Copyright at the Edge of Artistic Creativity

Copyright at the Edge of Artistic Creativity

Part of what makes studying the creative arts from a legal perspective so fascinating is the diversity of forms that art takes, and the ways in which law is sometimes underprepared to deal with issues brought forward through art. A classic instance of this problem is the case of Rick Gibson, a Canadian artist who made a name for himself in the U.K. in the 1980s. Unfortunately for him, though, the reason that he is well known is that he was found guilty of outraging public decency for producing and exhibiting earrings made from human foetuses in a London art gallery. Though he tried to defend his use of foetuses in that context as being no different from any other basic artistic material like clay or wood, he was unsuccessful in arguing this point. Still, the case raises interesting questions about how legal thought and exploring the boundaries of art can clash at the edges of creative thought.

Although the Gibson case dealt with a common law offense, copyright law and art are no strangers to one another either in terms of boundary clashes. Though most forms of art can comfortably fit into a Copyright Act’s definitions of terms like “musical work” and “artistic work,” there is some art that pushes at the boundaries. One case in the visual arts was Creation Records v News Group Newspapers, [1997] EMLR 445, where a British judge found that objects floating around in a swimming pool could not qualify for copyright under the legal definition of a “sculpture” ; there is indeed something to be said for the fact that objects floating around in a pool, subject to waves, wind, and who knows what else might not be fixed in the ways copyrighted works generally need to be. At the same time, completely aside from whether copyright applies or not, it is not too hard to imagine a scenario in which things floating around in a pool might conceivably be understood as artistic. To be clear, I make no judgement as to whether such a medium could produce good art, I’m just saying it’s far from impossible to imagine a pool filled with water as a modern blank canvas, given the many materials contemporary visual artists are known to work with. One senses that, if popular art in the year 2013 were to take a sharp turn towards pool installations, copyright as it exists today would probably be ill-equipped to deal with conflicts that might arise from this social choice.

As a musician, I sometimes wonder what would happen if some rather unique musical works from the past few decades were put before a judge in a copyright case. For a time, it looked like Mike Batt and John Cage’s estate were going to indulge me with their dispute over a piece of music comprised entirely of silence, but in the end they settled out of court. So, instead, today I want to throw out a few examples of musical works from the 20th century that are interesting to think about not just as music, but also as copyrighted works, and see what kinds of copyright issues they raise. Note that these challenging works sometimes push at the edge of public conceptions of what music ‘ought’ be, so I feel a little obligated to remind readers that whether one thinks the art is good or bad is irrelevant in the case of copyright; or, as Judge Learned Hand once wrote:

“Certainly the qualifications of judges would have to be very different from what they are if they were to be constituted censors of the arts.” (Hein v Harris, 175 F 875 (CCSDNY 1910), aff'd 183 Fed 107 (2d Cir. 1923))

In other words, judge the art for whatever aesthetic value as you please, but divorce that judgement from that of whether a work deserves copyright protection or not. Whether the music is good or bad is no consequence to the law. So, in this spirit, let us consider works by three contemporary composers, and see what interesting copyright questions are raised by their art. To be clear, I intend to raise more questions than suggest answers in what follows, and I certainly don’t pretend to have all the answers to the questions I ask (I do have opinions, but sharing them isn’t the point of today’s exercise). Rather, the questions as a whole illustrate how at the creative edge of music, conventional paradigms of copyright cease to apply cleanly and bring about some uncertainty as to the correct application of the law.

Let’s begin with examples that straddle the line between visual arts and music. Here are the musical scores to some works from American composer George Crumb’s first Makrokosmos (1972) for solo piano (through the magic of YouTube, you can listen to the entire set here, here, and here). Three scores are reproduced on the page: #4 Crucifixus, #8 Spiral Galaxy and #12 The Magic Circle of Infinity. What’s most striking about these scores is how they are visually organized on the page to correspond to reflect some aspect of the title; the musical notation, while present, is hardly conventional. There’s also something of a pleasing visual aesthetic in looking at the score (especially for the latter two), an asethetic that conventional musical scores simply don’t reflect.

So the copyright question here is: are George Crumb’s above pieces musical or artistic works, as per the terms’ definitions in the Copyright Act? The categorization might actually matter; for example, in collective licensing, where tariffs are meticulously spelled out for each and every use, venue, work, etc., a work’s categorization may affect the rates a collective society can charge for its use in a given context. If I perform these works in a concert hall, should the royalty to Mr. Crumb be any higher or lower than the fee charged for exhibiting these scores in an art gallery? It’s a tricky question, for sure; the art’s categorization is at least partially in the eye of the beholder, according to the context in which the work is experienced.

Of course, Makrokosmos is just a warm-up exercise. Let’s move on to a more extreme example: Karlheinz Stockhausen’s (1928-2007) Helicopter String Quartet (or as it is known in the original German, Helikopter-Streichquartett), composed in 1993. You can consult the score here if you want, but despite all of its nice colours, to really get a sense of what is going on, you’re much better off viewing an excerpt from a performance. Click here for that when ready; but, be warned, it blows the minds of even seasoned musicians to think this actually happened!

As you can see, not content to have his string quartet performed in a concert hall (or even a more modest school gym, subway station or street corner), Stockhausen takes to the skies for the performance of his Helicopter String Quartet. I have no idea if the helicopters themselves are choreographed in some way or if Stockhausen allows them to fly whatever formation they wish. In any case, the performers and helicopter pilots go off and do their thing while the performance is radio-broadcast back to an audience on the ground through speakers. The audience is invited to view the performance from a distance, so to speak.

