|Publisher:||University of California Press|
|Edition description:||First Edition|
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How Greed and Neglect Have Destroyed Our Cultural Rights
By Bill Ivey
UNIVERSITY OF CALIFORNIA PRESSCopyright © 2008 The Regents of the University of California
All rights reserved.
The right to our heritage—the right to explore music, literature, drama, painting, and dance that define both our nation's collective experience and our individual and community traditions.
"But Jack, it's Monday now; we'll have to get a truck."
"Just come up this week. If we don't move these things now, they'll be gone."
It was summer 1973. The caller was Jack Loetz, a graying senior marketing executive with Decca (now MCA) Records, based in New York City. I was director of the Country Music Foundation in Nashville; Jack was a dedicated fan of early country music, a trustee of the CMF who took special pride in Decca's country legacy, a legacy that boasted classic recordings by Patsy Cline, Bill Monroe, Ernest Tubb, and Loretta Lynn.
He was calling about a record collection at risk. "Decca's pulling out of New York, moving to L.A.," Jack told me, "and I'm not going west with the company, I'm retiring, and I'm worried about the Decca archive of 78s. Why don't you come up here and we'll see if we can get the country material transferred to the Foundation in Nashville."
Loetz's offer was exciting. Under the guidance of record producer Owen Bradley and his predecessor, Paul Cohen, Decca was arguably country music's flagship label, and the early 78 rpm discs cut in New York and Nashville would be an invaluable addition to the CMF's Nashville archive. "The whole company is moving by the end of this month," Jack said. "Get up here quickly. I'll meet you Saturday morning."
So, with Danny Hatcher, a colleague from the CMF library staff, I flew to New York. Jack was gracious; he treated us to lunch at Jack Dempsey's, the legendary beefery and hangout for "Brill Building" songwriters, and he introduced me to Johnny Marx, the reclusive composer of "Rudolph, the Red-Nosed Reindeer," who kept a small office above the restaurant. We acquired a dusty U-Haul truck from a scraggly lower Manhattan gas station that ran a truck-and-trailer rental business on the side and pulled up to MCA's Broadway headquarters building at eight o'clock on Saturday morning. With the glaring orange and silver truck parked conspicuously in a Broadway loading zone (it helped that it was Saturday), we met Loetz at the door and were escorted past the guard, up the elevator to an eleventh-floor room crammed with shelves supporting the not insignificant weight of thousands of ten-inch 78s.
These were Decca's official file copies of commercially released pressings. The MCA executive had personally selected the mint copies of Decca country discs from the corporate archive; he had, by himself, packed more than 2,500 records for shipping. As we made trip after trip up and down the elevator, lugging boxes through the marbled lobby, past the guard, to the truck, which amazingly hadn't been towed away, Jack talked about his fears for the collection. He didn't think management cared about it and was concerned that the discs would be lost, destroyed, or damaged in the corporate move to Los Angeles. His worries were supported by the intuition that as a boutique division of a relocating media giant, Decca's record business might not get the attention it deserved from Hollywood bigwigs interested mostly in movies.
By mid-morning the task was finished, "good-byes" and handshakes concluded, and the truck loaded, ready for the drive back to Nashville. As we worked our way out of Manhattan onto the New Jersey Turnpike, it dawned on me—there'd been no paperwork, no contract; no acknowledgment of a donation. Record company archives had long been mined by insiders who spirited away rare originals for sale to collectors. Jack, for a higher purpose, had simply "appropriated" those rare Decca 78s. By nightfall we were in Virginia, rolling south through the sunset-bathed Shenandoah Valley. Two years later we would sign an agreement making the "donation" legal. But tonight, while Danny drove, I leaned back against the seat and closed my eyes, nearly 3,000 "liberated" Decca file discs secured behind me. We'd stolen a record collection, and I was a certified guerrilla warrior in the battle to save America's cultural heritage.
* * *
America's expressive life is a mirror of our society's evolving values and aspirations. Part of our expressive life is all about autonomy and achievement—art that conveys our individual voices, a marker of independence and personal authority. But expressive life also is a container for heritage—the accumulated creativity of our community and our nation. As historian Kevin Starr observed, "A culture failing to internalize some understanding of its past ... has no focus on the promise and dangers of the present." Bonnie Raitt put it more succinctly: "Music is history you can dance to." And she might just as easily have mentioned movies or old radio programs.
My folklore training, emphasizing continuity and tradition, gave me a special interest in how well Americans are able to stay in touch with music, drama, and images that link us to permanence and place. Once a movie has ended its run at the Roxy or a record or book dropped from lists of hits and best-sellers, each instantly becomes part of the accumulated body of music, drama, dance, comedy, literature, and visual art that constitutes our nation's cultural heritage. And just because some company owns a movie or a record, just because copyright lets it buy, sell, or lock away creative treasures, we don't give up our citizens' right to know that our artistic heritage is secure and preserved for future generations. Americans have an equally compelling right to see and hear art from the past; a right of access sufficient to ensure that young citizens can gain knowledge and understanding by actually hearing and seeing art from earlier eras. As record historian Tim Brooks put it, "Now more than ever before, preservation and access are inextricably linked."
