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You Couldn’t Tie People To Railroad Tracks Because It Was Copyrighted

September 26, 2018

by:

Joe Patti

Copyright may seem like a pretty dry subject, but the court cases that lead to the development of the law and theory surrounding copyright law can be pretty interesting. HowlRound posted the transcript of Michael Lueger’s podcast discussion with Dr. Derek Miller about some of the early copyright cases that applied to theater and music performance.

One of the interesting cases they discuss is competing expressions of the iconic melodrama train track scene where someone escapes just as the train arrives. Apparently playwright Augustin Daly was the first to write such a scene and playwright Dion Boucicault copied the idea. The courts ruled in favor of Daly saying that even though every other element of Boucicault’s play was different, the common action was key to the drama and thus was protected.

(By the way, according to Atlas Obscura, contrary to the trope, Daly’s play, and even many silent films, had a man on the tracks and the leading lady rescuing him.)

Interestingly, when the guy producing Boucicault’s play tried to reach an early settlement by licensing the train effect from Daly’s show, “The court actually says, no, no, no. The effect is not something you can copyright, … You can’t own the effect, but you can own the action.”

This general concept holds to today where you can copyright the expression of the idea, but not the name or the idea itself. You can, of course, trademark names and patent effects, but those are different types of protections than copyright.

Another fascinating situation happened when Thomas Hamblin’s Bowery Theatre was doing poorly but Charles Thorne’s Chatham Theatre around the corner was doing great. Thorne was getting ready to do a play by Joseph S. Jones so Hamblin goes to Jones and makes a deal to open Jones’ play on the same night in an attempt to put Thorne out of business. They were planning to have Jones sue Thorne “for violating your [Jones’] rights to produce the play.”

However, the courts say since Jones was working for a Mr. Pelby when he wrote the play, Pelby had the right to sell the performance rights to Thorne.

But what came next is really interesting:

I’ve got a lot of evidence here from the New York Herald, which goes all in for Thorne, and they argue that by trying to shut down Thorne’s production, Jones and Hamblin of the Bowery Theatre are limiting the audience’s ability to compare the artistic products at the Chatham and the Bowery. It’s sort of a free trade argument that they’re making.

In other words, according to Thorne and to the Herald … Thorne actually writes an editorial that appears in the Herald … if the productions are allowed to compete with each other, both theatres are going to do even better artistic work than they would otherwise. They say Hamblin is trying to shut down artistic competition and to give you a bad product, but we’re in favor of a good product and letting Thorne do the play. Legally, actually, the case is sort of a weird, unimportant footnote, in terms of the legal precedent it establishes, but it helped in studying this case to teach me how theatrical copyright battles get both parties thinking about the relationship between a work’s artistic value and its monetary value.

It is interesting to me that they get into this argument that having competing versions of the same production going on around the corner from each other is providing people with a choice and opportunity to decide which is the better production.

Nowadays, when you try to license performance rights you can run into all sorts of restrictions because a 2000 seat venue 200 miles from you planning to do the same production 12 months after you mount your production in a 200 seat theater.

While that is kind of extreme, I think the basic idea that people are willing to pay a lower price for a discount version of the same product and cannibalize your potential audience is a real concern.

Even in 1841 when Thorne and Hamblin were butting heads, if people wanted to see a show a significant number would probably accept lower production quality for 25 cents at the Bowery versus paying $1 at the Chatham.

Audience Relations, Business Models, Marketing/PR

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#NotMyMetric

September 25, 2018

by:

Joe Patti

Carter Gillies shared the unabridged version of a piece he wrote for the Arts Professional UK on his website this weekend. As Carter is wont to do, he examined statements about quantifying and measuring the value of the arts made by Simon Mellor, the deputy chief executive for arts and culture at Arts Council England.

I was particularly drawn to Carter’s second entry where he addresses this statement by Mellor (my emphasis):

“At its heart, the Quality Metrics system is about enabling arts and cultural organisations to enter a structured conversation with audience members and peers about the quality of the work they are presenting. It allows them to capture valuable data that they can use to understand how their intentions for the work are aligning with the experiences of their audiences and peers and, hopefully, to use that information to plan future programmes and improve the quality of their work. It will also enable those organisations to provide more evidence to current and future funders about the quality of their work.

Let me first state that I don’t believe these metrics will really have any ability to measure the quality of the work done by the arts organisations. If you have read any of my previous posts on the matter you probably knew that already.

I was taken by the idea expressed in the bolded sentence above. One of the biggest challenges facing arts organizations in the last few years is the recognition that what they are doing might not align with the interests of the community. In surveys like Culture Track, people say they aren’t attending arts events because they don’t see themselves or their stories depicted on the stages, walls, and spaces. They don’t preceive what is happening in arts spaces to be relevant to them. Nina Simon wrote a whole book about making experiences relevant for people.

So if the Arts Council of England could actually deliver some real insight into how to make the experience more relevant for people, that would be a pretty valuable service.

However, as Carter points out later in that second entry, there are many examples of artists whose work was initially rejected before being lauded. Some died before others began to recognize the value in the work they missed before. We see this sort of thing happen all the time in our lives. Movies and shows that did poorly both critically and economically suddenly become cult classics.

The Rocky Horror Picture Show became immensely popular after it initially flopped. But it is also a good example of something whose value exploded after people were able to participate and take ownership of the experience.

Even if it is an accurate reflection of how people are receiving something, the research is only going to be valuable to a point.

