Tag: Shakespeare

Shakespeare would thrive in a world with copyright.

shakespeare

I saw it again the other day. In a sarcastic tweet that flew by. A familiar theme. Without naming names, it said something like this: As if creativity didn’t exist before 1709. There was no Shakespeare.

For one thing, this is the kind of pugnacious statement that I can’t believe ever informs the copyright debate. Because I don’t know anyone who asserts that creativity did not exist before copyright. Creativity existed in pre-homo-sapiens. But so what? That fact is as useful to a discussion about contemporary life as observing that eating predates cooking.  True but ick.

The year 1709 is of course a reference to England’s Statute of Anne, which is identified as the precursor to modern copyright law because that legislation was the first to grant exclusive rights in written works to authors rather than publishers. And if it is sufficient for some to condense four centuries of history since Shakespeare’s death into a single tweet, maybe this reveals something about those who both say and believe unexamined statements that invoke the Bard as exemplary of copyright’s irrelevance. In particular, this line of reasoning makes two fundamental mistakes.  The first is one of overstating the extent to which Shakespeare relied upon borrowing; and the second is one of understating the significance of the idea/expression dichotomy in copyright law, which dictates that ideas may not be copyrighted and only unique expressions may be.

As explained in a previous post, the reason Shakespeare and his contemporaries so often borrowed, or even outright plagiarized, existing work had a great deal to do with the exigencies of producing high-volume, high-speed theater in 16th-century England and little to do with the abilities of the writers themselves to be inventive. Had the Arthur Brooke estate, for instance, owned a copyright on The Tragicall History of Romeus and Juliet, everything we know about Shakespeare’s gifts implies that he had both the talent and the desire to work around this relatively minor creative barrier. Moreover, the result would almost certainly have been a more distinctive play than Romeo & Juliet. After all, Brooke would not have owned the idea of ill-fated lovers, just his own expression of it.

The idea/expression dichotomy is the reason why a large volume of works can share many qualities with one another and still remain distinctive enough to be considered individually “original” and, therefore, separately copyrightable. And in the generalized debate—especially when it’s made tweet-sized—I think people fail to recognize just how subtle the distinctions among works can be in order to render them non-infringing upon one another. Combine this error with a glancing knowledge of Shakespeare, and it’s easy to make The Bard into an unwitting poster child for the importance of borrowing or building upon prior works.

Part of Shakespeare’s genius—as historian Bill Bryson puts it—was to “…take pedestrian pieces of work and endow them with distinction and, very often, greatness.” The manner in which he achieved distinction and occasional greatness was both by invention (e.g. a plot device here, a twist on an idea there) and by his remarkable ability to produce indelible sounds from the fledgling English language. If we were to keep his raw talent intact, remove the political, social, and economic barriers of his time, and replace these instead with only the boundaries of modern copyright, Shakespeare’s ability to draw upon source elements and make them uniquely his own suggests that he would have done quite well in such a regime.  To put that in a contemporary context, if author E.L. James is skilled enough to adapt her Twilight fanfic into the separately copyrightable 50 Shades of Grey, I think it’s fair to say that Shakespeare would be up to a similar task.

To Bryson’s point, we should view Shakespeare as already wrangling with the idea/expression dichotomy by revising existing notions and elements into richer expressions than they had been.  Like any artist, we see him working around the barriers of his own internal aesthetics and sensibilities. And by contrast, the external barriers of copyright are quite minimal to the author, which is why this entire line of criticism doesn’t tend to come from creators and artists themselves. Perhaps more relevant to my initial point, though, is the fact that a great deal of Shakespeare’s often-exaggerated “borrowing” would be consistent with copyright anyway. This would likely be the case with all of the history plays or certainly with plot devices taken from ancients like Plautus, who died in 185 BC.  There’s a lot more to Shakespeare than Romeo & Juliet, and we have far more reason to imagine that he would thrive in a world with copyrights than to assume that he would wither.

