Silent Treatment

July 16, 2004

A copyright battle kills an anthology of essays about the composer Rebecca Clarke

Colloquy Live: Read the transcript of a live, online discussion with Wendy Seltzer, a lawyer at the Electronic Frontier Foundation, about what steps scholars can take to protect their "fair use" rights under copyright law, in light of a university press's recent withdrawal of a scholarly book under threat of a copyright lawsuit.

Two letters arrived in book reviewers' mail in the middle of June. One missive came from Indiana University Press, withdrawing its just-published A Rebecca Clarke Reader from circulation. Citing "errors in the production of the book," the letter asked reviewers and editors to ship it back at the press's expense.

The second letter came from Liane Curtis, editor of the Reader and founding member of the Rebecca Clarke Society. The label pasted onto the face of the envelope was bold and succinct: "DON'T RETURN your Rebecca Clarke Reader! The recall is groundless! We are fighting back!!"

A tangle of alleged copyright infringement and mutual recrimination -- hitched to rising scholarly interest in the late Anglo-American composer Rebecca Clarke -- lurks behind the dueling letters and the book's withdrawal from circulation last month.

Mark S. Kaufman, a lawyer for Christopher Johnson, who owns the copyright to Clarke's unpublished music and writings, sent a letter to the Indiana press's director, Janet Rabinowitch, on June 2, alleging that the publication of the book violated copyright law. The letter argued that the Reader "was replete with unauthorized excerpts from unpublished works, as well as defamatory and libelous statements regarding Mr. Johnson."

Indiana immediately suspended distribution of the Reader, Ms. Rabinowitch says. Two weeks later, the press recalled already-sent copies on the advice of the university's counsel.

"We very much regret having to withdraw the book," she says. "We were very proud of it. We do it very reluctantly."

Ms. Curtis, a resident scholar at Brandeis University's Women's Studies Research Center, says that Mr. Johnson has quashed the book out of personal animus against her. She says that the unpublished material in the Reader falls under "fair use" provisions of copyright law, which permit the reproduction of such materials without permission for the purposes of comment or parody.

As the director of Oxford University Press's music division in the United States, Mr. Johnson claims some knowledge of the book-publishing industry. He sees the matter in a much different light. He says that he has "nothing against the book" and is merely enforcing the copyright that he holds for Clarke's unpublished writings. His four-year refusal to grant Ms. Curtis, or anyone affiliated with the Rebecca Clarke Society or Brandeis University, permission to use these materials is not rooted in personal animus, says Mr. Johnson. Rather, he says, it is because "in a number of documented instances, [Ms. Curtis] engaged in uses of that material without permission or went well beyond the permission given."

One university press's book recalled at the insistence of an employee at another academic press presents an exquisite irony. But the tale of A Rebecca Clarke Reader also illustrates a much larger problem: University presses, affected by shifting interpretations of copyright law, lack the resources to test the provisions of that law.

Strings and Things

On a mild late-June day in Ms. Curtis's living room here in Somerville, the sweet, nervous energy of Rebecca Clarke's 1924 movement for string quartet, "Comodo e amabile," flows from the stereo speakers.

"'Comodo' means something like 'comfortable' or 'friendly,'" says Ms. Curtis, who offers running commentary on Clarke between pieces.

The uncomfortable and unfriendly dispute between Ms. Curtis and Mr. Johnson that killed A Rebecca Clarke Reader has come at an unfortuitous moment, when interest in women composers -- and in Clarke's music, specifically -- has intensified.

Born in 1886, Clarke began composing at a time when musical opportunities for women were highly circumscribed. She was the first woman to study composition with Sir Charles Villiers Stanford at London's Royal College of Music, and she placed second to the noted composer Ernest Bloch in a prestigious competition in 1919 at the Berkshire Chamber Music Festival. A promising career as a composer of chamber music, songs, and choral works was in view, but Clarke's production diminished and eventually petered out by the mid-1940s, for reasons that were both personal and professional.

A revival of interest in Clarke began shortly before her 1979 death. It was during these first stirrings that Mr. Johnson entered the picture. Related to Clarke's family via marriage, he set about cataloging the composer's work with her help in the mid-1970s. In 1982 Clarke's heirs assigned the copyrights to her work and the royalties from it to Mr. Johnson.

Ms. Curtis was studying medieval music when she first encountered Clarke's work a few years later. She was hooked. "I saw it as a nice way to combine my social consciousness with scholarship."

Ms. Curtis won Mr. Johnson's cooperation in her early efforts to study and promote Clarke's work, which culminated in a 1999 conference on Clarke held at Brandeis. But her working relationship with him frayed, she acknowledges, thanks to her public critiques of Mr. Johnson's editing of Clarke's music and her intensive campaign for greater access to unpublished material, which extended to lobbying Clarke's surviving relatives.

In a September 2003 review in the journal Notes of six editions of Clarke's music edited by Mr. Johnson, Ms. Curtis took aim both at his editing and his stewardship of Clarke's musical legacy. "Why has until now all of the music in her estate remained unpublished and in most cases unavailable for nearly 20 years after her death? Who controls the materials in the Clarke estate? What is the condition of the materials? And lastly, how can scholars and musicians gain access to these sources for study and scholarship? Johnson provides little enlightenment on these matters. He never cites locations in his many references to primary sources."

Mr. Johnson rejects Ms. Curtis's accusations in their entirety. "This is private property," he says. "Who is Dr. Curtis, or anyone else, to say what's to be done with this?" He says that he has granted scholars access to the unpublished Clarke materials, and is working diligently to find a publisher for the composer's unpublished memoir, titled "I had a Father, Too, (or the Mustard Spoon.)"

Far from denying access, Mr. Johnson says that he welcomes scholarly interest in Clarke, including the unpublished materials. "Anyone who wants to see them is welcome to apply to me," he says.

