Do performers have “ethical duties” towards authors? By Mathilde Pavis.

The following comments came to me as I ventured myself outside the legal academic community. For the purpose of the project I went along with Karen Wood and Kate Marsh (my ever so helpful guide in the academic fields of Arts and Drama) to interdisciplinary conferences organised at Manchester Metropolitan University (Creative Arts and Creative Industries: Collaboration in Practice – 21-22 June 2013) and at the Royal Central School of Speech and Drama (Intersections: Colloquium on Performance Research – 16-17 January 2014). I had the pleasure to attend two presentations on the composition and performance of music given by Mine Dogantan Dack (in Manchester) and Alan Taylor (in London).
The paper delivered by Mine Dogantan Dack (1), keynote of the conference, described the experience of musicians performing classical works without being limited by the scores. She explained how vibrant this experience was for the artists and how much more creativity emerged from this practice. Performers were liberated from the tyranny of the musical notation which she described as unhealthy and impossible to satisfy. Her presentation made a great impression on the audience which sided with her (2). If I agreed with her on many points, I was surprised to find myself the only participant having objections to voice against this “free performers!” position. My objections were mainly focused on her key statement which repeatedly asked “who says performers have to follow the scores religiously?”. The lawyer in me could not help herself thinking that, actually, “the law” is requiring performers to respect the scores. Therefore, there is a “someone” or a “something” preventing musicians from interpreting musical works and that “something” is the law, in the form of moral rights.
Moral rights are given to authors in exchange of sharing their work with the society (3). Among these rights can be found the right of integrity. Its aim is, with no surprise, to protect the integrity of the work. The Courts abide by a rather broad definition of “integrity” which can be infringed any time the work is modified or placed in a context its author judges unfit. Would the liberated interpretation of classical works, celebrated by Mine Dogantan Dack, breach the authors’ moral rights over their work? Most certainly if such authors judge the performers’ version unfaithful to the spirit of their work.
Of course, such risks remain marginal when the musical works performed were composed by authors long gone. In such cases, it seems unlikely for legal proceedings to be taken against the performers, however one should not undermine the vigour and passion with which heirs of such artists or trusts in charge of their assets can defend their work. Indeed, in some European countries (4) moral rights do not expire with the death of the author and can be passed on to successors.
Legal details set aside, I was interested in asking whether performers worry at all about moral rights when they decide to re-interpret works. My question was: “During your creative process as a performer, do you ever consider the fact that the law is not on your side, the fact that the law is actually protecting authors from their work to be re-interpreted freely by performers?”. This question triggered a rather heated but not so constructive response: “of course I know the law, but we are in a democracy who is to tell me what I can or can’t do”. No need to say that I was not convinced by this argument. Unfortunately, the exchange did not go any further than this.
Few months later, in London, I had the pleasure to take this discussion further with Alan Taylor (5) on the same issue: do performers feel like they are to be faithful to the author whose work they interpret? My enquiry, here, wonders whether policy-makers introduced a right of integrity which doubled a sense of “ethical duty” (6) or “moral obligation” already existing in arts – music - or not. Is the right of integrity the legal twin of a practice already followed by performers or was it created out of the blue, and subsequently, imposed upon performers?
Alan Taylor clearly explained that performers do not owe such “moral obligation” to stick to the scores or to the wishes of composers. To him, the right of integrity is alien to performers but is also alien to the essence of music. He explained to me how musical works only exist when performed; the performed version of a work is the only version of the work there is. Musical scores became more detailed and authoritative with time, but they remained an incomplete version of the piece which will never replace its performed and lived version. (7)
What I take from this explanation is that performers do not owe any moral or ethical obligation towards the author’s original (written) work because such work does not exist. The performed version is the only (version of) work that exists so how could it be infringing the integrity of a previous version?
I do understand the point made, here, regarding the lived experience of music - which would probably be applicable to other forms of art like choreography. However, I cannot help myself thinking that if free re-interpretation of century-old and worldwide-famous musical pieces is creatively valuable, what about works whose initial version is unknown to the public before the performative re-creation? What if the work of Beethoven or Satie was only discovered by the public via the rap or pop-rock versions made by contemporary artists? Would not our culture suffer some kind of loss? Do we not owe our cultural history or “cultural heritage” (8) to respect authors’ wishes, especially when gone? I would also argue that I enjoy a re-interpretation of a work all the more because I was able to access its “original” version in the first place (or at least a version attempting to respect the author’s intention expressed in the musical scores) (9).
Fortunately for me, Dr Jane Ginsborg (music psychologist) made me feel less of an old-fashioned conservative lawyer, over-protective of our western culture, when she agreed on the importance to preserve and disseminate initial versions of musical works as well as encourage performers’ creativity. I believe there is a fine balance to find in order to both encourage creativity and preserve our cultural heritage.
I wanted to report this debate in this blog because its outcome could directly impact the practice of disabled dancers. In a discipline which so heavily relies on the body (dance), their performance of mainstream works will inevitably modify choreographic works in a similar way musicians do when they choose to ignore the scores. Thus, I wonder...
Is performing a choreographic work with a different body the same as not following the scores of a musical work? Are ‘normative bodies’ elements of the choreographic work in the same way as scores are for musical pieces?
Should disabled dancers disclose their disability to the authors whose work they wish to perform? Do (they feel like) they have to disclose their disability to the author in respect of some kind of ethics or moral obligation between artists? Can the choreographer take his/her approval back once the performance is done and sue disabled performers for their interpretation?

(1) “Why collaborate?: Towards a philosophy and politics of creative collaboration”
(2) Her position is also conveyed in the law by scholars who strongly criticise the enforcement of moral rights and position the notion of “destruction” as essential to creativity. See the position of Amy M. Adler, “Against Moral Rights” (2009) 97 California Law Review 263
(3) Chapter IV Section 77 to 89 of the Copyright Designs and Patent Act 1988
(4) For instance in France, unlike in the UK moral rights are perpetual. See article L121-1 and L121-5 of the French Intellectual Property Code.
(5) Alan Taylor presented a paper titled “Can there be collaboration in the composition of music? (And what is collaboration anyway?)”
(6) Here “ethics” is understood as “moral obligation” and does not refer to any legal definition or specific areas of law.
(7) This conception of the musical work goes against the concept of musical works which exist before the work is performed (in the scores). Andreas Rahmatian, legal scholar also trained in music shares this position and conception of the musical work: “[the scores] are rather hazy pointers towards [the work}, they cannot be regarded as truthful images of it”. See Andreas Rahmatian, Copyright and Creativity The Making of Property Rights in Creative Works, (Edward Elgar editions 2011) 42
(8) On the definition of cultural heritage and the project’s debate on the notion see Pr. Charlotte Waelde’s previous blog entry entitled “Cultural Heritage a legal exploration” dated 31 January 2014.
(9) It has been pointed to me by Allan Taylor that the version of Beethoven’s or Satie’s work that I consider as the “original” one (recorded by performers who are respecting the scores) is already a version which departs from the one played during the lifetime of the composer. This is largely due to the fact that the notation system used by Mozart, Schubert and their peers was not as thorough and accurate as the musical scores we know now, performers were bound to re-create the work to perform it. Recording technologies now allow almost perfect preservation of the intention of the author who can compose and indicate the correct performed version of his work.

comments powered by Disqus