Silencing Music Through Copyright Law: the Case of Rebecca Clarke
By Liane Curtis
A book burning? In 2004? There was no open-air event, there were no crowds and no spectacle, and in fact I do not know the actual date of the destruction, but most of the print run of the book I edited was destroyed; not burned but rather pulped, the eco-friendly version of book-burning. No ideological statements were made, but the import was clear: some owners of copyrighted material see their position as an entitlement of absolute power, power that can be wielded without accountability or oversight.
A Rebecca Clarke Reader was published by Indiana University Press in May of 2004. The first book on this increasingly recognized composer, it included articles by scholars, reprints of Clarke's own published essays, and transcriptions of interviews with Clarke made shortly before her death in 1979, at the age of 93; I edited the Reader. Clarke's estate manager claimed the book violated the copyright of the estate; threatened with a lawsuit, the publisher withdrew it barely two weeks after its release. I maintain that there was no violation of copyright law, that "fair use" justifies the quoted matter in question. The book was destroyed because copyright was used as a "cudgel," a means of threat and intimidation, retaliation for a perceived questioning of absolute power.1
As Siva Vaidhyanathan points out, "Whenever Americans encounter legal language, there is the distinct possibility that they will believe whatever it commands." Frequently the mythology of copyright interferes with the exchange of ideas, rather than encouraging it.2 My story is a striking example of copyright mythology used to intimidate.
I have been researching Rebecca Clarke for many years, exploring aspects of her music and her life, examining her identity as a composer, the shape of her composing life, and her activities as a musician – a violist, as well as composer. I have published several articles, as well as the Reader. The strange case of Clarke, her estate, and the difficulties of the Reader are indicative of larger problems of copyright law, so I feel this is a useful and important topic to address.
Clarke remains a little-known figure, so I will provide a few details about her life. She was born and educated in Great Britain, but her father was American, and her mother German. Because of the American connection, she traveled and resided frequently in the U.S. and both her brothers settled there. Her first trip to the U.S. was in 1905, and she recalled beginning to compose during that trip. In London she attended the Royal Academy of Music (studying violin) and the Royal College of Music, where she studied composition with Sir Charles Stanford, the well-known teacher of Vaughan Williams and Gustav Holst. She took up the viola while at the Royal College, and played that instrument professionally for many years.
She traveled and worked in the US from 1916 through 1922, when she also wrote a great deal of music. In 1923 she traveled around the world, performing with the cellist May Mukle, and also composing. From 1924 to the beginning of World War II she was based in London, where she performed and recorded on the viola, playing in chamber ensembles and also doing some solo work; for instance, she broadcast the Mozart Sinfonia Concertante on the BBC in 1925. As she later described it, in 1939 she was stranded in the US on a visit to her brothers when war broke out; since London was being evacuated, she was discouraged from going back. There was another period of compositional productivity, but by 1942, she was working as a nanny in Connecticut.
In 1944 she married an old friend from the Royal College, James Friskin, a well-known pianist who taught at the Julliard School. She gave up playing, and seems to have given up most composing as well. Since many works are undated, it is possible that some music was written in this time. I have suggested her monumental setting of the traditional ballad "Binnorie" is one of these later works.3 Clarke and Friskin were both 58 years old when they married. She gave pre-concert lectures at the festivals he played at, and she befriended many of his students, who had no knowledge that she had ever composed a note. James died in 1967, after which Clarke wrote a fascinating memoir focusing on her childhood in England, but also including observations on her later professional life.
By this time, the 20 pieces of her music that had been published, mostly in the 1920s, were all out of print. In 1976, she was accidentally rediscovered as a composer by radio personality Robert Sherman who came to talk to her about the pianist Myra Hess, and who then decided to feature her – Rebecca Clarke Friskin – and celebrate her 90th birthday. Young musicians performed some of her music in the broadcast, and the violist Toby Appel kept the Viola Sonata (of 1919) in his repertoire. The Viola Sonata and the Piano Trio (1921) were both soon recorded – and the rediscovery of Clarke and her music was underway.4 But it was to be a slow process.