The problem, however, with creating a metric is that often that metric becomes fetishized as the measure of value rather than one element among many that can help us understand how an art work and the experience surrounding it is received.

As Carter notes, quoting Oscar Wilde, even when we talk about a metric someone else is using, the meaning of that metric may not be shared by both parties. Thus the #NotMyMetric title of this post.

(my emphasis)

There is a reason bean counting number crunchers have so much authority in the arts, and mainly it is for the good. The arts are a business and need to function as such. But it is also important to not let that world view overreach itself. We need to be careful in not putting the cart before the horse. In many ways the arts are the exact opposite of what the counters are, and see, and value.

The ever impish and ironical Oscar Wilde understood this predicament:

“When Bankers get together for dinner, they discuss Art. When Artists get together for dinner, they discuss Money.”

There is a mutual interest, in other words, but neither does it mean a banker thinks of art as an artist does, values it for the same things in the same way, and equally true of artists’ attitude towards money, but especially that this does not mean they should be left in charge of one another’s concerns. A ‘dinner table’ acquaintance is insufficient for the real work that needs to be done.

Building Public Will For Arts And Culture, State of the Arts, Working In The Arts

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Some Last Thoughts On Conferences For Awhile (Probably)

September 24, 2018

by:

Joe Patti

I know I have been harping a lot on conferences of late, but you know, ’tis the season!

Because I had been in the process of moving to a new job, I just caught up with my blog feed this weekend and read Barry Hessenius’ piece on effectively exploiting the conference experience for people at different stages in their careers. Which he wrote a few weeks before my first post on the topic, proving once again that he is at the forefront of arts management theory.

Don’t misread my previous posts about how to improve the conference attendance experience as disgruntled criticisms of any conferences I have attended or contributed to. I was approaching the topic in the same spirit as I approach arts attendance experiences: questioning what it is that conferences, like the arts orgs they serve, need to do in order to provide participants with a valuable experience.

Hessenius’ post is especially useful for first time attendees because their conference experience is going to be all about networking. He identifies common features of arts conferences and provides advice about how to exploit these dynamics to best effect.

For example, regarding the plenary luncheons:

I never sit at just any table, nor am I the first one to seat myself. I wait until the tables begin to fill, quickly identify a table occupied by people I might want to talk to and those I might want to get to know. Even if your seat mates are serendipitously determined, that’s ok, because often times you end up meeting someone who will make an excellent contact. Note too that keynote speakers are often inspiring and motivating, but few keynotes will offer you much practical advice that you can use, and thus the before, and during conversations with those at your table may be more valuable to you in the long run.

The one bit of advice I felt was valuable for people of any level of conference attendance experience was in regard to preparation:

One final piece of advice: there is a lot of talking that goes on at conferences. Learn to listen and listen well. And please, if there are recommended reading materials and / or research available before the conference for a session you might want to attend, don’t put that off until you are on the plane. Do your homework, if there is any, beforehand. If you give yourself more time to think about the subject, you’ll get more out of the presentation, and you’ll be able to formulate good questions to raise. Relax on the plane.

If there is one phrase I have heard at conferences over the last decade or so it is along those lines. People say they meant to review a text in advance or they downloaded the book planning to read it on the plane or listen to the audio content as they drove but didn’t get to it.

I understand that. For a whole lot of people attending a conference means cramming all the work you aren’t going to be around to do into the last few days before the conference. There is even less time than usual available to preview conference content.

But as Hessenius implies, you are carving out time to attend a conference to help yourself be better at your job. If you only have a precious few days in which to do that, it is worthwhile to prepare the soil in which this valuable content can thrive and grow.

Art(ist) Education, General Musings, State of the Arts, Working In The Arts

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Whew, Who Knew Finding Your Passion Was Such Hard Work?

September 19, 2018

by:

Joe Patti

Back in July there was an interesting piece in The Atlantic examining the value of the claim “find your passion and you will never have to work a day in your life.”

As I was reading the article, I saw that this concept had a lot in common with the idea that artistic achievement is the result of inspiration or genius rather than the result of a long period of practice, experimentation and experience. I have written about this idea often in the distant and recent past. The study reported on in The Atlantic piece continues to extend and add evidence to my thinking on this topic by suggesting you develop your passion rather than being struck by it in a momentary flash.

Another reason not to buy into the fixed theory is that it can cause people to give up too easily. If something becomes difficult, it’s easy to assume that it simply must not have been your passion, after all. In one portion of this study, the students who thought interests were fixed were also less likely to think that pursuing a passion would be difficult at times. Instead, they thought it would provide “endless motivation.”

[…]

People who have a growth mind-set about their own intelligence tend to be less afraid of failure, according to her research, because they believe smarts are cultivated, not inherent. Interests are related to, but distinct from, abilities, the study authors told me: You can be interested in something but not very good at it. “I’ve been playing guitar for 25 years, but I can’t say that my abilities have gotten that much better in the past 10 years,” O’Keefe said.

Dweck told me that “find your passion” has a laudable history. “Before that, people were saying, ‘Find your genius,’ and that was so intimidating. It implied that only people who were really brilliant at something could succeed,” she said. “‘Find your passion’ felt more democratic. Everybody can have an interest.” But this study suggests that even the idea of finding your “true” interest can intimidate people and keep them from digging further into a field.

I was particularly interested by this idea that “find your passion” developed out of a desire remove the intimidation factor inherent in “find your genius.” It seems like something of an admonition to pay attention to the inherent implications of any new phrases that crop up to replace “find your passion.”

Art(ist) Education, Working In The Arts

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