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Jessica Duchen
Monday 20th September 2010
If only this was unbelievable...

The arts world, including music and book publishing, has been so full of people behaving badly, stupidly or arrogantly for so long that after a couple of decades observing and sometimes experiencing it, I'd thought nothing more could shock me. Wrong. Today The Arts Desk carries news from the Royal Opera House that had me spluttering with such outrage that it's taken me several hours to string a sentence together.

Natalie Wheen, who has seen the relevant documents, goes into the issue in depth - follow the link above. But in short, here's what's happening: 

"The ROH is demanding that its entire stable of creative talent – directors, set and costume designers, lighting and special effects designers,  even composers, choreographers and librettists -  sign over to the Royal Opera House all their copyright in their work there - in perpetuity."

This comes hot on the heels of Norman Lebrecht's report last week that certain record companies are allegedly demanding that their artists hand over a percentage of their fees for their other, non-recorded work, the justification apparently being the prestige of the company, in the reflected glory of which the artist is supposed to bask, and say thank you for the privilege of it.

One problem is that it's not new: for decades some publishers have demanded that authors 'waive their moral rights' in a book; and a composer in the know tells me that this has become the norm in writing music for TV. And many people cheerfully pirate music on a daily basis. Once people start to get away with something, the others start to jump on the bandwagon.

But where exactly do opera houses think they'd be without their operas? Where would a record company be without its artists? Where is a publisher without authors to write books? TV would be nowhere without its music. Wherefore this unbelievable, stonking, corporate arrogance? 

Most companies that have the power to wreck musicians' livelihoods are run by people who can neither play a note nor compose so much as an eight-bar melody. Most publishers cannot put together the outline of a novel or imagine how to research a biography. Most lawyers cannot spin 32 fouettes or choreograph even 30 seconds of a great score by Tchaikovsky or Prokofiev. Why should they believe that for the privilege of association with their hallowed company names, anyone who can do any of the above should hand over their rights in their creativity? Is it jealousy? I doubt it. Rather, it's contempt. It's their assumption that anybody stupid enough to follow a creative pursuit will also be stupid enough to agree to their demands. But the artists, composers and writers are not total chumps: they are pushed into a corner where they (and their agents, who depend on commission) have no choice.

Wonder how it feels? I know. And I can promise you that to sit back and watch someone walking off with your work scot-free is like watching someone steal your reflection. You look in a mirror and you see nothing - while they troll off to the shops with their latest trophy, which is half your actual being, never mind your breakfast, under their arm.

The sense of entitlement, the evil of the arrogance involved, is beyond simple moral degeneration. I don't know where it comes from: perhaps it's the logical end-point of Thatcherism, or perhaps of the school bully - who usually picks on the arty kids, remember. And I don't know what can be done to stop this pernicious development, other than a rallying call that can result in a concerted resistance to it. Just say no. 

If artists and audience apply their awareness to resisting by boycott - a word we've overused recently, but sadly out of necessity - then the stance may help to force the issue. Artists may find another way to function, because we have always had to adapt and we always will. If we prevail, the set-ups that seek to rob us will hopefully find themselves hoist on their own petards, since no artist will touch them and their audience, which they do need, will turn elsewhere.

I've encountered several occasions when individuals faced with muggers have refused to cooperate. In France, I met an air steward who had faced down a mugger in Brazil: "Go on, kill me - do you want to do time for murder?" It was a huge gamble, but the guy, who had a knife, cut his losses instead and ran away. My husband was once mugged at knifepoint at a cash point in, of all places, West Hampstead. After handing over the 50 quid, he realised that the chap was smaller than him and gave chase, yelling that he wouldn't give up until the robber threw down the money. It worked. It does often look as if muggers operate from a position of such arrogance that resistance wrong-foots them, so little do they expect it. They don't know what to do - and they run off, like the school bullies they really are.