But the average citizen hasn't fully grasped the alarming truth that our creative heritage is mostly owned, lock, stock, and barrel, by multinational companies that aren't even headquartered in the United States. Parents today have no assurance that music, drama, literature, and dance created over the past century will be made available, or that, when we look for it, the heritage we seek will exist. We worry about the impact of foreign ownership in defense and technology, but to this day our arts system has not been subject to the kind of public scrutiny and policy pressure required to ensure preservation of and access to America's cultural mainstream.
We've all seen the image of JFK Jr. saluting bravely as the casket of his slain father is carried from St. Matthew's Cathedral to begin its journey to Arlington National Cemetery; it's one of the most compelling and familiar images of twentieth-century American photography. For millions of Americans this photograph, cropped from a wide shot, conveys both the personal and national dimensions of the Kennedy assassination. The continuing significance of a decades-old photograph only underscores the capacity of a powerful documentary image to transport us over time, connecting us with a shared period of national tragedy and mourning. Images or sounds from the past often display this kind of cultural sturdiness, and photography was the first of several technology-based art forms—including movies, records, and radio programs—that expanded the reach and staying power of America's national experience during the twentieth century. Once created or manufactured, such art products served as containers of America's cultural heritage—a solid bridge of real-world sounds and images linking the present with decades past. In 1963 the JFK Jr. image could send a message all over the world almost instantaneously, but, more important, it preserved a distinct historical moment. What was journalism in 1963 became history only a few years later.
But the photograph is not reproduced here only because it highlights the importance of our nation's expressive heritage—certainly it does. Its presence makes an additional point; regardless of its significance, the photograph appears in this volume because I paid for it. I paid because, in the U.S. cultural system, that image—like most of the art that defines the American experience—is simultaneously cultural heritage and corporate asset. And, in pursuing my determination to incorporate this historic photograph in my argument on behalf of cultural rights, I first had to seek permission from the corporation that owns the image. You might expect that I would have sought permission directly from the photographer whose talent and imagination captured the moment in the first place, but that would have gotten me nowhere. In the world of technology-dependent art forms, the creator generally does not end up controlling, and sometimes even owning, the rights to his or her own work. Instead, anyone who wants to incorporate heritage art into something new must acquire the assent of the corporation where the rights to that creative work reside.
The JFK Jr. image was taken by Stan Stearns, using a telephoto lens with fast black-and-white film, on November 25, 1963. Today the copyright to the photograph has ended up among the millions of images owned by Corbis, the intellectual-property asset company created by Microsoft founder Bill Gates. Long before the photo was taken, Stearns had bargained away any ownership rights to it, for at the time of the Kennedy funeral he was a salaried staff photographer employed by United Press International—the global news service that then competed head-to-head with the Associated Press. Although copyright is designed to provide limited protection for the rights of artists, as a salaried employee, any of Stearns's images created while on assignment were "works for hire"—creative work deemed to belong automatically to whatever entity was paying the artist's salary. "I got $25 for winning 'picture of the month' [at UPI]," Stearns said, "that and my regular paycheck." The copyright to the JFK Jr. photograph first belonged to Stearns's employer, UPI. Rights were transferred to the private Bettmann Archive when it purchased UPI's entire photo collection in 1984; eleven years later Bettmann was absorbed by Corbis.
So the JFK Jr. salute photograph began its life in the sixties as the work-for-hire archival property of the number two international news service. Although Corbis now controls the image, the Stearns picture spent its middle years as part of a vast collection assembled in the Bettmann Archive, historically one of the largest and most well regarded photographic collections in the world. Founder Otto Bettmann was a quirky but not atypical pioneer of for-profit archiving. His collection of prints and negatives, packed in steamer trunks and spirited out of Nazi Germany by Bettmann in 1935, was initially housed in his Manhattan apartment on West 44th Street. By 1938 the collection had only 15,000 images. But the collector's holdings grew steadily; by 1981, when Bettmann sold the archive to the Kraus-Thomson Organization, the transaction included more than 10 million photographs. Following the pattern established by Bettmann, Kraus-Thomson itself then acquired a number of additional, smaller archives, incorporating them under the Bettmann name. When the newly constituted Bettmann Archive absorbed the extensive UPI collection in 1984, the Stearns JFK Jr. shot went along. The additional UPI photographs expanded the total archive to 17 million images.
Today the JFK Jr. photograph can be viewed by any Internet-enabled citizen simply by opening the Corbis Web site. However, if you want to do anything more than look at a two-by-three-inch version of the picture—should you want to reproduce the photograph in a book, for example, or exhibit a print in a museum, or include it in a documentary film—permission must be granted by the corporation that controls the copyright to Stearns's photograph.
