Creep into the, oh forget it

Draw a straight line and follow it.

Apparently I’ve just broken copyright law. I can’t believe what’s holding up my Cage book: you are no longer allowed to quote texts that are entire pieces of art. This means I’ve been trying to get permission simply to refer to Fluxus pieces like La Monte Young’s “This piece is little whirlpools in the middle of the ocean,” and Yoko Ono’s “Listen to the sound of the earth turning.” And of course, Yoko (whom I used to know) isn’t responding, and La Monte is imposing so many requirements and restrictions that I would have to add a new chapter to the book, and so in frustration well past the eleventh hour, I’ve excised the pieces from the text. 

This seems not to have been the case 13 years ago. When I wrote American Music in the 20th Century, I quoted La Monte’s piece about feeding hay to the piano, and several others, without even footnoting them because they were so famous, and no one at Schirmer batted an eyelash. But now, if something’s changed and I can no longer quote Fluxus texts without getting permission, then I just have to write Fluxus off the list of things I write about. Some of these pieces are too brief to refer to without quoting them in their entirety. How do you use Nam June Paik’s “Creep into the vagina of a living female whale” as an example without giving the whole piece away? How am I supposed to refer to it: “Creep into the vagina, etc”? Call it Danger Music No. 5 and tell you to look it up? Paraphrase it: “crawl into the birth canal of a matronly member of the order Cetacea”? And if the copyrights are held by unreasonable people who can hold your book hostage to their detailed demands, then it’s just time to find a different research area. The situation is absurd, somebody under whatever questionable chemical influences scrawls seven words on a piece of paper and 50 years later I can’t refer to that piece of paper without paying someone some money and following their prescriptions. A couple of years ago my Music Downtown book was held up because the designer had used the Village Voice font on the cover. The creeping tentacles of copyright law are paralyzing the arts and making intelligent scholarship and even creativity impossible. 
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Comments

  1. Dmitri says

    I think paraphrase should get you out of copyright law, since copyright covers only the particular expression.
    I for one would enjoy reading paraphrased titles such as “Inscribe and pursue a noncurved edge.” You could add a properly outraged explanation of the madness.

  2. Luk says

    Very worrying: I am on the point of writing about these very pieces in my dissertation. I was actually going to contact you for advice on approaching LaMonte Young re this very matter and these very pieces, but I think I’ll just acquiesce and insert a paragraph describing how I cannot include these compositions in my historical survey.
    Just last week I found out that, even for a thesis that will not be published, Shirmer now asks money to permit me to reproduce musical excerpts. If I paid every institution (libraries for manuscripts / publishers for printed matter) that holds rights to the excerpts that I need to reproduce to illustrate points and arguments, my dissertation would cost in excess of 15.000US dollars for permissions alone.
    Some months ago I was warned that I may not have had the right to TAKE NOTES while studying Cowell manuscripts at the LOC in 1998.
    The only ones that I see taking advantage of this evolution are those who study 19th century music and composers who do not have a commercial publisher and who write about their own music.
    When will you be writing you musical biography, Kyle?
    KG replies: You don’t mean autobiography, do you? Nothing’s happened to me yet to write about. For my biography of Bob Ashley, I’m already trying to limit myself to things he and his wife/manager hold the permissions for. This is a pain.

  3. says

    Just think what would be different had middlemen (lawyers, publishers, whoever) swarmed on the Parody Mass and Hip Hop as they emerged.
    And hence, piracy becomes the only fertile ground for those who would look forward rather than backwards.
    Why don’t you pour shampoo on La Monte’s legal rider, and snip it in two. (Then post the vid on You Tube. It might be apt for students…)
    The question is not whether you can publish your ideas about these folks – the question is whether you can write a book and retain copyright so you/your editor/publisher can get paid, right? Why not leak your fluxus chapter onto the internet, and let it self publish.
    And don’t get me wrong, we all deserve to get paid. Just makes you wonder whether you can ever truly get paid for doing the right thing.
    Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s.

  4. says

    “The creeping tentacles of copyright law are paralyzing the arts and making intelligent scholarship and even creativity impossible.”
    Exactly.
    Which is why it should wind up in the dustbin of history.