I'm no fan of the Pope, but in this case perhaps he's right: we need a dose of moral education. It certainly wouldn't go amiss in the upper echelons of the arts business. Because what artists have in their work is, in legal terminology, moral rights. If a whole zeitgeist lacks any semblance of morals, it's those who have them, and have rights determined by them, who will be trampled. And in their arrogance, those people who are shamelessly on the make have no idea how to behave. They are robbing the very people they should be supporting. Shame on them.

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October 6th, 2010
1:10 PM
Oh, here we go again. "Creative" people complaining about their terribly hard lives. With a degree in Fine Art (ie FA) and thirty years in the 'creative industries', I'm bored of hearing the same old toss. Isn't it time we laid the myth that 'creative' people are 'amazingly creative'. Most of what we do is recycle old ideas without giving credit. You'd think no-one had ever heard of post-modernism. Oh sorry, I forgot, post-modernism means always being able to criticize everyone else without having your own position held up to the same analysis, cos what you do is 'art', it's just too 'special' (non artists please genuflect at this point) 'Creative' people expect the rest of the world to look up at them because they're 'creative', when they probably aren't. They're just lucky to have found an employment that the chattering classes thinks is important. 'Creatives' have the gall to assume that nobody else in the world is 'creative'. Have you ever sat at a dinner party where some smug prat says 'Oh, I'm creative'? Has it ever crossed your mind that what they're really telling you is 'you chumps aren't creative, not like, lovely, me'? F******* Cheek! (I was a special needs teacher for over 10 years. Nobody I worked with was ever called 'creative', but even the colleagues I loathed were a hundred times more creative than any self important 'creative' I've ever met - and I've worked with hundreds of them). 'Creatives' get the joy of doing something they adore. But for every one of them in 'creative' employment, there's a hundred equally talented ones working behind bars, waiting for an opportunity that will never come (and probably won't, because Daddy isn't rich enough to support them for ten years, whilst they're learning their trade). And don't get me started on the idea that talent is the sole criteria for great art. Have you ever looked at the demographics for the average art school? It makes Oxbridge look like a hot bed of socialism. Students at art schools always had to sign away their creative rights to their work before being accepted on a course. The Schools never used their rights, it was just a way of avoiding claims against the college for damage to artworks. I suspect that something like this may be happening here. As a good trade unionist I deplore that any employer should try to get away with treating it's workers in an underhand fashion. And, of course, these workers should resist any undesired changes in their contracts. But, honestly, if you're a plumber or a carpenter (both highly creative jobs in my book) you can't claim rights to the central heating system you put in last week, or the wonderful fitted cupboards. They belong to the person who paid. If 'creatives' had the same attitude to their craft more 'ordinary' (ie sadly uncreative) people might actually like them a bit better....

September 30th, 2010
9:09 AM
OK, quickly written but hope it makes sense. To be fair to the Royal Opera House (ROH) rights grabs are widespread across publishing as well as here. An employee has no overheads as regards an office. They attend an office (or now may work at home but then have overheads paid for) and are paid a salary and, if the firm is large enough, get an occupational pension and other benefits. A freelance has plenty of overheads and far fewer or no benefits. The very nature of a freelance means that he or she depends on rights for his or her livelihood throughout their live and their retirement/pension, if they ever retire. This is why Charles Dickens, for example, among others, fought to get international copyright for individual writers. Whether or not, copyright has a limited span is immaterial. Copyright and rights are about the freelance earning a living. And maybe not only the freelance. The freelance may have an agent as well who also cannot exist unless his or her client earns. While noone wants a "us and them" situation, ome might say these bodies and the employees within them who approve these rights' grabs in their desperation to protect their own salaries and benefits have lost sight of the fact they would be nothing without the creatives. They would have no material. And as someone within the ROH has commented about a rights grab which many say is part of the rush for broadcast rights, it seems that the fact opera is meant for live performance has also been lost sight of. If the bodies want to have ownership, they can make the creatives an offer – offer them jobs with salaries and pensions (which they probably wouldn’t want to do because using freelances avoids this) or pay them substantially for the rights in perpetuity by estimating how much the freelances could earn if they kept the rights. After all, we continually hear how we need incentives in the economy to increase competition. But isn’t this attempted nationalization of creatives by employees of publicly funded bodies while the employees continue to get salaries and occupational pension while cutting the income stream of freelances? Many would also point out that there is a difference between a corporate obtaining and applying copyright and individuals and to make out there is a level playing field between the two is spurious. Pleeeease, don’t treat creatives as if they were all still students and can use the resources of a college or university doing stuff in their spare time funding the “real” workers’ (staff) salaries and occupational pensions. And then as we know, even students have now been forced to run up huge debts to get a tertiary education. Creative commons is all very well and laudable but people who freelance work in the arts in order to earn a living and deserve proper remuneration just as much as staffers.

