In contemporary discussion and debate about copyrights in the digital-age, the parties who argue in favor of revision of the law so that it may “conform to the 21st century,” like to pick on William Shakespeare and Vincent Van Gogh quite a bit. References to The Bard tend to be made most often in the context of derivative works—that his plays are proof that the production of great works demands that artists must be able to borrow, remix, and build upon existing works without restriction. After all, if Shakespeare had to steal plots, etc., how can mere mortal authors be expected work any differently? And where would we be without the numerous subsequent works based on Shakespeare’s plays, or the thousands of words and phrases he added to the English lexicon? On other side of the coin, we find a relief of poor, mad, ruined Van Gogh, often displayed as the prime example of the artist who will create under any adversity—perhaps even create best because of the most dire adversity. And while it is true that certain figures tend to become generic archetypes in casual discussion (e.g. Einstein = genius), references to Shakespeare and Van Gogh in these intellectual property debates tend to be deeply flawed in my opinion.
At the very least, skepticism is called for when reform to copyright is supposedly mandated by 21st century technology, and the reformers making the argument refer so constantly to one artist who died over a century ago and another who died four centuries ago. In the case of Shakespeare, the society in which he lived and conditions under which he wrote are so alien to our own, that I believe his example offers little guidance for any discussion about contemporary copyright. And as for Van Gogh, he was such a tragic anomaly as both an artist and a man that I would argue it is in our own selfish interest as consumers to foster a population of creators whose lives read nothing like this sad biography. Having said all that, though, it seems only practical to discuss these artists separately in a two-part essay.
Shakespeare’s Remixes
Shakespeare unquestionably provides a context for many conversations about the creative process, about language, about building upon works, and even about outright infringement. But the time, place, and manner in which Shakespeare’s theater company and its competitors produced and performed their plays is a world not merely different from—but is entirely antithetical to—the modern, culturally diverse society forecast by scholars of the Enlightenment, who proposed to grant property rights to the creative and intellectual works of individuals.
In fact, I would argue that invoking Shakespeare in the context of a copyright discussion is cheating for two reasons: the first is that there is much we cannot ever know about Shakespeare; and the second is that what we do know is of little use in this regard. As historian Bill Bryson points out in his book Shakespeare, The World as Stage, we actually know very little about the man insofar as any credible record is available. This may seem counter-intuitive given the vastness of Shakespearean scholarship, but one of the reasons Bryson is among my favorite authors is that he tries to be quite rigorous about acknowledging where data does or does not exist to support or reject even a widely accepted fact about some bit of history. For instance, in this book, he begins with an account of three likenesses—a painting, an engraving, and a bust—which serve as the only sources of our notion of what Shakespeare looked like, but Bryson makes clear that there is no evidence whatsoever to verify that any of these likenesses are in fact William Shakespeare.
Shakespeare the man is mostly a mystery. So, the creation of the plays—setting aside the many unprovable theories that figures other than Shakespeare wrote them—is a story sewn together with threads of interpolation and patches of sometimes educated guesswork. Moreover, the plays we think of as the original versions represent the best efforts of Shakespeare’s colleagues, working after the author’s death, to assemble and publish the first folios, which was an imperfect process to say the least. Nevertheless, the plays clearly demonstrate that with regard to plots, devices, characters, and even whole passages, Shakespeare did indeed borrow, build upon, remix, and steal like a pirate. But then so did all of his contemporaries, although not–I will argue–because the creative process as we know it today would otherwise have been stifled.
The copyright critic who invokes Shakespeare, seems to love Romeo & Juliet. This is because the play is arguably a reworking of the poem The Tragicall Historye of Romeus and Juliet, written by Arthur Brooke in 1562 (two years before Shakespeare was born); that Brooke’s work is likely a retelling of a story by the Italian Mateo Bardello, which likely owes something to Ovid’s Pyramus & Thisbe from Metamorphosis; and of course, we have this love-cursed lineage to thank for West Side Story and so on. Thus, the chronicle of Romeo & Juliet has been regularly cited by generalists, copyright skeptics, legal scholars, and even by sometime IP critic, Judge Richard Posner, as indicative of the essential need to build upon existing works in order to produce great new works. Shakespeare did it, and he was a genius.