All's Fair Use in Love and War

Anyone, that is, except Ms. Curtis -- or anyone associated with her. Indeed, some of the copyright infringements cited by Mr. Johnson's lawyer in the June 2 letter to Indiana University Press are quotations from those unpublished writings that Mr. Johnson had previously approved.

"Permission is always specific," he says. "Permission given once in a specific context does not give permission for further use."

Ms. Rabinowitch, of Indiana University Press, contacted university lawyers after receiving the letter. An outside copyright expert was also consulted.

"Their advice," she says, "was to withdraw the book because of the inclusion of previously unpublished material."

According to Ms. Rabinowitch, the alleged copyright infringements added up to 94 lines, or slightly more than two pages of a 241-page book. She says that the press told Ms. Curtis that it did not want any materials that might be disputed put into the book. "She did so," says Ms. Rabinowitch. "We didn't catch it."

Gayle Sherwood, the music editor at the Indiana press, says that she knew of the feud between Mr. Johnson and Ms. Curtis when she took on the project in 2002, and that Mr. Johnson communicated his refusal to license any use of unpublished materials for the Reader to her. Despite the bad blood, she says, "I thought I could get the project through, and I wanted to try."

Ms. Sherwood observes that three chapters were omitted from the Reader as a response to Mr. Johnson's refusal to license the material, but she says that she did not comb through the manuscript with an eye to plucking the bits identified by Mr. Johnson and his lawyer from the manuscript. "I thought Liane understood that we didn't want any unpublished materials in the book," Ms. Sherwood says.

Ms. Curtis disagrees with the press's decision. She says that the brevity of the material and its scholarly use in the Reader place it under the umbrella of copyright law's "fair use" provisions. "I don't think it infringes the copyright," says Ms. Curtis, "which is why I don't think I'm trying to sneak things in."

Fair-use provisions of copyright law increasingly have come under attack by corporations that deal in intellectual property, but the law remains murky and even contradictory in many aspects. In a notable 1987 case, a federal appeals court ruled that a biographer infringed the copyright of the writer J.D. Salinger merely by paraphrasing large portions of his unpublished letters, which were available in a research library. On the other side of the equation, a 1991 federal appeals court ruling affirmed another biographer's use of 16 unpublished letters and diary entries written by the author Richard Wright as fair use.

Lawrence Lessig, a professor of law at Stanford University and founder of the university's Center for Internet and Society, says the restrictive interpretation of copyright asserted by Mr. Johnson and his lawyer is symptomatic of what has become a "significant problem" for scholars. It is so significant, he says, that many contracts between authors and presses seek to "avoid any possibility of a lawsuit. Not legitimate lawsuits, but any."

Ms. Curtis argues that Indiana University Press should test those provisions of copyright law. "I would like to see Indiana stand up to [Mr. Johnson] ... I really wonder if he would go through with a court case."

But as belts tighten at university presses, there is little cash or inclination to be guinea pigs for fair use. "You could argue that this is fair use and you could argue that it isn't," says Ms. Rabinowitch. She says the press chose caution over confrontation.

"No one has $11-million to test the gray areas," concurs Ms. Sherwood.

Sanford G. Thatcher, director of the Pennsylvania State University Press, serves on the Copyright Committee of the Association of American University Presses. He agrees that most university presses have little freedom to test the provisions of the law. "That's part of the setup with a university press," says Mr. Thatcher. "The university tells you what to do. It's not as if the press has an independent say. The university will end up saddled with the bill."

Killing the Aspidistra

Near the end of a telephone interview about the Reader and its withdrawal, Mr. Johnson sounds somewhat exasperated. "I don't like having to enforce copyright all the time," he says. "But there are legal implications to not doing so."

The withdrawal of the book does deprive readers of new scholarship on Clarke and a number of Clarke's published writings and interviews. For instance, Ms. Curtis's essay, "Rebecca Clarke and the British Musical Renaissance," links the composer's satirical composition, "The Aspidistra" and George Orwell's 1936 novel, Keep the Aspidistra Flying (later made into a 1997 film starring Richard E. Grant and Helena Bonham Carter and titled A Merry War).

Despite the press's demand that she return the 200 copies of the Reader in her possession, Ms. Curtis says that she is keeping them. "I have my 200 copies that I give to reporters and to libraries," she wisecracks. "I can start photocopying things and turn it into a PDF and have it circulate samizdat."

Ms. Rabinowitch says that the press "is not contemplating action" to compel Ms. Curtis to return the books. But Mr. Johnson, through his lawyer, seems intent on doing just that.

On June 17, his lawyer sent a letter to Shulamit Reinharz, a professor of sociology and director of the Women's Studies Research Center at Brandeis. "Despite Dr. Curtis's refusal to comply with the instructions of her own publisher," writes Mr. Kaufman, "we intend to take all steps necessary to enjoin any future distribution of the infringing work." The letter demands answers by June 22 to questions about Ms. Curtis's relationship with Brandeis "which may impact upon whether Brandeis shares in Dr. Curtis's liability for copyright infringement."

Lorna Miles Whalen, senior vice president for public affairs at Brandeis, says that Ms. Curtis "is a distinguished musicologist and a resident scholar in the Women's Studies Research Center." The Reader, she says, was edited by Ms. Curtis as an "independent scholar." The work of such scholars "belongs to the scholar," Ms. Whalen adds, and not to Brandeis.

For all their differences, Ms. Curtis observes that she and Mr. Johnson share more than their interest in Rebecca Clarke's music. "One thing about us both," she says, "I think we're a little bit obsessed with both of us. He's gotten very obsessed with me, and I've gotten very obsessed with him." Section: Research & Publishing Volume 50, Issue 45, Page A14