  5. says

    I wonder what the legal status is of sentences such as “In the piece by Nam June Paik, in which the performer is instructed to creep into the vagina of a living whale, we can see…”. I mean, this is not quoting even though literally speaking the score is in there verbatim; it’s just a description. Or even “In his composition, La Monte Young instructs the performer to draw a straight line, and then to follow it”.
    If I would argue these cases, I would say that the important thing here is that in these descriptive sentences the scores are not literally presented, because they can only be presented when they are explicitly presented as scores. In fact that seems to be a fundamental aspect of the fluxus esthetic; it’s the fact that these absurd sentences are presented as the whole score that makes them pieces rather than lame jokes.
    In these cases, however, where you talk about “A piece in which the performer is instructed to creep into the vagina of a living whale”, the reader does not really get the score as such. Conceivably, the piece that you are writing about could have a score with very complex 15:17 rhythmic notations for the creeping rhythm and weird little pictograms signifying gaping whale holes. In that sense you’re not even quoting.
    The matter is seriously worrying though. I think your solution is great. If La Monte Young so clearly doesn’t want to be part of music history, we can just chuck him out. As we know, history is not carved into stone. It’s always open to revision.
    So long, Young!
    KG replies: It constantly amazes me how artists who obsessively try to control everything written about them, and performers who insist on outrageous demands for housing, fees, etc., continue to have careers. There are thousands of composers, and so many of them are so accommodating, it’s hard to see why anyone writes about or hires the rest. It makes me afraid that perhaps it’s the success itself that makes them that way, and that if I were highly in demand I’d become that way myself. I truly think I’d rather be obscure than a pain in the neck.

  6. says

    Ridiculous. Under these circumstances, is there any reasonable way of defining fair use for textual works this short? “You may quote the first three phonemes, but after that….”

  7. mclaren says

    Fair use is steadily diminishing. At some in the near future, the way things are going, fair use will cease to exist entirely. It’s becoming a real issue for scholarship but an even bigger one, potentially, for jazz, despite claims about the alleged protection afforded by paying ASCAP license fees, etc. At what point is the quotation of an entire theme from another piece of music violation of fair use?
    Problem is, anybody can sue anyone for any reason, fees be damned. And, as the RIAA has shown, filing a lawsuit boils down to a highly successful form of extortion. Faced with a choice of paying 100 grand in legal bills and a possible multimillion-dollar Jammmy-Thomas-style verdict at the end of the process, or coughing up 3 grand to settle, the typical John Doe ponies up the 3 kilobucks of exortion money.
    Think I’d trademark and copyright the note B flat. Can’t quote it without paying a fee, sorry, that’s not fair use.

  8. says

    To the second commenter, Luk, you definitely do not need to get permissions for an unpublished thesis or dissertation. Schirmer might not like that, but it’s pretty well-established in this country. Even if your paper is microfilmed by UMI/Proquest, you usually do not need permissions. Of course, should you revise for publication you would need to go back and get them, but no need to deal with permissions until then.

  9. Sanjiv Sarwate says

    It seems like everything described here is fair use, so I would suggest getting in touch with the Stanford Fair Use project or the EFF.
    KG replies: Possibly, but I’ve never tried to overrule one of my publishers on such an issue, and don’t even know how to go about it. If they’re legally afraid to print something (and La Monte is presuming on that fear), I don’t see how to do it.

  10. karl7777 says

    Why not write a piece that consists of the words, “Kyle Gann”? Then forbid utility companies from sending bills without paying you royalities. ;)
    KG replies: That’s almost as good as my son’s suggestion that I take “Miscellaneous G” as my stage name, so I’ll *own* the Misc. G bin in record stores.

  11. says

    Hi Kyle,
    Hey I am sure you could quote from any other current contemporary fluxus artists as seen on the Fluxmuseum. Feel free to quote me any time merely with a reference.

