The Hills are Alive with the Sound of Ricola

The heirs of America's most well known musical theater team, Richard Rodgers and Oscar Hammerstein II, have sold the rights to the works of these two artists to a foreign pension fund. In case you forgot, these include Oklahoma!, Carousel, South Pacific, The King and I, and The Sound of Music. Should you be alarmed that these landmarks of the American musical theater will now be foreign owned after being privately owned by their authors and heirs since creation? The answer is complicated.

The first place to look for a clue to assessing this sale is to examine how the news was reported. In the NY Times you'll find the story in the Theater section and in The Times of London it resides in the Business section. The NY Times gives some attention to the cultural import of these works by quoting the families' business manager that the buyers are "committed to maintaining high artistic standards for both future productions and the commercial licensing of specific songs." The quotes from the buyer's CEO indicate they believe

musical theater classics like Rodgers and Hammerstein songs were "a very solid investment" for pension money. Imagem is owned by the Dutch pension fund ABP and the European media company CP Masters BV. "I see musicals as a very big growth area for investment."

The UK Times article doesn't even mention artistic quality - from its reporter's point of view, the sale is all about the business opportunity that exists to license the songs for advertising. These shows are property in Europe and heritage in America.

Assuming that pension funds are exclusively focused on growing their investments to meet payout obligations, this sale is problematic. How long until the families' reputation for holding productions to the letter of the text is undermined by the lure of advertising revenue? How long until the lyrics of a song are transformed to sell a product - doing more damage to the integrity of these artists' work through mass replication than any theater production anywhere could even dream of doing? Or even worse, how long until a show can't get performed because of a non-compete clauses written into advertising licensing agreements?

In today's United States, copyright law is a mess. Different rules apply for every artistic medium and activity. The basic situation is that copyright holders have the authority to allow or prevent any change to their work and can sell to anyone for any price well beyond the lifetime of the creator. The Rodgers and Hammerstein heirs have the right to sell this cultural property to whomever they like for whatever price they can get. I suppose they decided their fathers' legacies would be well served by having an owner with an interest in licensing it to all corners of the globe. To secure this global reach, they've sold off an American cultural asset during a national economic crisis so Dutch pensioners, who have government provided health care and robust social services, receive their monthly retirement checks.

We have federal rules regarding foreign ownership of media companies and sensitive national security information, but not our cultural heritage. I doubt this sale will be reviewed by the Federal Trade Commission or any other regulatory agency. It probably isn't required. The arts aren't enough of a priority for anyone in government to even think about this sale as a national loss they way they'd decry the sale of an historic object. Nor do I recall seeing cultural ownership on the advocacy agenda of our national arts service organizations.

The fault here is not with the sellers or with the buyers. The fault is in our national failure to reach a balance between private ownership and the public good. Weeks after Wynton Marsalis challenged us to see that it is our homegrown arts that bind us together as a nation, we are reminded that like nearly all things in the United States, our heritage doesn't belong to the public. This is particularly true in the performing arts.

Countries all over the world have laws to ban the export of cultural antiquities or treasures. There is a very live debate going on now about the deaccessioning of art held by American museums in the public trust. Yet we have no mechanism for holding performing arts "properties" in trust. The National Endowment for the Arts doesn't acquire works of art for the public. The Library of Congress surely has copies of the Rodgers and Hammerstein works but not the rights. No theater that I am aware of has a "collectors fund" like museums to acquire the copyright on performing arts works. The trend to launch Broadway shows at non-profit theaters brings some royalty revenue to the theaters but I'm not sure if it includes an ownership stake in copyright or is a producers right for the first production. I don't believe Museums even hold the copyright on a work of art when they buy the object. (Correct me if I'm wrong)  This is a huge hole in the cultural sector's effort to keep heritage alive and intact.

The impossible question in a country founded on private property ownership is, "When does private property of any type become so important to the public that it can only be transferred to the public trust or supersedes private ownership and transfers to the public domain?" This is particularly pertinent to the arts because copyright has been extended and extended so many times that nearly a century's worth of creative output is privately held and out of reach.

This issue will arise over and over with copyright owners standing on one side and the public interest standing on the other. For example, Creative Economy initiatives are springing up across the nation. Cities, states, and economic development agencies are using incentives to entice artistic entrepreneurs to practice their creativity for local economic benefit. Those publicly funded entrepreneurs will then have the right to sell their privately owned work to the highest bidder anywhere in the world. Right now, the copyright owners have all the cards in their favor with the public demanding little.

This has to change. Today, I'm contacting Congresswoman Louise Slaughter of NY, Co-Chair of the Cultural Caucus, to ask her to begin looking into the issue of how the United States can preserve ownership of its cultural heritage. You can do the same by contacting her here.