When I began my research on Clarke in 1991, in many ways, it seemed like an ideal topic for scholarship. I had written a dissertation on a traditional musicological subject that required reading fifteenth-century French cathedral account books in the hope of finding some occasional mention of music - preferably one that had not been noted by the scholars who had previously trudged through those documents. It was exciting to have a topic that was so fresh: the few things that were written about Clarke were short newsletter articles, and prefaces to the two works, the Viola Sonata and Piano Trio, which had been reprinted.
The primary resources were so rich. Clarke's diaries – surviving from 1919 to 1933 – give an account of a heady musical life, full of involvement in exciting premieres and remarkable artistic occasions. Her vividly written memoir and most of her music were still unpublished and unknown.
I also was excited by the feminist aspects of Clarke as a topic. She was in many ways a pioneer. She was among the first women to work professionally in an orchestra when she was admitted to London's Queen's Hall Orchestra 1913. She attended the first meeting of the Society of Women Musicians in 1910, and she played in concerts to benefit the suffrage movement, both in the U.S. and in England. She faced obstacles – sometimes successfully, and sometimes not. The social conditions and expectations that she encountered are a consideration of my research.
The few pieces of music I was able to familiarize myself with were remarkable. But the rediscovery of her music was stalled. The Piano Trio had been reprinted in 1980 and the Viola Sonata in 1986. No other music was then available, and those two works would soon go out of print again, as their series folded.
And who manages Clarke's estate? It remains in the control of Christopher Johnson, a grandnephew of Clarke's by marriage. Although he describes himself as having had a close relationship to Clarke, he only knew her the last eight years of her life. Contrary to what he has stated, I have found no evidence that Clarke designated him to be her estate manager. Her will makes no provision for how she wanted her music to be treated after her death, or who should have this responsibility.5 She was just beginning to think about her few published works being rediscovered when she was 90, and she had long since given up on the unpublished works, and to a great extent, had forgotten about them as well.6
In the 1920s, she had gotten discouraged from publishing: it took her seven years to find a publisher for her Piano Trio. During that time, many of the instrumental and choral works she wrote seem to have been put away without ever having been performed. This music has been held unknown in her estate, with pieces being discovered and premiered just in the last several years.7
How did Christopher Johnson gain control? After making a few specific gifts, Clarke's will left the remainder of her estate (with no mention of her music) to be equally divided among her eight nieces and nephews. But Johnson already had the bulk of the music materials in his possession, since in 1977, while a graduate student in musicology, he had borrowed them from her to write a report and catalogue the works as a class assignment. This 46-page typescript was the only catalogue of her music made in her lifetime, and thus it is an important document, but also a problematic one, as Clarke observed that it contained "small errors" and that Johnson had not presented it to her for correction. The materials were never returned; in an interview, Clarke mentions that Johnson has borrowed them so she doesn't have them.8Clarke died in 1979, and her estate was in probate until late 1981, when the family decided to formally assign Johnson control of the materials.9 Johnson was chosen because at that time he was in a musicology graduate program at the City University of New York. At one point he wanted to write his dissertation on Clarke, but he did not ever complete a degree program while at CUNY. The collection of Clarke's manuscripts that Johnson obtained control of, had never been inventoried, nor had its value had ever been assessed. The family members were unaware that there was any unpublished music, much less that by far that larger part of Clarke's output was unpublished. Most did not know about her brilliant memoir. Clarke's relatives tasked Johnson, as her estate manager, to promote her works. Instead, in my opinion, he hoarded them, and let them out in a manner that was, at best, erratic.
But Johnson was not all resistance – while almost never replying to correspondence about the estate, and thus not putting his wishes or opinions into writing, he could be agreeable in person. So through persistence I eventually accessed a great deal of material.
Johnson kept (and as far as I know, still keeps) these materials in his apartment in Brooklyn. I spent days there in a series of visits from 1992-1999. I decided that the best thing to do would be for me to bring my camera and film these resources, so there would at least be my archival copy, my amateur microfilm. I was nervous about the safety of these priceless objects being held in a private home subject to floods, mice (which I saw), fire, and other hazards such as being accessed by Johnson's children. Johnson permitted me to make these films, and he was aware that I was planning to write articles and a book.
Gradually he became increasingly resistant in letting me access things – but he would never explain why he was resistant or what his plans were. Only that he had plans and that he didn't want to be rushed.
