How copyright law promotes bad behavior in the world of classical music

This post is slightly adapted from an edition of my newsletter, Tone Prose. Subscribe for more ranting and raving!

I’ve got a concert coming up on April 6, 2024 which will feature the premiere of my new opera-oratorio Cassandra, but the program is equally exciting because it will bring me once again into collaboration with the great young pianist Joseph Vaz. Joey’s going to play Rhapsody in Blue, and having received the performance materials for this work, I’m struck by outrage, and I wish to make it known!

The publisher of Rhapsody in Blue, European-American Music, has abused its copyright privileges to offer a substandard product to interpreters of this work, and thus made the correct execution and performance of Gershwin’s music much more challenging than it should be. And while I (Will) am happy to name and shame EAM, they are simply representative of the industry-wide malfeasance. The real problem though, is the law itself.

What is Copyright?

Essentially, a copyright is a monopoly on a piece of intellectual property, such as a book, movie, recording, or, in the present case, a piece of music.

Now I don’t think you have to be the most rapacious libertarian capitalist in the world to reach the conclusion that monopolies are bad. But you don’t have to be a pinko commie tool to think that a limited monopoly granted to an artist might be good. After all, if you create an original work, shouldn’t you get some period of exclusivity in which to exploit your creation?

The first copyright law in the United States, the Copyright Act of 1790, did just that: it gave authors exclusivity on their works for a period of 14 years with an optional 14 year extension. That, I will grant, is a reasonable way of doing things. Of course, if you create a successful bit of IP, you’ll want to exploit it for as long as possible, so as corporations came on the scene and lobbyists started doing their dirty work, the original copyright provisions got distended to grossly disproportionate forms, culminating in the famous “Sonny Bono” Act of 1998. Cui bono? Sonny!

[A brief aside: don’t let Sonny Bono’s cameo on The Golden Girls fool you — he was one bad hombre. Aside from his rotten-to-the-core copyright extension act designed to protect Disney’s copyright on Mickey Mouse, he was also a raging NIMBY exclusionist zoning champion as mayor of Palm Springs, and gave Newt Gingrich PR advice.]

The Baroque State of U.S. Copyright Law

In the US, we are currently operating under a dual copyright regime:

1. For works created prior to 1978, the maximum copyright duration is 95 years from the date of publication, or 120 years from the date of creation, whichever is shorter.
2. For works created in or after 1978, the maximum copyright duration is “life of the author” + 70 years.

As to the question of Rhapsody in Blue, attentive readers of Listener Laurie’s comment will have noted that 2024 is the centennial of this great masterpiece of symphonic jazz. So, you might ask yourself, shouldn’t the music be in the public domain? Can’t you just download the parts from the Internet Music Score Library Project? Why does a publisher have to be involved at all?

Enter Ferde Grofé

First thing first: the original score of Rhapsody in Blue *is* in the public domain, and you *can* download it from imslp. The problem is, the original version of Rhapsody in Blue isn’t the version that anyone actually plays.

Well, it’s not *no one* who plays it — in fact, there’s a very cool recording of the original version, scored for Paul Whiteman’s dance band in 1924, performed by George Gershwin himself on a piano roll, with MTT conducting. (The tempi are nuts.) But Gershwin didn’t *orchestrate* the Rhapsody. That job was left to American composer Ferde Grofé (of “On the Trail” fame). Grofé revised and expanded this version in 1926, but it wasn’t until 1942 that he scored it for a normally-constituted symphony orchestra, and that’s now the version that “everyone” plays.

Material Interests

This 1942 version of Rhapsody in Blue remains under copyright until 2038. Which means that the publisher, European-American Music, retains a monopoly on the performing materials for another 14 years.

As we all know, the problem with a monopoly is that the monopolizer has no incentive to provide their customer with a decent product or service, and that’s exactly the problem here. First off, I placed Harmonia’s rental order for these materials back in May of 2023. I signed a contract that stated exactly when the sheet music was to arrive. That date came and went, and when I contacted EAM, it turned out they had lost track of the order.