Tim Rutherford-Johnson
September 27th, 2010
7:09 PM
Jessica mentions moral rights in the context of an argument about economic rights, but just for the sake of clarity I have to note that they are not the same thing, even though they are both part of the copyright of a work. Moral rights have nothing to do with income, fees, piracy, etc., but are to do with the author's right to be named as the author, and to retain certain control over the use of her work. Moreover, although an author may choose to waive her moral rights, they cannot (unlike economic rights) be assigned to another party. However, exceptions do exist, such as: -- where ownership of a work originally vested in an author's employer This may be the situation Paul Muller describes wrt to his employer. It seems that in an urge to greater control, the ROH may be asking to contract its designers etc. as employees, rather than on more flexible terms. There has been some confusion over the exact interpretation of the ROH's request, so this sort of thing needs clarification before too many assumptions are made.

September 27th, 2010
2:09 AM
This is a very nice piece, Jessica! Not having the ROH as a regular part of my life (as I'm an American stateside), I find the news of this to be almost comically timed with the issue the ROH folks had with a fellow blogger's images. In any case, there are lots of ways in which I agree with you. Though in principal I understand very much the longer Anon's position. I think a key to solving the riddle is to educate audiences (as they're the ones who really pay for this stuff). If we, as artists, can convince our consumers of the value of our work, and the superior value of our role (vis-a-vis say the publisher) in the delivery of the art they consume, they then have the opportunity to make consumption decisions in our favor. If we continue to let them see our art as fluff or mere luxury, then the attitude will persist (and not only in record label board rooms) that, "anybody stupid enough to follow a creative pursuit will also be stupid enough to agree to their demands," and worse they'll continue to think that we're not really working and contributing, but rather just playing. In this matter, I get the sense that the ROH et al. are actually just making poor business decisions that will ultimately be changed for business reasons. But for me there's an entirely different angle on this story that I want to explore further. It's about the notion of intellectual property rights being important at all. I sense an opportunity in the signing over of these rights entirely to the public, rather than treating them as commodities to be bartered with. I plan to get into this soon on my own site. Thank for the very nice piece. I look forward to reading more from you. Grant Charles Chaput

Paul Muller
September 22nd, 2010
8:09 PM
Just had a look at the Intellectual Property Agreement I signed with my employer - a small engineering company. Anything I create or invent that relates to the business of my employer becomes their intellectual property. It's a pretty standard agreement for manufacturing companies and this must be where the ROH is going. The reason these sorts of agreements are issued is because there is a greater supply over the demand for these kinds of services and products - and capitalism, being what it is, will exploit that imbalence. A boycott would seem the best tactic - maybe a dark opera house will eventually cost too much.

Jessica Duchen
September 22nd, 2010
10:09 AM
A reply to the longer of the two 'Anon's - you assume that creatives are paid properly for their work and what you say would be fine if they were. But in the vast majority of cases, except for the top 3 per cent or so, they aren't. It's a completely hand-to-mouth existence and in many cases you'd earn more £s pouring coffee at Victoria Station. That's the whole problem. To the other 'Anon' - an opera house may receive some funding from the state, but it's not the same as the state. It's an entity, a company, and it is greedy. That'll be capitalism, then... It's interesting that even the finest minds in business sometimes have not the first clue of how "creatives"'lives function. I'm not saying anyone owes us a living, because they don't. But we are obliged to look after ourselves. That means kicking up a heck of a fuss when people try to take away the small amount of income we do have, and/or insist that being "creative" is some kind of privilege that does not deserve to be paid a decent fee. (Guess what? I am opera libretto!)