When I first met him in 1992, his job was director of textbook sales at Oxford University Press, in New York City. By the fall of 1995 he was working in OUP's music scores division, where eventually he became Director. This relationship seemed to keep him from considering other publishers who were interested in making Clarke's music available, publishers including Boosey & Hawkes and A-R Editions. I saw this as a conflict of interest, between his loyalty to his job and his responsibility of caring for Clarke's estate. As Johnson remarked in a presentation he gave to the International Viola Congress in June 2002: "My employer is the Press, I have to keep those responsibilities first and foremost."10
He served at OUP until June 2005, when he retired. OUP did begin publishing Clarke's music from her estate, beginning with a short choral work late in 1998. The pace of publication gradually accelerated, and by 2003, all of Clarke's choral music and a number of instrumental works were available.11 Now that Johnson is no longer with OUP, there are no known plans for the publication of the remainder of her music.
The private ownership of this type of legacy is so shortsighted, and so contrary to the original goals of copyright law: to promote "the progress of science and useful arts" (U.S. Constitution, article 1, §8). The sources cannot be compared or studied, and some music remains unknown. Even for the published works, there is still the need to verify the editions through study of the manuscripts. With my background as a medievalist, I have training in the conservation of primary sources, and have studied manuscripts in a wide range of major European and U.S. libraries and archives. The materials of Clarke's estate need professional conservation: controlled temperature, humidity, and protection from other dangers that a private residence is vulnerable to.
The straw that broke the camel's back in my tense relationship with Johnson occurred thus: a small portion of estate materials was held by another relative, Johnson's brother-in-law, Daniel C. Braden, who lived in the apartment where Clarke and Friskin had lived (at 108th Street and Broadway in Manhattan).
Late in 1999, I heard from Braden that he was going to give these materials to Johnson so that everything would be together. My thought was that while these materials were being moved, it was a good opportunity to make copies, which could be given to a library. I called and wrote the New York Public Library suggesting this, and urging them to contact Johnson. I also wrote to other relatives telling them about the difficulties others and I had had accessing the estate, and suggesting that they could encourage Johnson to give copies to a library. Johnson's response to this was to send me my first Cease and Desist letter, dating from May 2000. In that letter, Johnson, through his attorney, asserted that I had "been representing to third parties" that I had "a role in administering the Works" or was "an agent of Rebecca Clarke’s estate" and also that I had "engaged in behavior that may constitute libel and defamation of his character" by communicating to members of Clarke's family "that Mr. Johnson is rejecting legitimate requests to perform and have access to the Works." He demanded that I cease in this behavior.12
Already in October 1999, following a successful conference about Clarke that I had organized at Brandeis University, I and several others had moved to organize the Rebecca Clarke Society, in order to encourage interest in her and her music, to work towards making more of her music available to musicians, and to advocate for the protection of the sources. But following Johnson's attack on me, the Clarke Society has also served to demonstrate the breadth of interest in – and concern for – Clarke and her music. Now, years after that first Cease and Desist letter, Johnson has given up threatening me and the Clarke Society, but instead, he threatens those who try to work with me or the Clarke Society – musicians, scholars, and in 2004, the publisher of the Clarke Reader.
Late in 2002, I had signed a contract with Indiana University Press for A Rebecca Clarke Reader. I knew that Johnson would make trouble, so I was very careful to keep the use of material that he controlled to short passages that without doubt would fall under the heading of "fair use," as defined by U.S. Copyright law. Thus, in my view, Johnson's copyright was not violated. The control that he exercises over her estate is not absolute: "fair use" exists, and is to be protected. As the Chicago Manual of Style states, "The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly."13
Johnson learned about the plans for the book early in 2003, through his employer, OUP: IUP had paid OUP a licensing fee for permission to include in the Reader an entire song published by OUP. Johnson had his lawyer send a letter stressing his insistence that no materials owned by the estate be quoted. IUP agreed to Johnson's demands – they removed three chapters from the book. Now, looking back, it's easy for me to ask why I went along with this, since I felt what they were doing was completely unnecessary, not to mention wrong. My reasoning was that three chapters had to be sacrificed in order for the other 14 chapters to be published. But because I didn't agree with what IUP was doing, I was not going to be helpful to them in enforcing these terms. I knew that the book still contained quotations from material that Johnson controlled, even after three chapters were removed. But the quotations they had taken out were perfectly legal, in my view, and the quotations left in were legal as well, so I was not going to point those materials out to them.