Then things got worse: EAM sent me a freshly printed set of parts. These parts were engraved in 1942 using 1942 technology and 1942 Broadway notational conventions. When you first glance at the music on the page, it doesn’t look too shabby. But take a closer look:

Notice, for example, that after the first line of music, the clef is never re-printed, and neither is the key signature. That’s very poor indeed. The problems don’t stop there though: these parts were written so that the piece could be performed with any hackneyed, ill-constituted civic band, and so the parts are laden with cues to such an extent that they are almost impossible to read. This tendency reaches its ne plus ultra in the first violin part, which is clearly designed as a quasi conductor’s score for concertmasters who are also the leaders of their bands.

Errata

And now for the pièce de résistance: EAM doesn’t just sent the parts, they also send a printout of the 30-page errata list of corrections that need to be marked into all the parts.

Just think about this for a second: the parts were engraved in 1942. This errata list was compiled in 1990. That means that the publisher has had 34 years during which they could have re-engraved the piece so as to incorporate all these corrections.

But why would they? That might cost… oh a few thousand bucks I guess? It’s so much easier to make the renters of this material do the work themselves (as I did.) Who are the renters going to complain to? What competitor are they going to turn to? There is none — that’s the whole point of a monopoly!

Bad Actors, Bad Incentives

This whole thing reminds me of the problem with drivers.

Bad drivers should certainly be held to account for speeding and running stop signs. It’s antisocial behavior that can easily get people hurt or killed. But the real criminals are the transportation engineers and urban planners who have designed the road infrastructure that encourages speeding. The real criminals are the lobbyists who have been working on behalf of the auto manufacturers for a century to ensure that America is designed for car dependence. The real criminals are the lawmakers and politicians who have created a permissive legal structure where killing someone with a private automobile isn’t even considered a case of criminal conduct.

Preaching, Practicing

I’d be a fool if I didn’t mention that I, as a publisher of my own music, try to do everything that EAM doesn’t. First off, for the most part, I sell rather than rent. People can buy my music directly from this web site, print out their own copies (in whatever numbers they like) and perform it to their heart’s content. I also try very hard to make sure that the editions offered on this site are free from mistakes (though I am convinced it is a metaphysical impossibility to get them all.)

Well, not quite an hour, but pretty close.

First up, Clarinet Quintet, op. 55, a piece that I wrote as a birthday gift for my college buddy Jeremy. It was commissioned by his siblings for his fortieth birthday. The birthday gift was the first movement. The second, third, and fourth movements were gravy because I wanted to make it into a full work. (Much the same thing happened with my trio for horn, viola, and piano.)

What was fun about this project was that I had the first movement premiered (with Jeremy in the audience) in Seattle by some friends over the summer. Hearing the first movement clarified for me what I wanted to do with the rest of the piece, and the latter movements were composed very quickly.

The demo recording was made in Portland with musicians from the Oregon Symphony, most notably their principal clarinetist, James Shields. It was a very fun day featuring a huge assortment of baked goods from Shoofly Vegan Bakery. God I miss Portland’s vegan food scene. Seattle doesn’t hold a candle.

Next up, 11 Bagatelles, op. 56 for solo piano. I also composed these in 2023, sporadically during the months of April through July (between writing the first movement of the Clarinet Quintet and the later movements.) They were written for my great piano muse Joseph Vaz.

Joey started agitating for more piano music in the lead-up to the highly successful New York premiere of the piano sonata I wrote for him. I thought he was crazy to ask for more. I don’t think of myself as a person who has facility writing for the piano, and he’s given me all sorts of guff about not writing “pianistically.” And yet, he kept asking, so I kept writing. (He’s asked for even more!!)

Joseph recorded these tracks in New York at the Manhattan School of Music. It was a great weekend; I came to town not only for the recording, but also to see Here We Are, the new Sondheim show. The night after the recording I went and screamed my heart out at Uncle Charlie’s with my friend Tim, as I am wont to do.

Last up is an older work, or, shall we say, a piece that has been in development for several years now, my Suite for Solo Cello, op. 36. It’s a little embarrassing to admit that, when I first wrote this, large chunks of it were extremely difficult, maybe unplayable; I should have had a better sense of the cello’s capabilities given my heritage as a violist.