Lisa Hirsch
September 22nd, 2010
12:09 AM
Oh, I disagree - it's end-stage capitalism. The corporation owns everything.

September 21st, 2010
4:09 PM
I think these arguments separate into two areas: 1. record companies and others asking artists to sign over rights or portions of income for work which is nothing to do with them (eg a record label wanting a share of an artist's live earnings) 2. companies wishing to own / retain the rights to work that they've paid for (eg a new commissioned opera, stage set design, etc.) [1] is an area of debate, which I suspect will sort itself out. The record label as a model is done and over, it doesn't work any more. I've long suggested that agencies should set up their own record labels as a small part of the artist agency itself, or that record labels need to become agents. This is starting to happen, somewhat later than it should have done for these firms to survive profitably. As a result artists are being squeezed more because the firms are late to move and need to make more out of it as a consequence. As for [2], I find it hard to really understand all the objections to this. The way the ROH is asking its designers or composers to sign over rights doesn't seem unfair - it's just the same as in other industries. I have yet to hear a really convincing argument or set thereof as to why an artist should both be paid to undertake a piece of work and then continue to own it anyway. Photographers, for example, often get paid a decent daily rate to take photographs, but then receive a further fee each time an image is used. This, to me, is a wholly outdated business model. If you are paid a sensible wage for your time and expertise, why shouldn't the buyer own the work done? In any other industry this is the case. A lawyer, doctor, newspaper leader-writer, computer programmer... all get paid for the work they do, and the company they work for owns the results. An engineer working for Rolls-Royce or for Qinetiq receives their wages, no matter how many fancy new widgets they invent - can you imagine if an engineer was paid to develop a smart new device for jet engines, but then was entitled to a large payout each time the device was used? This may happen, but it is certainly not the norm. I fail to see what is wrong with this. The company takes the risk in paying for it - or in commissioning a new opera, say - and is surely entitled to take the rewards for that, given that they will cope with any loss. I have yet to hear a composer say they will take a fee and agree to share in any losses as much as they wish to share in any profits! The royalty model should be an *alternative* funding model (for example, when an inventor makes a new widget off their own back, and decides that rather than sell the new technology outright they would prefer a small return per unit sold, a la Dolby). It is not, or should not be (unless the receiver is particularly cunning or the product in particularly high demand) an *additional* funding mechanism to a straight fee. It could be used in conjunction with a fee where the fee is low, and the risk therefore, to an extent, shared between creator and commissioner, but I can't see why anyone in receipt of a decent fee for their work should expect a royalty as some sort of 'right' as well. Aside from anything else, insistence on this way of doing things only reduces the available pot for commissioning new work as institutions are accepting a greater risk each time they commission. Why, then, shouldn't the ROH ask it's creators to sign over rights to their work there? It's what happens in many other walks of life, and if the creators are paid properly for what they create, what's the problem? Why are these creators somehow special compared with creators in other industries?

September 21st, 2010
8:09 AM
The same is happening in journalism: Publishing houses, record labels and any company dealing with 'moral rights' know that for every established artist who says 'NO', there will be a hoarde of new, talented, desperate upstarts who have to say yes in order to get one of the few jobs.

September 21st, 2010
8:09 AM
Bravo, Jessica! The Intermezzo episode taught us that if enough people protest, the legal eagles may have to descend from their eyrie.

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About Jessica Duchen

Jessica Duchen is a music journalist and the author of four novels, two biographies and several stage works. She writes regularly for The Independent and BBC Music Magazine. Her latest novel, Songs of Triumphant Love, is published by Hodder.

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