by Spirit and Led Zeppelin's "Stairway to Heaven", it was decided there had been no infringement. We also heard about Harrington and Leonard's dispute with Ed Sheehan about similarities between "Amazing" and "Photograph", in which the matter was settled.

His Honour Michael Fysh QC SC then took over in his familiar style, liberally peppered as always with anecdotes, and gave us an introduction to Christophe Rousset. The Maestro then gave us several musical examples from Mozart and his contemporaries, including Martin y Soler, Paisiello, Jommelli, and the infamous but unfairly maligned Salieri. These were enough to convince this GuestKat that young Wolfgang would have been in some trouble if copyright laws had existed in his day and some of his contemporaries had sued. 

It was clear that Mozart and his fellow composers were working in very similar genres and there was much cross-fertilisation. Nevertheless, to this GuestKat, the Mozart examples always seemed to be an improvement on the originals (maybe for reasons of subjectivity or familiarity) leading back to the question posed by Sir Robin at the beginning, whether "transformation" should provide some defence. 

One trenchant comment from an eminent musical expert in the audience was to the effect that paying homage to other composers was fine, but at least nowadays most would want their "homage" paid in cash! The evening concluded with questions from the audience, a rare mixture of musicians and musicologists as well as lawyers, and this GuestKat then repaired to dinner with some of the participants to continue the discussions. 

Those wishing to see and hear more of Maestro Rousset's talents should look for tickets to see Mozart's early opera Mitridate Re di Ponto (composed when he was 14) here.

6 comments:

Anonymous said...

What? No reference to "MY SWEET LORD" vs "HE'S SO FINE"?

Anonymous said...

A great write-up. I wish I was there.

Anonymous said...

The "composer as creative artist" idea started at the end of the 18th century with the influx of new ideas, and it was Beethoven who gave voice to it with regard to music. Prior to that, composers were regarded as craftsmen, and required to eat with the servants (Beethoven insisted on eating with the master of the house, and in a prominent place). Music was therefore merely bits of craftsmanship, which other composers could borrow. Bach was known to be an eager student of other composers' works. Nobody can deny that one of the greatest products of human genius is the St. Matthew Passion, yet The Big Tune is not by Bach, but by Hans Leo Hassler, written a century earlier. Bach also used the same tune twice in the Weihnachtsoratorium. Composers regarded it as a compliment to be plagiarised, a mark of their status and ability.

Anonymous said...

Though in Bach's case there was a specific intention to include know hymn (chorale) tunes so the congregation could join in as part of a devotional work.

Anonymous said...

The real problem in copyright laws for music is, that the laws were made by people who where scholars of law and not of music. Copying, borrowing, lending, seeking inspiration, including etc. have been part of music always, but as lawyers we seek to interpret the conception of a work of art as an "immaculate conception" which is irreconcilable with how music is created. So, maybe FRAND is the way forth, also in music?

John said...

Prior to that, composers were regarded as craftsmen, and required to eat with the servants

There's a story, perhaps apocryphal, that Rachmaninoff was once engaged to give a recital during a gathering of various wealthy New Yorkers at a party on Long Island. By that time of his life, he was world famous and widely regarded as one of the finest virtuosi of his time. The time came to agree his fee and once the (astronomical) price had been set, the agent said to him "and Mr Rachmaninoff, you do understand that it is expected that you will not socialise with any of the guests after your performance". And with that, Rachmaninoff promptly halved his fee.

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