When the book was published in May 2004, it did not take long for Johnson to have his lawyer write to IUP, demanding that the Reader be withdrawn from circulation. IUP was suitably intimidated and withdrew the book. I see IUP's behavior as a needless concession that places the University's integrity at risk. The speed with which the publisher collapsed on this issue emphasizes the precarious position of fair use.
I had not expected IUP to cave in to Johnson's demands, because my contract with them stated that I was the one responsible for any violations of copyright that the book might contain. Why didn't they let that responsibility fall to me? It wasn't the Press, it was the University and its lawyers who didn't want to be dragged into a legal battle. "We very much regret having to withdraw the book," stated Indiana press's director, Janet Rabinowitch, in an interview with The Chronicle of Higher Education. "We were very proud of it. We do it very reluctantly."14 The Presses are pressured by the University lawyers, and basic principles of scholarly inquiry and academic integrity are compromised.
Johnson's stance continues to be that there is no problem with his handling of the estate, that he is doing a good job, and that musicians and scholars who want to can access the works. He claims that he refuses to cooperate with me because I have violated his copyright. Yet despite his many threats he has never filed a legal case, and I continue to hear from musicians who are unable to obtain Clarke's unpublished music.15
It remains difficult to access the estate. Under Johnson’s 2003 contract form, musicians or scholars who wish to access the unpublished music – if they receive any response at all from Johnson – are prohibited from playing the music in public and are required to sign what is much like a McCarthy era "loyalty oath" swearing that they will have nothing to do with the Rebecca Clarke Society, Liane Curtis, or Brandeis University.16 In 2002, a doctoral candidate at the University of Nebraska, Laura Haupt, decided to not pursue research on Clarke because she feared that signing Johnson's contract would put her at risk: if I were read her dissertation after it was completed – something that she could not control – Johnson could try to hold her liable. Musicologist Cyrilla Barr (author of a biography of the musician and music patron Elizabeth Sprague Coolidge), and Paula Gillett (author of a history of women in music in late Victorian Britain) are two distinguished scholars to whom Johnson has denied access – simply by his refusing to communicate with them.17
From my perspective, Johnson is attacking me because I am a whistleblower: having challenged his years of what I consider negligent treatment of her estate, he needs to discredit and marginalize me. Many of the Clarke relatives have supported me in this, expressing their disappointment in his treatment of the estate, and his hostile behavior. A few others feel loyal to Johnson. While all the family members were helpful to me in the first years of my work, following the conflict with Johnson, his side of the family – those who like his wife are related to Clarke's youngest brother, Eric, have been become distant and reluctant to be involved. An exception is Clarke's niece Magdalen Madden, who continues in her support of the Rebecca Clarke Society. On the other side of the family are the relatives of her brother Hans. In particular, the nieces Heidi Schultz and Rebecca Evans remain staunchly loyal to the Society, as are also other relatives on that side of the family.
In demanding that the Reader be withdrawn, Johnson made several types of charges, but those that intimidated the publisher concerned the quotation of unpublished writings by Clarke: passages from her letters, diaries and memoir. But Johnson also has a history of restricting access to her music. Withholding her music from publication and keeping the sources in private possession demonstrate the general practice of restriction. More specifically, in 2000, after seven years of granting me occasional access to materials of Clarke's estate (allowing me to copy her diaries, memoir, and unpublished music), Johnson decided that he would no longer grant me permission to use these materials. Shortly after that, two musicians received permission from the estate to premiere Clarke's early violin sonatas of circa 1909: the astounding first performance in 2000 of music written 90 years before. When the estate learned that I was involved in organizing the concert, that permission was revoked. With support from the newly incorporated Rebecca Clarke Society, the concert went forward, protecting the musicians from legal action with letters of indemnification. That concert is still one of very few performances of this music that is yet unpublished.
The three-movement Sonata in D is (in my opinion) one of the finest pieces Clarke wrote (although certainly more conservative in style than her better-known later works). In her memoir, she recalled writing the second movement while studying composition with the renowned Charles Stanford at the Royal College of Music.
Why Clarke left this music unperformed and unpublished in her lifetime is a complex question. But why should a distant relative (a grandnephew by marriage) be able to prevent the performance of this music until 2049 (the current term of copyright for unpublished materials is the life of the owner plus 70 years)? And how is this promoting "the progress of science and useful arts"? Since the 2000 concert, still more music has been found in Clarke's estate, materials that had lain unnoticed since her death.