Of course, when Shakespeare is cited in this way as a generic icon of the literary genius—though he was certainly a genius in a very specific way—it stokes an unhelpful understanding of both this author in particular and this unique period (1567-1642) of English theater production in general. Shakespeare wrote all of his works between roughly 1590 and 1613, making him moderately prolific, by both modern and Elizabethan standards, relative to his tremendous legacy of influence. All scripts were the property of the companies, and so Shakespeare and his fellow playwrights derived what theatrical income they could from an ownership stake in the companies, rather than from the plays themselves. Ben Jonson, Shakespeare’s closest rival, died in poverty.
From other details about the time, I think we can reasonably eschew the image of the quiet, solitary author beavering away with quill and candle while the “theater world” awaits his next masterwork. This tableau would be stuffing a modern playwright into an Elizabethan collar. Instead, the theater of Shakespeare’s time was far more frenzied, collaborative, extemporaneous, rushed, occasionally careless—and yes, dependent upon works in the commons—in contrast to any enterprise that would resemble modern play production. A company like Shakespeare’s The Lord Chamberlain’s Men had to attract some 2,000 visitors per day roughly 200 days a year, according to Bryson, cycling through as many as five or six different plays per week. The competition was fierce for a population of Londoners, who worked long hours in between fending off plague and an assortment of other exotic, fatal maladies that would sweep through the city. Hence, a theater company might keep as many as thirty plays in its active repertoire, requiring a typical leading actor to memorize some 15,000 lines in a season.
In addition to afternoon, public performances, a company may be required to perform a particular play on command at court or for its patron or other noble audience. All plays were licensed (sanctioned for performance) by the Master of the Revels, who had the power to jail members of the companies; so for all the nuance we may unpack from Shakespeare’s poetry, he and his contemporaries did not enjoy free speech by any definition we would use today. And on this matter, one distinction about Shakespeare, which truly separates him from the modern artist, is that he never wrote about his own contemporary England. Indeed, given the close brush with sedition arising from one command performance of Richard II, it could have been rather treacherous to write about current events in his time.
So, it would be understatement to say that Shakespeare’s world was a radically different creative environment from the modern theater, and for that matter, from modern motives or methods for producing nearly all works. It is therefore a fallacy, I think, to try to view 16th century attitudes about the common property of certain works through the lens of contemporary artistic production, let alone to transplant those attitudes into a conversation about 21st century copyright. Given all of the circumstances we do know about the world in which Shakespeare and his contemporaries wrote their plays, it is little surprise that he and the other writers of his time were constantly borrowing and remixing plots, themes, characters, or even one another’s lines, in ways that are not comparable to the greater diversity of distinctive works produced after the Enlightenment—to say nothing of post-revolutionary, and then 20th century, America. There simply is no useful comparison between the life and times of William Shakespeare with the life and times of a playwright like the subversive Sam Shepard that may help us better understand the role of copyright’s boundaries and exceptions in the creative process. And all of the Copyright Acts that have been built upon the IP clause in our Constitution are really designed to produce Sam Shepard, if you think about it.
Of course the reason Shakespeare was Shakespeare has little to do with plots, either borrowed or invented, and everything to do with what Bryson calls “the positive and palpable appreciation of the transfixing power of language.” In this regard, Shakespeare was both uniquely gifted and the fortunate beneficiary of history. It is said that he was born in Latin but died in English because the native language was only just coming into its own for scholarly and creative works during his lifetime. And so, Shakespeare just happened to begin his writing career at a time when the language was fertile ground for sowing a new vocabulary. And nobody ever planted more of those seeds than Shakespeare, which brings us to a recent development that raises some new questions with copyright implications.
Remixing Shakespeare
I happened to be thinking about writing this post when a friend of mine—a Shakespearean actor, scholar, and teacher—began criticizing, via Facebook, the announcement that the Oregon Shakespeare Festival has commissioned fresh “translations” of the complete plays into modern English for contemporary audiences. A Shakespearean institution since 1935, the OSF will apparently continue to produce the plays in the author’s own words while also directing the publication of these modernized works, an initiative funded by tech entrepreneur David Hitz.
