Whose thought is it anyway?
Authors and creators live by their works. As long as they are alive, they take measures to ensure that their message to their audience is interpreted according to their original intentions. If not, they are pleased to see in how many different ways their faithful audience receives them and their thoughts.
A different situation emerges when the author is no longer alive. The legal successor assumes the responsibility to ensure that the reputation of the author remains intact, and that copyright and related property rights are protected. Legal successors must fulfil this task for seventy years after the author’s death.
A new situation occurs again after the lapse of seventy years, when there is no legal successor who would, by the force of law, be responsible for preserving the author’s intellectual legacy. At this time, the works are sustained by education and public awareness, and live on through newer and newer interpretations. We all shape and contribute to this public awareness, which is therefore a universal responsibility. But the question: Are we under the burden of this responsibility?
Renowned creators and artists of enormous foresight have wanted to protect their works from the throes of fate, and have safeguarded their intellectual legacy with concrete actions or with precisely worded wills.
For example, Ferenc Lehár, who was heavily against any distortion of his works, founded a music publishing company with an old lawyer friend of his, Dr. Siegfried Freankel (who later became the executor of his will). Lehár left his entire intellectual property to the publisher. Consequently, until 2018 Glocken Verlag maintains the musical legacy of Lehár, who died in 1948, on the basis of principles laid down by the author, composer himself.
The Hungarian legal successor of Béla Bartók, who died in 1945. was Gábor Vásárhelyi, who made life a misery for choreographer and director Yvette Bozsik. In 1995, he claimed that Bozsik’s production of The Miraculous Mandarin staged at Budapest’s Katona József Theatre was an insult to the spiritual heritage of Menyhért Lengyel, author of the pantomime story titled The Miraculous Mandarin, to Béla Bartók, who adapted story to the stage, and to Hungarian art as a whole. In his opinion debauchery went beyond all imagination when the creators, altering the original work, used babies and under-age children in the performance. Following its debut in 1995, the performance ran for two more seasons in the same theatre, and was shown at major world festivals. It was a huge success and popularised Hungarian art in the cities of Seoul, Edinburgh, Cividale del Fiuli, Jena and Gothenburg.
However, a few years later, Bartok’s son and U.S. legal success Péter Bartók expressed his disapproval in person about the 2000 film directed by Márta Mészáros entitled The Miraculous Mandarin, which starred and was again choreographed by Yvette Bozsik, already a state decorated Artist of Merit by then.
Péter Bartók protested against the making of the film, originally conceived as a feature film, from the beginning. The movie told the story of a classic ballerina who has long been flirting with the idea of change, and travels to China for a star gala, where she meets an ensemble rehearsing Mandarin. She stays in China and then fatally falls in love with the dancer and choreographer playing the Mandarin. Péter Bartók objected outright to the concept and the frame of the story. As a result, only a 35-minute-long adaptation of Mandarin was produced, and the original concept was abandoned. The film was presented at the Budapest Film Festival, but only after the awards ceremony. The film was heavily subsidised by the Hungarian Millennium programme of the Ministry of National Cultural Heritage, and the vice-secretary of state Attila Várhegyi was thrilled by it. The adaptation attracted considerable foreign attention at film festivals from Houston to Cannes. However, the legal successors wanted to stop the screening of the film. They cited two reasons: they claimed that the film was pornographic, and that the mise-en-scène did not follow the dramaturgy of Menyhért Lengyel. Although the film was to be shown at the Mandarin Festival, this the legal successors successfully prevented this screening. Ultimately, the film was shown at the Hungarian Academy of Rome, and was also seen by Menyhért Lengyel’s daughter Anna Lengyel, who liked the film very much. After the screening a Jesuit priest, a staff member of Vatican Radio, stood up and said that “he lives in celibacy, but this film gives such a deep and sensitive presentation of love and desire, present even in a priest living in celibacy, that he gives his blessing to the film”. Hence, both accusations made by the legal successors were dismissed in Rome. And although they prevented the première of Mandarin in Hungary, the film was released in Milan.
Under such circumstances it is understandable why creative mediators, such as film producers, theatres and music publishers jump for joy when the “initial work” serving as the basis for a new piece is no longer in the ironclad grip of copyright protection.
However, does this mean that after the expiration of copyright protection (70 years post mortem autoris) every work of art is “up for grabs”?
Europe could hardly wait for the clock to strike midnight on 31 December 1913 after which opera mediators, directors and performers could let their creativity loose and finally present to Richard Wagner fans the works of the great composer, according to their visions in venues outside Bayreuth. In Barcelona, the curtain rose a few seconds after midnight on the first Parsifal performance in which the creators were liberated from the watchful eyes and instructions of the legal successors and estate managers of Wagner, who died in 1883. Later that same day, a performance was held in Berlin, the next day in Frankfurt and Mainz, St. Petersburg followed on 3 January; and Dresden on 5 January. In all, Parsifal was staged in more than fifty European cities between January and August 1914 (Baldwin, 2014).
The Hungarian première of Parsifal was also held within hours of the copyright expiration: a German-language version in the People’s Theatre (now Erkel Theatre) on 1 January 1914, under the baton of Frigyes Reiner. The Hungarian-language première took place a decade later, 1 June 1924, in the Hungarian Royal Opera House.
It is not uncommon that certain nations arduously protect their cultural heritage by providing extra control by way of institutions, authorities, or by the force of law after the expiration of copyright of a culturally important work.