I’d been trying to interest cellists in this piece for a while, but I think they maintained a polite distance because of the challenges. What I really needed was a cellist to workshop the piece with me, and my friend Ryan Farris finally stepped up to the plate this past summer.

We worked on the piece over a the course of a few months, making all sorts of adjustments and re-writes and recorded it in August. I give Ryan all the thanks and credit in the world for pulling off what he did, but I’m still planning to make an alternate arrangement for two cellos. I think it will be a more successful work.

I have to admit though that I love hearing the struggle of the piece in its current incarnation. It’s craggy and austere, and part of me thinks I should just let it exist as the stunted, gnarled oak that it is currently.

A post-mortem on Stephen Sondheim’s posthumous production

I went to New York this past weekend to see the world premiere of Here We Are, the musical that Stephen Sondheim was working on at the time of his death in November, 2021. If he’d only been alive to complete it, it would have been wonderful. But he didn’t, so what we have is an incomplete masterpiece.

The existence of a masterpiece left incomplete at the time of its author’s death compels a question upon the people left responsible for the work: what’s the “moral” way forward? Do you let the public hear it in its incompletion? Do you guard it? Do you destroy it? How do you do the right thing?

Before I get into the solution proffered by Sondheim’s estate and his co-creators — and my opinion thereof — let’s take a brief diversion into musical history.

The Classics

The two most famous incomplete works in the classical canon are Mozart’s Requiem and Schubert’s “Unfinished” Symphony. 

In the case of the Mozart, they did the wrong thing: the widow Constanze brought in two of her late husband’s colleagues to comb through his remaining sketches and bring the work to completion. Franz Xaver Süssmayr did the lion’s share of the work and wrote some of his own original music to fill in gaps (including complete movements) where no Mozart sketches existed.

This collaborative version of the piece was accepted into the repertoire early on, and it now has a performing tradition of well over two hundred years, so most folks have decided to be okay with it (including me.) But in recent years, musicologists have come to think that they know better than musicians who actually interacted with Mozart while he was alive, and it seems that new completions are cropping up with increasing regularity. This is doing even wronger things.

In the case of Schubert’s B minor symphony, the unfinishedness was leveraged as a selling point (doubtless due in part to the romanticized history of Mozart’s Requiem) and even though Schubert left behind a third movement in short score (and even about a hundred measures in full score) this movement has never caught wind, though it has been completed by scholars. The completion has occasionally been performed and it has been recorded, so you can listen to it right now if you’re interested. This is doing the right thing: the greater public can hear what Schubert actually wrote, and the cognoscenti can listen to a realization of what Schubert might have written, understanding the context full well.

The Stage

Opera offers more gray areas than purely instrumental music, because a composer generally composes the music of an opera to a fully-formed pre-existing libretto. So if the music of the opera is close enough to the finish line, it can be possible — and justified — to finish the piece by bringing the composer’s work to its logical conclusion using sketches and grafting on music from earlier in the show (particularly in music dramas that use leitmotivs) as was the case with Puccini’s Turandot and Berg’s Lulu (one of Sondheim’s favorites.)

I think both of those completions fall into the “do the right thing” category because it would be such a loss not to be able to hear the work that these great artists did write, but you can’t just truncate the story ten minutes before its conclusion. In theory, you could stop the music and have the singers simply speak the rest of the libretto, but this would be jarring to the point of distraction in a thru-composed work and would completely ruin the effect of everything that had come before.

However, this is not the case with musicals, and this brings us to the curious case of Here We Are.

Words and Music

The development history of this show was chronicled quite ably by Frank Rich writing for Vulture. To sum it up, the team (Sondheim, writer David Ives, and director Joe Mantello) had been working on the piece since the early 2010s. Lacking any real production deadlines, Sondheim did what he was wont to do and chipped away at the songs bit by bit, putting it together in a procrastinatory fashion. 

(To give the guy a break: he was in his ninth decade, he was managing several film adaptation projects and stage revivals, and he was — seemingly — responding personally to every random scrap of paper that had ever been addressed to him.)

In September of 2021, Sondheim went on Colbert and announced that the project was picking up steam again, and that he hoped it would be produced in the coming season. Two months later, the day after Thanksgiving, he died.