October 19, 1976, was a monumental day in music history. On that day, copyright was applied retroactively to all unpublished creative works in tangible form. Copyright was applied to these works without their being registered, and without their owners being notified or recorded. Previously, copyright had to be formally registered and this was usually part of the publication process. In the case of Rebecca Clarke, she had only published 20 works out of approximately 100, so her 80 unpublished works entered copyright at that time.
Clarke did not know that this change had taken place, nor would she have been concerned. Her interest was in her few published works, which at that time were all out of print. She was worried that their publishers were not making these pieces available, but because the publishers still held the copyright, she was unable to find new publishers. Had Clarke been concerned with copyright, she could have seen to it that her unpublished music was registered for copyright long before the 1976 law made it automatic. But she did not. In fact, in an interview she related that "People used to say to me 'Oh, I'm going to buy your Sonata,' or 'I'm going to buy this or that,' and I'd say to them, 'Don't you go and buy it, it's so expensive, I'll lend you my copy.'" So she was not concerned with copyright, royalties and regulations.19
The legacy and posthumous reputation of composers is to a great extent shaped by the treatment of the materials of their estate. I would like to raise this issue as a broad one, and to point out that conventions of gender are an influential factor. Such inattentive treatment found in the case of Clarke's estate is more common for women than for male composers. Since women live longer, husbands tend to be survived by their wives. Ralph Vaughan Williams and William Walton come to mind as British composers whose legacy has been advocated by their surviving wives. Women (particularly those who grew up in the Victorian and Edwardian eras) were trained by cultural expectations to avoid self-promotion, and instead to nurture and care for others. Women composers struggle with this issue in their lifetimes, and it often creates problems after their death. They fail to provide for the care of their estate, and they are not survived by a partner who will be devoted to their legacy. In many cases, to research a female composer or get access to her music requires the first step of figuring out who has control of her estate, and learning how to contact that person. That first step alone is an obstacle, one more common with women than with men.
When A Rebecca Clarke Reader was effectively suppressed, I faced the question of what my next step should be. Should I bring a legal case against Clarke's estate for defaming me and interfering with my contract with my publisher? Or should I charge Indiana University Press with violating my contract? I was hesitant to villainize the publisher, which had followed the instructions of the University counsel, attorney Michael A. Klein.20
Because of a health issue, it was early 2005 before I turned my attention to getting the Reader back into circulation. At that time, someone suggested that I could approach IUP and ask them if the 94 offending lines in the book could be blacked out with a permanent marker (I envisioned myself traveling to Indiana, marker in hand, to do this), so that the modified book could then be distributed. This was an intriguing possibility, but by then IUP had pulped the remaining volumes.
Working with the Rebecca Clarke Society, I decided that the quickest and simplest way to make the book available was to have the Clarke Society reprint it and distribute it. I did not want to do print-on-demand, or work with another publisher because I feared that the same thing could happen again: another publisher would be intimidated into withdrawing it. Another possibility, making the book available electronically, raised the risk that the website hosting the files could be shut down using the Digital Millennium Copyright Act. In fact, in 2005, the Clarke Society website was shut down twice – temporarily – for selling the book.21
But since October 2005, sales of the book via our website have been uninterrupted, and increasingly brisk. The book is now catalogued in over 150 libraries worldwide, and more than 400 copies have been sold to individuals. Also, we produced 500 copies of a slightly abridged version in PDF format copied onto CDs. (This version omits certain materials published elsewhere that were licensed for use in the first printing, in particular Clarke's essays that had been previously published, and songs that were printed in their entirety as musical examples.) These CDs we have distributed free (for instance to members of the Society for American Music, and the International Alliance for Women in Music). This abridged version is also available on Google Books.22 Several researchers concerned with issues of copyright, and its use to impede the process of scholarly inquiry, have cited what happened to A Rebecca Clarke Reader and I have given several talks on the subject as well.23
The Clarke Society has other publishing projects in the works: first will be a volume of essays about Clarke that includes chapters that IUP removed from the book in advance of publication in an attempt to placate her estate.24 Bryony Jones' dissertation, an analytical study of Clarke's music, is the next planned book; it will be a fine addition to the literature on Clarke. Then I hope to complete a short biography of Clarke – and so on.