Corbis is aware of the unique value of the photograph; it was among the first Bettmann images digitized. Preset rates have been established by Corbis for a number of easily anticipated uses of the shot, and standard licenses can be secured with online efficiency. However, when a project is outside the scope of prepriced uses, the licensing fee becomes a matter of what the traffic will bear. For a company like Corbis, the going price for a particular use is determined by the character of the image itself in relation to the perceived commercial potential of a specific use: People magazine pays more than the Journal of American History, and the JFK Jr. image costs more than, say, a generic photograph of sunglasses. Similar calculations determine rates for licensing old movie clips, music for documentary films, and sound recordings for CD compilations. Executives who control historical cultural assets—often individuals with little understanding of what's in corporate archives—ask themselves, "How indispensable is this item, and how much money might the licensor make?" If the JFK Jr. shot is essential to a project, or, heaven forbid, you've already printed the book or edited the film before securing rights, get ready to fork over significant money.
When an actual historical object—a disc recording, a piece of photographic paper, or a few hundred feet of film stock—has value only because of the image or sound it contains, the item is often referred to as intangible cultural heritage. The concentration of ownership of America's intangible cultural heritage in fewer and fewer hands has followed the trend toward consolidation in our arts industries. Today how much we have to pay for access to the past is determined by a shrinking cohort of corporate players. But the growing global demand for media content has also increased the perceived value of iconic cultural assets. In fact, the business of archives—charging fees for new uses of copyrighted images, films, and recordings—is enhanced only when a collection is sufficiently large to become the obvious "go-to" location for anyone requiring access to sights and sounds from the past.
It should thus come as no surprise that software pioneer Bill Gates was among the first to see that digital imaging and transmission would vastly increase the demand for visual material of all kinds. But Corbis was not initially in the business of acquiring existing archives, photographic or otherwise. Instead, immediately after its formation in 1989, the company set out to obtain the digital licensing rights to works of art in the permanent collections of prominent nonprofit and government-managed museums and archives. Gates was anticipating future opportunities to license artworks to owners of devices like flat-screen TVs. Taking full advantage of his insider's grasp of the commercial potential of content on the electronic frontier, Gates understood that art museums in effect controlled the copyrights to early paintings and photographs in their collections, and he also understood that the fine arts world hadn't yet grasped the import of licensing opportunities that would soon be created by the Internet and the digital revolution. Corbis sought to tie up exclusive rights in the digital domain to art treasures in museum collections.
In its negotiations with a museum community innocent of the dawning Internet age, Corbis was able to secure exclusive rights to a number of important collections for a relative pittance. Early on, London's National Gallery, the Philadelphia Museum of Art, and St. Petersburg's Hermitage licensed their collections to Corbis. But the museum community quickly wised up; within a few years Corbis's ability to obtain bargain-basement digital rights agreements had nearly evaporated. That's when the company refocused on building its own collection.
While Gates had initially envisioned Corbis as the company that would, for example, market digital images of great paintings for home display and had secured rights to museum collections accordingly, that model didn't take hold. As Gates recently observed, "Some of the [Corbis] vision won't be here for another five more years." Shifting to a natural plan B enabled Gates's company to absorb a vast collection of twentieth-century news and lifestyle images. It was to this end Corbis acquired the Bettmann Archive in 1995.
Bettmann, like Corbis, had always been a for-profit operation, charging a range of fees for the use of copyrighted images in books, magazines, television documentaries, and so on. In fact, most of America's twentieth-century cultural heritage—movies, sound recordings, old television and radio shows—gets preserved and disseminated in exactly this way: a company foots the bill for storage, preservation, and retrieval, covering expenses and delivering a bottom-line profit by charging for every use of historical material. Obviously, in radio, TV, and movies, many archives are owned by the companies that created the films or records in the first place. Photo collectors like Otto Bettmann and owners of smaller private archives like Frank Driggs and Michael Ochs rarely paid to have photographs shot but instead purchased existing images, growing their collections over time. These entrepreneurial archivists were passionate about history, and sometimes about specific subjects. Driggs collected jazz images; the much younger Ochs focused on rock 'n' roll. Driggs still maintains his collection in seven tall file cabinets in a Soho basement. In an NPR interview he recalled scouring the alleyways behind New York record company offices in search of discarded photographs: "I noticed a big laundry basket of pictures that were being thrown out either because the artists were no longer under contract or they didn't want to keep the files. So I just raided it; I took everything I could." Early archives were like this—labors of love created by devoted fans of history and art. Today it's business. Corbis and other image archives are big moneymakers, policing copyright-protected revenue streams attached to products created as works for hire or financed by others, so it only makes sense that Frank Driggs put his collection on the market.
Excerpted from Arts, Inc. by Bill Ivey. Copyright © 2008 The Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
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Table of Contents
ContentsThe Cultural Bill of Rights,
3. A Creative Life,
4. America, Art, and the World,
5. Art of Lasting Value,
6. Strong, Responsible Institutions,
7. The Failure of Government,
8. Conclusion: Bridging the Cultural Divide,
What People are Saying About This
"Cogent consideration of the stakes for all involved. . .
Interesting glimpses behind the scenes at the NEA. . . A comprehensive treatment."Pw: Nonfiction (2)
"Ivey is well equipped to lead a fresh discussion about the role of creativity in a healthy democracy."Utne
"Explore(s) and define(s) a co-ordinated vision for art, culture and expression in American life."Times Higher Ed Sup (Thes)
"Reads like a manifest on cultural happiness and quality of life through access to the arts. . . . Recommended."Choice