When Sondheim died, he had written all the songs and scene for the first act, as well as the first three numbers of the second act. That’s a substantial amount of material, enough that a case could be made for going forward with the project. But how to go forward? Should they fill the gaps in the second act with reprises from the first? Should they hire a composer to write ersatz-Sondheim, perhaps based on his sketches? Should they simply end the show with the third song in the second act? What’s doing the right thing — by Sondheim, by the producers, by the audience?

To the immense credit of the producers of Here We Are at the Shed, the solution they have chosen is both the simplest one and the right one to boot: after the third song the second act, the second act of Here We Are becomes a straight play bereft of singing. As you may have read in the Frank Rich piece, the final 45 minutes of the show do include a few instrumental cues based on earlier music, but these cues come fewer and further between as the show continues, such that the greater part of the second act feels notably different than everything that preceded it.

These Are My Takes

I love everything that Sondheim wrote for this show, and I am eternally thankful that the show has been produced so that people like me can have a chance to see and hear it. But there is no question of it being a completed work — it is not. And I say this in spite of what Ives and Mantello told Frank Rich, namely that this “two-thirds sung, one-third spoken” concept was a deliberate dramaturgical decision made by the creative team prior to Sondheim’s death, on the grounds that the material demanded it.

Their claim is that because the characters in the second act find themselves stuck in one place, it doesn’t make sense for them to keep singing. My counterclaim is that this is complete and total bullshit.

I’m not saying that Ives and Mantello are necessarily lying, because it’s possible to believe that they had actually reached such an agreement with Sondheim. The scenario I imagine is this: 

With a production announced and a deadline finally looming, Sondheim was struggling to finish the score (par for the course with him), and his co-authors didn’t have the deftness of touch that Hal Prince and James Lapine had had in compelling him to work. So they created a well-intentioned excuse that would let him off the hook, but also let them move forward with the production, and Sondheim leapt at this “gentleman’s agreement.” 

That may well be what happened, but if it is, I think it’s important to acknowledge the reality that these three creators chose to enter into a shared delusion for practical purposes; this was not a path born of legitimate artistic values.

All you have to do is watch the show to reach the conclusion that it was meant to have been musicalized. There’s nothing in the libretto after that third song of the second act that is so radically different from what preceded it that it begs for dry recitation. In fact, there are several moments that positively cry out for songs, the two most notable being a long conversation between two characters about the meaning of life, and the very end of the show, where you’d expect a big reprise.

Now, assuming that my hypothetical scenario was what actually transpired – that there was a tacit agreement to move the show forward as a musical-play hybrid and thus let Sondheim off the hook – I know in my heart of hearts that Sondheim would have seen this version and written the remaining songs in show. Sondheim had a long history of building the plane at 30,000 feet (not unlike most other musical theater writers) and there are many spectacular examples of him writing his best work on short notice during previews (“Comedy Tonight”, “Send in the Clowns”, “Children and Art”, etc.) I think it’s a good bet that he would have completed the show even more brilliantly than he had begun it. 

So my one and only complaint in this whole saga is that Ives and Mantello are propagating this white lie that the show as it stands is what Sondheim really wanted it to be. It’s just not, and that’s ok. These guys have done the right thing by mounting the show with the songs that Sondheim wrote and letting us see the rest in draft form, thus allowing us to understand the full shape of the piece. But there’s no denying that it goes from color to black and white.

Once again, I’m purely grateful and not at all sorry that I got to experience Here We Are. (Speaking of which, they should have gone with Sondheim’s title, Square One.) I doubt this show is going to get produced many more times. Maybe they’ll take it to London, and perhaps a few regional theaters will mount their own productions, but this work can’t be said to be part of the canon. I’m sure they’ll film it, and I hope they’ll release the video and audio recordings.

Here We Are is a little world unto itself, but it’s a stump. It will always be a stump, but with this production, we can appreciate it for what it is and imagine what it might have been.

UPDATE:

My friends Kyle and Colm and I recorded a conversation for Kyle’s podcast after seeing the show for the second time, and you can listen to that here: