Fine Art of Distinctions

Terry Teachout in Wall Street Journal • 6 January 2007

Fine Art of Distinctions • the line between creative performance and actual authorship blurs

What is intellectual property? Who owns it – and who deserves to get paid for it? Playgoers and music lovers don't often have occasion to ask such rarefied questions, but they've lately become important to the producers of a Broadway musical and the members of a British rock group.

. In November the director, choreographer and designers of the Broadway production of Urinetown publicly accused the Carousel Dinner Theatre of Akron, Ohio, and the Mercury Theater of Chicago of copying their work without permission, and demanded royalty payments in return. The Akron and Chicago companies denied the charges and sued the Broadway production team for defamation.

Last month a London judge awarded 40% of the copyright [sic] of Procol Harum' A Whiter Shade of Pale to Matthew Fisher, the group's ex-organist. Mr Fisher, who had asked for 50%, doesn't claim to have written the song, but he did write the Bach-like organ countermelody heard on the group's 1967 recording of A Whiter Shade of Pale, which sold 10 million copies. Judge William Blackburne called the countermelody "a distinctive and significant contribution to the overall composition and, quite obviously, the product of skill and labor on the part of the person who created it."

At first glance these two cases may appear unrelated – but I wouldn't be surprised if they both become landmarks in the evolution of copyright law.  Time was when the "authorship" of a work of art was usually (if not always) a clear-cut matter. Nobody wonders who wrote David Copperfield or painted Guernica. Even in the performing arts, it's long been taken for granted that the mere act of performance creates no enforceable property right on the part of the performer, not even in the case of such unforgettable interpretations as, say, Marlon Brando's Stanley Kowalski or Arturo Toscanini's Otello.

A recent case in point is Erin McKeown's new album, Sing You Sinners (Nettwerk). Ms McKeown, one of the freshest singer-songwriters of her generation, has chosen this time around to cut an album of standards. What sets it apart from the superficially similar efforts of such aging rock stars as Linda Ronstadt and Rod Stewart is that Ms McKeown isn't recycling the smooth sounds of yesteryear. Instead, she sings Something's Gotta Give and Just One of Those Things as if she'd written them herself, performing them in the casual, slightly rough-hewn style of her previous albums, We Will Become Like Birds and Grand. The effect is both arrestingly personal and utterly contemporary – yet the songs remain recognizable as the work of Johnny Mercer and Cole Porter, and it would never occur to anyone, least of all Ms McKeown, to claim that the versions heard on Sing You Sinners are original compositions in any sense of the phrase, legal or otherwise.

But what about "performance arts" like jazz and postmodern theater in which the acts of composition and performance can be all but impossible to disentangle? Who, for instance, is the true "author" of Charlie Parker's 1947 recording of Embraceable You, in which George Gershwin's familiar melody is never heard?

Historically, a director's staging of a play has had the same legal status as a singer's interpretation of a song, but John Rando, the director of Urinetown, thinks it should be protected by copyright and subject to royalty. Whether or not the directors of the Akron and Chicago productions of Urinetown stole his ideas, this claim is clearly defensible, as is Judge Blackburne's ruling in the Whiter Shade of Pale case. Mr Rando is one of New York's best stage directors, and I have no doubt that his work on Urinetown constituted "a distinctive and significant contribution to the overall composition." As for A Whiter Shade of Pale, anyone familiar with Procol Harum's recording would be likely to agree that Mr Fisher's countermelody is an integral part of the song.

Here's the problem: Where do you draw the line separating creative performance from actual authorship? Yes, Phil Woods's coruscating alto saxophone solo on Billy Joel's Just the Way You Are is one of that song's most memorable features – but does that fact entitle Mr Woods to a share of the royalties that are paid to Mr Joel for having written the song?

Such vexing questions are being asked against the backdrop of a furious copyright-related battle that has been triggered by the emergence of the Internet. On one side are the technogeeks who believe (in Stewart Brand's popular catchphrase) that "information wants to be free" and that the Web has made all traditional definitions of intellectual property rights obsolete. On the other are the copyright-happy bean-counters determined to make you pay for permission to quote two lines from a song lyric on your blog.

No doubt the legislators and judges who drag copyright law into the 21st century will split the difference between these unworkable extremes. Mr Rando and his colleagues, like Mr Fisher, will presumably end up somewhere in the middle – but where? I've no idea, though I know this much: the
lawyers will make out like bandits. They always do.

Terry Teachout, the Journal's drama critic, writes "Sightings" every other Saturday and blogs about the arts  at www.terryteachout.com.
Write to him at tteachout@wsj.com.