Roger S. Fisher, Ph.D., J.D. teaches courses at York University on law, humanities and copyright policy. He is a member of the Bar of Ontario and is currently working on a project entitled “Antigone Rests Her Case: Law, Legal Discourses and Discourse Shifting in Sophocles’ Antigone.”
The law has always had an uneasy relationship with copies, from the story of Moses and the golden calf to contemporary instances of copyright being used by private citizens as an indirect means of censorship.1 Moses not only reprimanded the Israelites for making their golden calf, he also smashed the tablets of the law in anger (fortunately he went back and got new copies).2 The Israelites’ offence was making a similitude (copy) of a false god. The question of copying (the narrow focus of the doctrine of copyright) is no longer a question of theology, but it does invoke a broader question of the aesthetics (and uses) of imitation.
It is commonplace that in the postmodern era artists have blurred the distinction between a copy and an original work or between an authentic work and an inauthentic work. What is surprising is how little attention has been paid to the conceptual difficulty of distinguishing a “fake” work of art from an original, especially when the fake work of art is the original. The scandal involving the classical music recordings falsely attributed to Joyce Hatto challenges the notion of copyright in performers’ performances and invites us to revisit the philosophical foundations for copyright itself.3
Joyce Hatto, a talented British pianist and performer of classical music, had hundreds of recordings of classical music released under her own name as the performer. The original compositions were in the public domain, but her recordings, it later turned out, were modern (copyrighted) recordings of the classical works by other performers. The suspicion is that her husband, William Barrington-Coupe, duped Hatto (now deceased) as well as the public by replacing her studio recordings with those of other performers. The fraud lasted for many years, and Hatto received considerable critical acclaim for her recorded performances.4 The discovery of the fraud in 2007 has caused a sensation in the world of classical music. It is truly a scandal — what Hatto or her husband did was clearly immoral and dishonest — but one point of the scandal has been missed. Hatto’s “recordings” pose a serious challenge to the policy that gives copyright to performers of original works that would otherwise be in the public domain.5
An editorial in the National Post (which devoted an entire column to the topic on March 5, 2007) reveals the problem with unthinking attachment to a property-based concept of originality in art and music.6 The National Post is right to lament the loss of revenue to the original performers but gets caught up in terminology: “The praise heaped upon Hatto . . . should now settle upon the genuine authors.” The editorial board of the National Post seems to have forgotten that they are not authors, they are performers. The editorial continues, “The companies whose intellectual property was stolen can now hope for renewed publicity and sales, and have so far shown little appetite for litigation against Barrington-Coupe . . .” There may be a good reason why the music publishing companies have little appetite for litigation. Classical music, despite the National Post’s assessment at the start of the editorial, is not a profit maker for most record labels. What is really troubling about the whole affair is that experts in the field of classical music were unable to tell the recordings apart. This may be the reason why no one will litigate. As Norman Lebrecht wrote in The Scotsman (as quoted by the National Post editorial), “there are hundreds of recordings extant of pretty much everything worth hearing” and “with the exception of the occasional genius, few of these records ever betray much originality or can be told apart by the naked ear.” In fact it was computer technology, not the human ear, that detected the fraud.
Copies can range from mere reproductions (“perfect” copies made by machine or technological process as in the Hatto affair) to fake art and imitations, which can range from being virtually indistinguishable from the original to being obviously derivative in nature. The doctrine of copyright makes no distinction between such “machine” reproductions and copies made by means of “non-fraudulent manual imitation . . . by a third party of another work of art.”7 The view that all copying is wrong from an aesthetic perspective has a long history, beginning with Plato, and continuing in various guises to the present day. The child’s complaint, “she’s copying me,” shows the deep emotional link between imitation and irritation.8 But social scientists have identified imitation as an important aspect of the “socialization” of individuals and the development of an individual’s personality and psychology.9 Imitation in the arts is therefore more than a question of prevailing aesthetic values, but is a complex function of the artist as a member of a society as well as a person working within a particular artistic field or domain (such as music, painting, poetry, etc.). But what might have remained a question confined to aesthetics and social psychology has become a practical matter of legal importance because of the law of copyright.
In some ways, the law of copyright can be said to be Platonic in its disapproval of derivative copies. Plato said that an “original” work of art was nothing more than an inferior imitation or copy of nature.10 In the Platonic view, all works of art are merely copies, and so a derivative copy of an “original” work of art (the ideal form) must be inferior because it is one step further removed from truth and beauty. But is an identical fake an imitation of the original or an imitation of nature itself (like the original)? If the two works cannot be told apart, we face a conundrum (much like that in Anouilh’s Antigone when Creon switched the indistinguishable corpses of the patriotic Eteocles and the traitorous Polyneices). Fake art is therefore a challenge to the concept of authorship. If a highly skilled artist can make an exact copy of a famous original (so exact that experts are confounded), this raises the question of what is a copy and what is an original.11 In Platonic terms, all the original artist did was make a copy of nature itself. So the only thing distinguishing the original work from the indistinguishable fake work is the name (and possibly fame) of the original artist. This can work in reverse also. Lichtenstein’s Girl with Ball is not a work until it becomes a Lichtenstein (even though it replicates an image found in a newspaper advertisement years earlier).12
But the law of copyright is also Aristotelian in its objective distinction between ideas and the expression of ideas in a work. Aristotle differs from Plato in regarding art as a path to truth (rather than a distraction from it).13 A work of art does not just imitate nature, it represents the artist’s perspective on nature (or truth) that improves upon or enhances nature. The artist is not just an imitator but a commentator and, in a sense, a creator of something new. In Aristotelian terms, a fake is only a copy of the expression of an idea in an original work. Thus, a copy or fake is an inferior work because it is nothing but a copy of the author’s expression. The modern law of copyright is similar in that it does not allow for the possibility that a separate, valid idea is being expressed in a fake work, nor does it allow for the possibility that the maker of the fake work was expressing a new idea (or that no idea at all was being expressed in the original).