It’s just too easy to conjure Shakespeare as a lofty trope of literary brilliance and then assume that the works as we know them are now fossilized in the only form they could ever have taken. No one who has ever created anything would make this mistake because the end product is almost never the only way the process could have gone. If Shakespeare had both copyright and free speech, it is more rational to expect that he would have been even more prolific and profound than it is to imagine that he would have produced less—or nothing. As it stands, he was modestly prolific by both 16th-century and contemporary measures. Sam Shepard, Tennessee Williams, Neil Simon, Eugene O’Neill, and Arthur Miller—to name a few—all wrote more than Shakespeare and all certainly worked in a world with copyrights. So, of course creativity itself predates copyright law; but invoking Shakespeare — though it may seem counter-intuitive — only suggests that creativity was weaker without it.

Leave Shakespeare & Van Gogh Alone – Part II

In Part I of this essay, I argued that although Shakespeare’s plays do comprise myriad precedent works, his biography and manner of production provide little guidance for a conversation about the role of modern copyright as it relates to derivative works and the need to build upon existing works. And when it comes to skepticism about the incentive role of copyright, we encounter a lot of assumptions about the motivations of artists, including an insistence that they will always create no matter what their circumstances may be. This is often true to an extent, but in the context of mass, technological exploitation of works circumventing copyrights, the sentiment is entirely parasitical. Then, as if to aggravate the callousness of this notion, the copyright skeptic may cite an artist like Van Gogh as an archetype because he clearly produced masterworks despite a life of scorn, indigence, and madness. But as with Shakespeare, Van Gogh is too far removed from the contemporary market to be a useful reference in a conversation about the future of copyright. I think we should leave poor Vincent alone; he’s been through enough.

Upon his death by suicide on July 27, 1890, the 37-year-old Vincent Van Gogh left to the world nearly 900 paintings, over 1,000 drawings, some 150 water colors, and over 100 sketches in the numerous letters he wrote, most famously to his art-dealer brother Theo. This is an impressive body of work considering the fact that all of it was produced in barely a decade, and that the period between Van Gogh’s first masterwork—“The Potato Eaters”—and his death is less than half that time. In fact, the paintings I imagine most of us think of when we hear the name Van Gogh were all made in just the last two years of his life, with a reported 70 of these canvasses made in just the last few weeks. At the risk of a corny reference to his most famous painting, Van Gogh’s productive period as an artist really was a shooting star moment in history.

In many ways, of course, Van Gogh is like every artist inasmuch as his passion to express emotion transcends mere technical facility. Among the reasons I believe he is so often cited as extraordinary, though, is that perhaps no other artist reveals quite so dramatic a contrast between a tragically lonely existence and such overwhelming posthumous fame and popularity. But this commonly understood narrative should not really serve as any indication of the mechanisms that drive most creators; Van Gogh is too extreme in more ways than one, and society should not hope or expect to foster many artists quite like him.  Suffice to say that, based on his own writings, what drove Vincent as an artist was certainly a combination of forces—spiritual, delusional, and pragmatic—and there should be little doubt that, in his more lucid states, he desperately hoped his work would earn him a living.

1881 was the year Vincent truly began to take art seriously, and his letters to Theo from that year include multiple references to his expectation that he will very soon be an able enough draughtsman to begin earning his own income rather than continue to sustain himself on the money constantly borrowed from Theo, family elders, and myriad friends and colleagues. These passages can be cringingly uncomfortable to read because they provide a glimpse of Vincent as a sometimes arrogant, black-sheep, dilettante, not only sustaining himself by the good graces of others, but also surprisingly capable of biting the hands that are feeding him. The eldest son of a tightly knit family, Vincent’s occasionally naive sense about interpersonal relationships is exemplified when he tells Theo that he has fallen in love with their cousin Kee Vos.  Without diagnosing Vincent—as many have have presumed to do—his own writing about this unrequited love reveals that in his mind Kee’s rejection of him—and the family’s disapproval of the match—is evidence of a protracted courtship. His naïveté is heartbreaking, but it is clear that Vincent does hope his newly-found pursuit of art will lead to both financial stability and social status when he writes, “The elder persons will change their minds about this matter not when Kee changes her mind but when I become someone who earns at least 1,000 guilders a year.”