In A Rebecca Clarke Reader I wrote that the book would be the start of a growing new world of Clarke studies. Sadly, it is not that. In light of the hostilities, it is hard to imagine scholars being drawn to carry out research on Clarke. But scholars need to turn to the miracle of the computer: digital technology, desktop publishing, and Internet distribution all serve to make publishing something that can easily be taken on – so that we as writers and researchers can, if need be, do what the publishers are increasingly afraid to do. Books may be burned (or pulped) by the publishers themselves, but we as authors can use the available tools so that our words and ideas rise up from the ashes.
September 12, 2009
Liane Curtis is Resident Scholar at Brandeis University’s Women’s Studies Research Center, and has taught classes on women, gender issues, and music at institutions including Wellesley College, Bowdoin College, and Brandeis. See http://www.brandeis.edu/centers/wsrc/scholars/profiles/Curtis.html
The Rebecca Clarke Society website is at http://www.rebeccaclarke.org/
1. Siva Vaidhyanathan, "Copyright as Cudgel," Chronicle of Higher Education, August 2, 2002. http://chronicle.com/free/v48/i47/47b00701.htm. The events of the withdrawal of the Reader are detailed by Richard Byrne in "Silent Treatment: A copyright battle kills an anthology of essays about the composer Rebecca Clarke," Chronicle of Higher Education, July 16, 2004. http://chronicle.com/free/v50/i45/45a01401.htm.
2. Vaidhyanathan Copyrights and Copywrongs (New York: New York University Press, 2001), p. 17.
3. See Liane Curtis, "'Binnorie: A Ballad': A Newly-Discovered Song by Rebecca Clarke," in Rebecca Clarke: Essays on a Life in Music (Waltham, MA: The Rebecca Clarke Society, Inc., forthcoming 2010).
4. Details of the rediscovery of Clarke and her music are found in the interviews transcribed in A Rebecca Clarke Reader (Liane Curtis, ed.) (Rebecca Clarke Society, 2005). As described later in this article, the Society published the Reader independently after Indiana University Press backed out.
5. Clarke's will, dated June 18, 1968, is available here. In a letter to Clarke's nieces dated Oct. 31, 2000, Johnson states that "The assignment of rights was in fact made by all the heirs in line with Beccle's [Clarke's] draft revised will and accompanying notes, all of which are in my possession." No other family member recalls this scenario or seeing a "draft revised will and accompanying notes." In 2006, the Rebecca Clarke Society, Inc. attempted to negotiate a settlement with Mr. Johnson. His attorney, Mark S. Kaufman, sent the RCS a lengthy document (dated April 4) representing Mr. Johnson's views that included the statement: "In the last years of her life, Rebecca Clarke gave clear indications, both orally and in writing, of her wishes for the transmission and protection of her works, and the rights in them, after her death." This assertion has not been substantiated: to my knowledge, no written indication of Clarke's wishes has ever been presented, nor do Clarke's other family members recall her instructions as to the treatment of her estate after her death.
6. As described in "'Binnorie: A Ballad': A Newly-Discovered Song."
8. Reader, p. 204, pp. 218-219.
9.The possibility of assigning the rights to Clarke's "works" to Johnson was first made on August 21, 1981, in a letter by attorney James H. Black, (who was engaged to settle her estate). The completed assignment to Johnson, signed by all the legatees, is dated November 8, 1981, and assigns the rights to Mr. Johnson "for the purposes of promoting such rights as a memorial to the late Rebecca Clarke Friskin."
10. 30th International Viola Congress, 2002, June 20, 2002. University of Seattle, Washington. The recorded proceedings of the Congress were available for sale through their website.
11. My review in Notes 60, Number 1, September 2003, pp. 278-285, considers the editions of Clarke's music published by Oxford University Press, New York 1998-2003.
12. I wrote to Susan T. Sommer, Chief of the New York Public Library's Music Division on 12/10/1999, as follows:
Thus, Johnson's accusation is groundless. He regularly ignored requests for access to or copies of the materials, as I can document through many letters and emails from a range of scholars and musicians.