  12. says

    It’s getting out of control and I say this as someone who respects the concept of both ownership and moral rights over one’s creative works, but of course tempered by fair use.
    About 30 years ago I saw for the first time a book bought from a bookstore which had a licensing clause banning lending out or reading by anyone other than the original purchaser, that prevented it from being owned by libraries. This seemed very stupid and I assumed it was an invalid requirement. Since then, there have been a few times where I have seen “anti-library” clauses in hardcover books at the bookstore, and when I see them I refuse to purchase these books. Not that I would donate them to a library or even lend them necessarily, I just object to the antagonism against libraries on principle. It’s doubtful to me that the authors came up with this stuff, more of some MBA type implementing the iron fist of corporate control. However, it sounds like in the case referred to in this article, Young personally is overseeing absurd requirements. Which in this case, I suppose that is right as the creator. Perhaps foolish, but his right. At least in this case the objection came from the artist himself.
    The same is not the case for the recent insane case where the AP is attacking street artist and poster propagadist Shepard Fairey, creator of the Andre the Giant sticker/stencil campaign, and the Obey meme. Fairey created the iconic Obama Hope poster that was such a unifying symbol and was a key contribution of vision to the campaign. Fairey has mentioned that he used a news photograph of Obama sitting at a table and looking up to listen to a reporter’s question as a reference, but it’s clear the poster is only in the loosest sense related, with different angles, colors, background, and facial expression changed from one of attentive listening to that of a leader looking forward to the future with a vision.
    AP says the poster is nothing more than a direct exact copy of the photograph and as such, they own the poster, so Fairey better start paying tribute to them pronto or they will take his ass down.
    Never mind that the actual news photographer of the photograph says that he never signed anything assigning AP ownership rights, and that as the actual owner, he supports the poster and does not object to it nor want any compensation at all. In fact, he’s made quite a bit of money selling signed prints of his original photograph because of the history.
    In my opinion, copyright, as an acknowledgment of artistic moral rights to one’s artistic creations, is a good thing. It encourages original creative activity. Where it all goes to hell is usually at the point when the corporations, and their MBAs and lawyers get their fingers in to it, thinking about revenue schemes that are unrelated to the actual work of a creator.
    PS – Holy cow, if you type in the wrong captcha code, this blog throws away your whole post. That really sucks man.

  13. says

    “crawl into the birth canal of a matronly member of the order Cetacea”? — this made me laugh out loud, as did this, which I think FCM should copyright as a composition: “Why don’t you pour shampoo on La Monte’s legal rider, and snip it in two. (Then post the vid on You Tube. It might be apt for students…)”
    True story: Woody Guthrie’s publisher let any schoolbook publisher use any Guthrie song for free, thinking that having kids sing them in music class would be good for business in the long run. Seems to have been a good decision, musically and financially.

  14. Fred Lieberman says

    Back when I was a card-carrying member of Fluxus I wrote a response to LaMonte:
    Draw a straight line and let it follow you.
    (which you are free to quote, along with any other of my Fluxus works that were published by George Maciunas, or self-published by me.)
    Let me know if you published wants a written permission form…
    –Fred Lieberman
    UC Santa Cruz
    KG replies: Thanks very much, I’ll keep the offer in mind.

  15. says

    I couldn’t agree more.
    I’ve been waiting my whole damn life to be able to make works in response to my some from my parents/grandparents generation. Every time they are about to go into the Public Domain the “heirs” get an extension of copyright! I’m Tantalus!
    I put my own work on my web site. I tell people they should ask permission– but I’d rather have it stolen than be part of the insane system of hoarding, suppression and extortion copyright has become in my lifetime.

  16. says

    Schirmer’s attitude is ridiculous on many counts. In the first place I don’t know that their interpretation of copyright laws would hold up in court, though as mcclaren pointed out in an early comment to this post, such things don’t get to court but are usually settled. Also on a purely practical level Schirmer’s stance seems misguided. If people like you can’t write about Fluxus how will anybody know about Fluxus 20 years from now? From their massive radio play and CD/download sales? They exist almost entirely in a non-pop culture, non-commercial world and if scholars can’t write about them they’ll become less and less important and Schirmer will make less and less money from owning their copyrights. Which for them is clearly what it’s all about.

  17. Eric says

    “Some of these pieces are too brief to refer to without quoting them in their entirety.”
    When weighing the third fair use factor (amount and substantiality of the use) courts have accepted this argument as justifying fair use. See Kelly v. Arriba Soft (336 F3d 811): “If the secondary *821 user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her.” Also, see Nunez v. Carribbean Int’l (235 F.3d 18): “El Vocero admittedly copied the entire picture; however, to copy any less than that would have made the picture useless to the story. As a result, like the district court, we count this factor as of little consequence to our analysis.”
    This seems less like a case where you’ve “broken copyright law” as where your publisher is being unnecessarily cautious. But as you note, if your publisher is afraid to publish it, you can’t really sue them for that!