Now, to the copyright question. Imagine this (fictitious) scenario: after a recorded Canadian performance of the Helicopter String Quartet, one of the helicopter pilots from the recording launches a suit claiming credit as a performer, and thus a share of the royalties from broadcasting rights and the like. Should this be allowed? The term “performer” is not defined in Canadian copyright law, so the term would need to be defined by the courts. There are arguments on both sides. On the one hand, a helicopter is not really an instrument, and its pilot is not ‘playing’ the helicopter as if it were an instrument, either. Second, there is meaningful gap in our understanding that while both piloting a helicopter and playing the cello require skill, those skills are of such a very different kind that we conceive of them as being unrelated, certainly much more unrelated than, say, playing the cello and playing the piano. We conventionally conceive of the job of a pilot as more of a mechanical technician than we do as a skilled artistic performer. That being said, on the other hand, in this instance the helicopter is providing an important part of the distinct sound of the piece, a percussive background of sorts, and this sound constitutes an integral part of the Helicopter String Quartet experience—after all, if you don’t have helicopters for the Helicopter String Quartet, you’re not doing it right, and helicopters are of little use without pilots to guide them through the air. Additionally, copyright laws ordinarily protect plenty of ‘technical skills’ that might not be properly “expressive” in the conventional sense of the word, skills like producing master sound recordings or writing computer code; along the same vein, is there any reason technical expertise in piloting a helicopter as part of a work’s performance ought not be protected, if it contributes to the performance/realization of the work?

In short: what/who is a performer, under copyright law? If this is fairly straightforward a question to answer in most instances of music and the arts more generally, Stockhausen’s Helicopter String Quartet certainly puts the question front and centre, with unclear answers.

One of the most mind-bending works I’ve encountered and tried to rationalize under copyright has to be Surface Tension (2009), conceived by Eve Egoyan and David Rokeby. Rokeby himself describes the piece in this way just beneath a YouTube video showing excerpts from a performance:

“Pianist Eve Egoyan improvises on a grand piano and each note she plays is presented visually on a large projection screen rising out of the piano. [...] The software, written by interactive artist David Rokeby, is designed to pick up and represent a variety of performance features like dynamics, pitch, harmonic relationships, durations of notes and pedaling. The result is a entrancing work in which music and image are intertwined in an extraordinary way, with neither element dominating.”

Having attended a live performance of this work, I can attest that the video accurately reproduces what goes on live. Essentially, music is improvised from an idea (for example, long, slow, elongated tones in the second movement), and the sound signal that results from this is sent into a piece of specially-designed software which then transforms those sounds into something halfway between an image and a video, all in real time. The video is projected on a screen for the audience to consider as it listens to the pianist.

Categorizing this work is itself a challenging task: is it a musical or cinematographic work? Or, even, is it a literary work, given the prominent role computer software plays in mediating the whole work-process? This assessment is complicated by the fact that it is the music that directly generates the visuals, though in a somewhat random way; specific notes are not mapped onto specific events, just a general development of the visual idea already under way. The fact that the whole thing is improvised by the performer (as opposed to read from a score) further complicates identifying what the preexisting “work” is independent of its performance; in some sense, the work can only be experienced through performance, in ways that, say, a poem, need not be. It’s clear that there exists a work somewhere in there, it’s just difficult to cleanly isolate it among all the interdependent factors that contribute its performance.

Second: is Rokeby entitled to a ascend to the rank of “performer” here? He is, after all, the author of the software that is generating in a sometimes random and sometimes orderly way an odd ‘video’ that matches the music. But is writing highly specialized and innovative software enough to become a performer, too, when that software is applied in artistic contexts? Or is he merely one of the authors of the work, separate from its performance? After all, Eve Egoyan could improvise exactly the same music at the piano without a video screen, and that would be straightforward enough to decide that she alone is a performer. But once we add the other devices in, the question of who is “performing” the work is trickier.

In summary: there is clearly art, but how clear is the place of copyright in that art?

Now, if I were accused of copyright esoterica here, I would well confess to the crime. But one of the underlying ideas of this IPilogue entry is that new art can push at the boundaries of what we all thought were settled questions in copyright law. What would we do if one of the above underground currents suddenly turned mainstream? Historically, we’ve periodically revised some definitions of the Copyright Act to keep up with new artistic trends: some time after sound recordings became a thing, we protected sound recordings; in the late 1980s when the definition of a musical work as “any combination of melody and harmony, or either of them” became unworkable in Canadian copyright law (say, due to the emergence of rap, which is based around rhythmic more so than melodic/harmonic musical ideals), the 1988 Copyright Act changed the definition to the one that remains on the books today (“any work of music or musical composition”). Yet, there’s still some delay between when an artistic/legal conflict emerges and when copyright law adjusts to recognize the conflict one way or another. While it’s hard to imagine helicopter-based musical performances taking off as a major musical genre, the idea behind Surface Tension is much less farfetched as a mainstream concept, especially in a society that already glorifies music videos. Who knows in what ways new artists might expand that concept; and who knows if copyright would be apt to deal with conflicts arising from the composition and performance of such works, in case such claims came to court. Slowly but surely, as creativity pushes forward, copyright’s goal posts move further away. That, indeed, is the problem copyright faces at the edge of creativity.

Guillaume Laroche is a Graduate Student Member of IP Osgoode and an LLM candidate at Osgoode Hall Law School, where he researches issues on music and copyright.