It often happens that associations or institutions proclaim themselves chaperones acting on behalf of the authors of intellectual property. For example, in France, pursuant to copyright law, the personality right (droit moral) of the author of an intellectual work is perpetual.
In 1959, Roger Vadim, the film director who launched Brigitte Bardot, produced a modern adaptation of the famous novel Dangerous Liaisons (Les Liaisons dangereuses) written by Pierre Choderlos de Laclos, who died in 1803. Although the film was no more erotic or controversial than the original story, the society of French writers (Société des gens de lettres de France) demanded that the courts protect the writer’s moral rights, and objected to the use of the original work’s title. This sensitive issue was resolved by the Court of Appeals, which dismissed the Société’s claim to represent an author who had died long before the establishment of the society, and whose opinion on the possible filming of his novel was not available (Baldwin, 2014).
Other nations have also produced specific laws to provide certain protection for their greatest national authors even after the expiration of copyright. For example, in Austria it is possible to reuse public domain classical music in a new piece, but the reworking must pose no risk of confusion with the original work (Verwechslungsschutz). The Czech Republic has a similar copyright law, which is popularly called the “Smetana” law (Jayme, 2015).
Year 2016 was the year of Cervantes and Shakespeare. The names Don Quixote, Hamlet and Macbeth are known all over the world.
There are only a few authors who have given future creators as much inspiration and raw material as William Shakespeare. He died in 1616, nearly one hundred years before the first copyright law, the Statute of Anne (1710), entered into force. Hence, each line he wrote immediately became public domain, (i.e. was available for free use.) However, the precise stage instructions make the author’s original intentions clear. The instructions were often justified by practical thoughts, since he had to take into account technical considerations: the circular circus ring-like stage of Globe Theatre, the lack of wings and backstage, and the acting style of the time.
Yet over the past four hundred years, the great master Shakespeare has directly or indirectly inspired generations of artists. His works have been adapted into countless other genres. It is almost impossible to keep track of theatrical productions worldwide based on his plays.
If we want to get to know the real Shakespeare through his original genre of theatre, we spectators have little choice but to view creative modern productions animated by contemporarily trained actors. But is this the “real Shakespeare?” After so many years, who knows? According to Hungarian actor Tamás Major, “the grandeur of this outstanding playwright” lies in the fact that many actors extract from his works what they need” to stage one of his plays. “We do not agree with this theory,” Major declared. “We do not wish to ‘expropriate’ Hamlet. Yet we too would like to stage this play in a way that after the thorough analysis of Shakespeare’s age, would address our audience in the most sincere way.” (Major,  1985)
Szerző: dr. Tattay Levente
Where and who should set a limit on rational and creative implementation of stage adaptations for contemporary audiences? The artistic freedom of directors and performing artists increasingly collides with the right of the spectators, audiences and consumers. Every new generation has the right to get to know a classical work of art undistorted as much as possible, in a form corresponding to the original intention of the author.
Yet we live in a world where the creations of directors, set designers, choreographers and costume designers enjoy their own copyright protection; they have a constitutional and human right to freedom of speech, expression and creativity. It is often these individual achievements that make a production marketable. A film directed by Steven Spielberg or starring Julia Roberts, a theatre play directed by Tamás Ascher, a setting designed by László Rajk, a costume designed by Fanni Kemenes or dance choreographed by Pina Bausch attracts audiences and creates marketability.
Consequently, the threat of conflict of interest is rising. When a spectator purchases a ticket to a performance, he or she has certain expectations. If there is a complete deviation from these expectations in terms of production or staging, the spectator’s disappointment may lead to the filing of a legal claim for non-contractual performance or quality issues. In short, with the purchase of a ticket, the theatre and spectator enter into a contractual relationship. On the other hand, can the theatre be forced to enter into a contract, to sell a ticket to anyone and expose itself to possible attacks? This question was robustly debated in the press regarding a staging of Goethe’s Faust in Bochum in 1928 when the theatre forced a critic to leave, because city leaders didn’t like his reviews. The man was led from the auditorium by police. The court passed a decision in favour of the theatre (Reichsgericht RG, V106/31), claiming that the venue was not obliged to enter into a contract. And although counter-arguments – such as entertainment using public funds, fair play, the monopolistic situation of the theatre, and the right of making culture available to all – received wide attention, they were rejected. Perhaps today freedom of expression and the press would prevail in a similar incident, but such a ruling would definitely violate a basic tenet of civil law: the general principle of the freedom of contract.
(first published in Hungarian language in Magyar Tudomány, 2017. January)
Kapcsolódó cikkekElőző Következő
Magyarországon meglehetősen alacsony a szellemitulajdon-védelmi intelligencia, még az egyetemi tanárok körében is előfordulnak hihetetlen tudásbeli hiányosságok – hangzott el a Versenyképesség és szellemi alkotások az Európai Unióban című, Tattay Levente egyetemi tanár tollából és a Wolters Kluwer gondozásban megjelent munkájának múlt heti bemutatóján. Fontos lenne, hogy ez a jogág „jöjjön le az elefántcsonttornyából”, hisz nagyon is valóságos kérdésekről és problémákról van szó. Időben fel kell készülni az egységes EU-szabadalmi előírásokra, ellenkező esetben szabadalmi cunami várható.
A II. Wolters Kluwer Jogi Konferencia utolsó délelőttjének egyik szemináriuma a szellemi tulajdonvédelem és az új Ptk. kapcsolatáról szólt, emellett ismertették az uniós védjegyjog reformját és szóba kerültek azok a szerzői jogi ügyek is, melyek az Európai Unió Bíróságát is megjárták.