Although the Hatto affair seems to be a bizarre footnote in music history, the broader implications of the affair call into question the whole rationale of providing copyright to performances of works. Is a performer’s performance a copy of the original work (Plato) or a new work (Aristotle)? Although some of the recorded performances falsely attributed to Hatto are “works of genius” (in Lebrecht’s assessment), none of them were such works of genius that critics, fans, and experts were able to tell a Hatto rip-off from the real thing. Her “recordings” were virtually indistinguishable from other recordings of the same works, like fake works of art, but with a subtle difference. In the visual arts, a “true” fake is passed off as an original work by another artist, whereas in the Hatto affair recordings of other performers were passed off as her own—in other words there has been a shift in attribution of authorship. The fake artist usually wants his or her work to be associated with a famous artist. No one would think of releasing a Bob Dylan recording under another person’s name, but they might try to sell a fake Michelangelo under Michelangelo’s name. In Hatto’s case she (or her husband) wanted the indistinguishable recordings of other performers to be associated with the name of Hatto herself.
But the Hatto affair is not a simple case of ripping off authorship. Her “fakes” were exact copies, more like reproductions, or downloaded music in digital formats. No skill was required in making her “copies,” unlike many fake works in the visual arts (sometimes done with fraudulent intent, although there is a market for acknowledged fake art). Copyright in performers’ performances is postulated on the premise that performers are entitled to copyright because they are artists and people might sell exact copies of their recordings, depriving them and their corporate sponsors of profit. It was never contemplated (or thought possible) that people might sell exact copies of a performance under a different name (or that they might get away with it for so long). But if a performer’s performance is protected under copyright, why isn’t a fake work of art also protected? The premise underlying performers’ performances is that a performance of an original work is a new creation, in some respects, a new work of art. Yet as the Hatto case demonstrates, it is difficult to detect any originality in the performances in question. Herein lies the contradiction. A performers’ performance of a work of classical music is granted the privilege of copyright protection, but in the visual arts, a fake, or indeed an obviously derivative work based on an original model, is regarded as a mere “copy” and therefore censored.14
1 For the story of the golden calf, see Exodus 32.19; for an example of secularized legal moralism, see R. v. Butler,  1 S.C.R. 452; for an argument for copyright as a tool of censorship, see C. L. Eisgruber (2003) “Censorship, Copyright, and Free Speech: Some Tentative Scepticism about the Campaign to Impose First Amendment Restrictions on Copyright Law.” Journal on Telecommunications & High Technology Law 2.1 at 17-32.
2 Exodus 34.27.
3 For details on the Hatto scandal, see Kenneth Walton (29 July 2009). “Classical music: How simple tinkering with tempo took in the top critics.” The Scotsman (n.p.).
4 A mere month or two before the fraud was detected, music critics were still hailing Hatto’s recordings; see, for example, David Denton (2006). “The Remarkable Story of Joyce Hatto, Part 2: An Overview Discography.” Fanfare 30:2 at 64-67.
5 Under s. 15 of the Canadian Copyright Act (R.S., 1985, c. C-42).
6 “A classical music scandal.” National Post, March 5, 2007, at A14. Retrieved March 28, 2010, from Canadian Newsstand Major Dailies.
7 M. Johnstone and Paul Duro (1993). “Copy.” In Kenneth McLeish (ed.), Key Ideas in Human Thought. New York, N.Y.: Facts On File, at 168-9.
8 Brian H. Bornstein and Richard L. Wiener (2010). Emotion and the Law: Psychological Perspectives. New York, NY: Springer Publishing Co.
9 Ruth L. Ault (2006). “The Play Paradox: Can Scientists Study Play Playfully?” Review of David Cohen (2006), The Development of Play (3rd ed.), London: Routledge.
10 Plato. Republic, Book 10 (595a–608b).
11 Toronto’ s Royal Ontario Museum has been running a exhibit called “Fakes and Forgeries: Yesterday and Today”(until April 4, 2010).
12 Joy Hendrikson, (2000). Roy Lichtenstein. Taschen, 2000: at 24-5.
13 Aristotle. Poetics, 1448b.
14 Another anomaly is that, as copyrighted works, performers’ performances are in theory protected from derivative copying (although it is hard to imagine how anyone could make a derivative copy of a performers’ performance).