  18. says

    I guess I’d be interested in hearing what people think about collage style homages, each around a minute long. I stole a -lot- of music from composers like Cowell, Cage and Cardew to make one minute “portraits” that were later aired and broadcast (and continue to be).
    In the case if my work, I looked into the law after the fact (they were written in response to a class assignment) – over the years I have been trying to figure out a way to release them. One lawyer I spoke with wanted a retainer of $5,000.
    In the end, since the music can’t be released commercially, I decided to give away the music online. I don’t charge for them, and don’t ask for anything other than credit. So, I guess one way of getting around copyright, necessarily, is to keep your work outside the marketplace.
    This issue affects us all and the future of art as information and intellectual property is at stake.

  19. Conal says

    Publisher hopeless? Get a new publisher.
    Next?
    KG replies: And pay back a $10,000 advance on a book I wrote for the money? I think not. Maybe on my postminimalism book.

  20. Eric says

    Dean: My guess is that in your case it would be much tougher to show fair use. You would lose right away on the second and fourth factors, since the nature of the work is creative (2nd) and you would be cutting into a well-established market (4th). For the first factor (purpose and character of the use), since it’s a commercial use (especially, but not just if you were trying to release it for profit), you’d have to show that it was somehow transformative, and that would probably be hard, since it doesn’t sound like you’re putting it to a new use. If you were actually mixing the music such that it was playing simultaneously, say, that might be different because it could not be considered a substitute for the original (more analogous to a collage in the visual arts sense of the term). Not a lawyer, but that’s my guess.
    The difference with KG is that his purposes are “criticism, scholarship or research,” which would help greatly on the first factor since they are uses which are specifically sanctioned by the statute.
    On the other hand, a lot of copyright is risk management, as you say: there’s really no issue unless someone (a) notices and (b) cares enough to sue.

  21. says

    Eric –
    You are right about fair use – it’s frustrating. Like I said, one lawyer I spoke with wanted a $5,000 retainer. I’ve spoken with other composers who have mentioned in passing that considering certain impropriety per the composers chosen for these portraits – trying to make a sell on it- while I doubt they themselves would have cared – wouldn’t be part of the nature of the work.
    But this set of pieces has been broadcast numerous times, even choreographed, and played at fairly public venues like Galapagos in New York or the CEAIT Festival in California and whenever that happens, the law is being broken most likely, and although it’s never been tested, I doubt anyone would care to sue. So there is some public flexibility there.
    The music is in fact a “mixing”, which was at the time was an intensely attractive way for me to compose electronic music. And at least to me, the music is -completely- put to new use. You can stream it on Kalvos and Damian, for example, or on my site – where, like I said, it’s free.

  22. says

    The publisher’s lily-liveredness is precisely what enables this kind of idiocy—if you’re just reproducing the title, and titles aren’t copyrightable, then the publisher should have the stones to say so. Instead we gradually get used to diminishing rights beyond even the legal diminishings, just because the corporations don’t want to cause trouble.
    Isn’t it at least worth trying to push back with the publisher?
    KG replies: The title of “Draw a straight line and follow it” is technically Composition 1960 No. something-or-other. I’m not only quoting the titles, but the titles mean nothing without the sentence.

  23. Jeremy Grimshaw says

    Kyle,
    We should (and surely will) talk at the upcoming minimalism conference. My book on Young is currently nearing the signed-contract stage with a publisher.

  24. Jeremy Grimshaw says

    By the way, I also — perhaps foolishly — paid $50 to Universal Edition for the four bars (reduced and re-rendered, even!) of Webern that appeared in my dissertation. Perhaps the paying of these fees by dissertation writers reduces to us asking them if they would like money, and their saying “Well, sure, now that you mention it.”
    At the current rate, my royalties from UMI/Proquest will have paid for the Webern excerpt in 3 years.
    (And of course, when making the LMY book, I left out the Webern entirely.)

  25. says

    Last year, we wanted to quote LaMonte’s String Trio 1958, just the first note as an homage to the ‘first’ minimalist composition. We were denied permission to do so, without hiring a disciple to oversee the performance of this single pitch…..So we tranposed the pitch up a half step and took our chances….
    ron blessinger
    third angle ensemble
    KG replies: God, I wish I found that hard to believe.