Clearly, there are no copyrights to prevent what many are calling a wasted investment in dumbing down these classic works; and critics have been quick to pounce on this initiative by an otherwise respected organization. And while there may be no rights barrier in this case, it seems like a pretty good reason to wish there were because it is a rather misguided application of remix that, while it may not overwrite the original works, does create something that is neither Shakespeare nor technically a new work. Writes James Shapiro for The New York Times, “I’ve had a chance to look over a prototype translation of Timon of Athens that the Oregon Shakespeare Festival has been sharing at workshops and readings for the past five years. While the work of an accomplished playwright, it is a hodgepodge, neither Elizabethan nor contemporary, and makes for dismal reading.” One might call it Shakespeareish, as exemplified in this snippet of translation by playwright Kenneth Cavender, cited ‘from Oregon Public Broadcasting, to which Shapiro refers:
Shakespeare: Slaves and fools/Pluck the grave wrinkled senate from the bench/And minister in their steads.
Cavender: Servants/And clowns, kick the grizzled old senators/Out of their office and legislate in their place …
One need not be a literary scholar to read those lines and hear and feel what is lost in translation. In fact, it really is quite hard—not to mention presumptuous—to try to improve on the sound, imagery, metaphor, emotion, and rhythm all neatly packed into “Pluck the grave wrinkled senate from the bench.” Say the words grizzled old out loud; it’s a hard interval to not mumble. Plus, it seems to me that the word grizzled is more an archaism than either grave or wrinkled. And while it may be true that, as Bryson puts it, “Nearly every play has at least one or two lines that defeat interpretation,” meaning is rarely lost for long when Shakespeare is performed by an actor who knows what he’s doing. I suppose Lay on, Macduff! may technically translate into modern speak as Come at me, Bro! And although this translation would at least be rhythmically identical, any good actor can say the former and make the audience understand that it means the latter.
To assume that this in not true is to ignore one of the most primal capabilities we possess as humans, which is to understand and use language through sound and context, long before we begin formal learning. Even an adult who moves to a foreign country can eventually achieve a measure of fluency in the new language without training, and a child will typically do even better. The problem with not understanding Shakespeare is often not a lack of sophistication on the part of the listener, but a natural resistance to listen as a child, to let the music speak in ways that don’t have to be literal to make clear meaning. Shakespeare’s poetry conveys emotion in the same indescribable way that an aria like Puccini’s Nessun Dorma can make a listener weep, who has no idea what’s being conveyed in the song. Change the music, and you have nothing but a bit of melodrama, which is also true of most of Shakespeare’s plays without Shakespeare. This is why there are endless meaningful ways to produce staged or filmed performances of Shakespeare, but why the language is what should never be altered.
A more worthy example, I think, of a recent building upon Shakespeare is the commissioning by Hogarth publishers of thirty-six new novels, each based on one of the original plays. As author Jeanette Winterson, who has written a modern version of A Winter’s Tale called The Gap of Time, stated on NPR last weekend, “Shakespeare never invented a plot… so he’d think this is exactly the right thing to do with the text.” Though not technically accurate about never inventing a plot, I think she’s generally right in spirit. But in a copyright context, the truth is that an author may come awfully close to a retelling of this nature without infringement, even if Shakespeare were alive today and had copyrights covering his plays. This is thanks to the idea/expression dichotomy in copyright, which could certainly stop OSF and Mr. Hitz from wreaking havoc with Shakespeare’s expression, but it gives considerable latitude to Ms. Winterson’s own expression of the same ideas conveyed in A Winter’s Tale. If this dichotomy were not a productive feautre of copyright, Hollywood would have produced about three action movies at this point.
Naturally, with Shakespeare long gone and his works in the public domain, all parties are free to do as they wish with the plays—just as Bill Bryson will tell us so many have done with The Bard’s incomplete biography. But I stand by the assertion that Shakespeare is not a particularly useful reference for a discussion about 21st century copyright; and in Part II of this essay, I’ll try to make a similar argument about Van Gogh.