One may certainly muck about in the abundance of published speculation regarding Vincent’s mental condition as it relates to his incentive to paint, but I would argue that the more one examines the nature of what appears to have been a conspiracy of multiple neuroses, the less appropriate he becomes as an example of artists’ motivations in general. Certainly, Van Gogh is is not the only creator—or inventor for that matter—to manifest the genius/madness dichotomy; and even the most lucid, work-a-day, creator is apt to feel, or be made to feel, quite irrational at times for the pursuit of a distinctive vision. Nevertheless, Vincent seems to have walked a particularly narrow strand of gossamer between brilliantly innovative and functionally insane that most creative artists are fortunate not to experience.

To paint strong feelings solely by working directly from nature – glowing with passion – infernal fire of the soul – is incredibly taxing for the nervous system. Vincent is an example of that (myself partially so). – Edvard Munch

Regardless of the particular demons and angels that drove Van Gogh—or drive any artist—the incentive to create and distribute inherent in the foundation of the intellectual property right, especially in a market like the United States, does not reasonably anticipate such rare creatures, but rather the considerably larger population of creators, who lead comparatively ordered lives and for whom artistic or scholarly work is very much a job. And as if to punctuate just how uniquely unhelpful Van Gogh is in this regard, he happened to take his own life just at the moment when his work might have been about to pay off.

It is a frequently noted irony that only one of Vincent’s paintings ever sold during his lifetime, but it may not be widely recognized how achingly close this first sale might have been to a real break in his career.  “The Red Vineyard” was purchased at an exhibition in Brussels for the price of 400 francs by a Belgian woman named Anna Boch, who was herself an impressionist painter as well as—in collaboration with her brother Eugene—an art collector and a patron of artists. Of course, it was Theo who had begun to represent Vincent’s paintings by this time, and on March 6, 1890, he recorded the receipt of the money from the Bochs for the sale of “The Red Vineyard.” This was less than five months before Vincent would inexplicably shoot himself during an otherwise typical outing to paint a landscape in Auvers-sur-Oise.*

Two months after Vincent’s suicide, Theo himself died of syphilis, leaving his wife Johanna alone with their baby son (Vincent), but also in possession of nearly all of her brother-in-law’s works. Driven by both passion and necessity, Johanna taught herself to become an effective and shrewd art dealer, and it is she whom we have to thank for bringing Vincent’s work to the attention of the world.  According to Wouter van der Veen, co-author of a book about Johanna and this period, it would be a mistake to think that Johanna was starting from a place of total obscurity with regard to Vincent’s works.

By 1890, Van Gogh’s paintings had already gained the admiration of a number of close colleagues and fellow artists and were just beginning to attract some wider attention. Van der Veen reminds us that some of Vincent’s most famous canvasses were “not even dry” when the artist died and that it was normal—when information moved at 19th century speed—for it to take several years for an artist to become known, let alone valued in the market.  So, given the fact that nearly all of Vincent’s best works were painted in his final two years, any narrative that his incentive to work never anticipated a professional status really falls apart under examination of both his own writings and the circumstances of his time and place.

Naturally, it is easy to get lost in the intrigue of Vincent’s psychology and its many dramatic—even violent—manifestations, both in life and in paint, and forget that at least some part of this complex, irascible man wanted very badly to make art his career. It would be an understatement to say there were myriad conflicting, complex, and even dark forces that drove Van Gogh to paint and to see the world the way he did, but the rational side of him did not lack for hope of some commercial and social acceptance, and in this one regard at least, he is no different from nearly all artists.  Beyond that, any conversation about creators working in the 21st century and the role of intellectual property rights in their works should probably never invoke figures so extreme and so remote from our times, let alone presume to really understand them.

*Although investigation since 2011 raises interesting questions as to whether Van Gogh was in fact murdered, that begs a whole conversation entirely separate from the focus of this essay. Whether by his own hand or not, his life was cut short just about two years into his prolific period as a painter.

Leave Shakespeare & Van Gogh Alone – Part I

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.