13. Chicago Manual of Style, Fourteenth Edition (University of Chicago Press, 1993), 4.58, p. 148. For a description of the parameters of fair use, see Marjorie Heins and Tricia Beckles, Will Fair Use Survive? Free Expression in the Age of Copyright Control (2005: Brennan Center for Justice at NYU School of Law, Free Expression Policy Project). Another resource for the understanding of fair use is Stanford Center for Internet and Society's "Fair Use Project."
14. Richard Byrne, "Silent Treatment: A copyright battle kills an anthology of essays about the composer Rebecca Clarke," Chronicle of Higher Education, July 16, 2004. http://chronicle.com/free/v50/i45/45a01401.htm
15. Johnson's attorney has sent me nine "Cease and Desist" letters since May 2000, and has also written to musicians who worked with the Clarke Society, and in addition sent copies of the letters to our employers, and (in the case of the musicians) the Musicians Union.
16. As of 2003, Johnson's contract included the following clauses: "Licensee may study and play Composition privately in his/her own premises, in the studio of a teacher or accompanist, or in a studio or other facility on the premises of an educational or artistic institution, all of which shall be closed from public view and hearing." Furthermore, "Licensee shall make no use of Composition that is either directly or indirectly connected with, sponsored by, or to the benefit of a Rebecca Clarke Society currently based at Brandeis University, the Women's Studies Program of Brandeis University, any other department or constituent element of Brandeis University, or Liane Curtis, Ph.D." If I, Liane Curtis, or even our members were to read the scholar's work, we would then be benefiting from this "use" of it, and the scholar would be liable, according to this contract. Of course whether it is actually legal to make such demands could only be determined in a courtroom.
17. Email from Laura Haupt, December 6, 2002; email from Cyrilla Barr, November 17, 1997; correspondence with Paula Gillett, December 1, 2000. Haupt completed her dissertation research on the French composer Ernest Chausson. Barr's book is Elizabeth Sprague Coolidge: American Patron of Music (New York: Schirmer, 1998). Gillett's is Musical women in England, 1870-1914: "Encroaching on all man's privileges" (New York: St. Martin's Press, 2001).
18. "I had a Father Too (Or the Mustard Spoon)" (1969-73), unpublished typescript, pp. 170-171.
19. Interview with violist Nancy Uscher, April 11, 1978. Reader, p. 200.
20. In an email to me on June 15, 2004, Janet Rabinowitch, Director of Indiana University Press, stated that "I regret that Indiana University’s legal counsel has advised the Press to withdraw from circulation your edited volume, A Rebecca Clarke Reader, and we have done so." Associate University Counsel Michael A. Klein was copied in as a recipient.
21. Vaidhyanathan, "Copyright as Cudgel," discusses how the Digital Millennium Copyright Act can be used to shut down websites without evidence or due process. See also Marjorie Heins, The Progress of Science & Useful Arts: Why Copyright Today Threatens Intellectual Freedom (Free Expression Policy Project, 2003). The Rebecca Clarke Society has repeatedly tried to negotiate some type of reasonable settlement with Christopher Johnson. In 2002 we hired a professional mediator, Linda Golding (a former President of Boosey and Hawkes music publishing) in an attempt to work out some compromise. In 2005, our attorney Colette Vogele (formerly a fellow at Stanford University's Fair Use Project) negotiated with Johnson and his attorney, but without results.
23. "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age," A Foundational White Paper by William W. Fisher and William McGeveran (The Berkman Center for Internet & Society Research Publication Series: http://cyber.law.harvard.edu/publications. August 10, 2006), p. 88. Kembrew McLeod, Freedom of Expression(R): Overzealous Copyright Bozos and Other Enemies of Creativity (Doubleday, 2005), p. 252. Ted Striphas and Kembrew McLeod, "Strategic Improprieties: Cultural Studies, the Everyday, and the Politics of Intellectual Properties," Cultural Studies Vol. 20, Nos. 2//3 March/May 2006, p. 124.
I am also grateful for the opportunities I have had to give presentations about my experience with Clarke and the Reader, at the Peabody Institute (at the invitation of Dr. Mark Katz) Feb. 2, 2005, at The Berklee College of Music (at the invitation of Dr. Beth Denisch) Oct. 25, 2005, and at the Society for Ethnomusicology Annual Conference, Honolulu, Hawaii, Nov. 16, 2006.
24. Rebecca Clarke: Essays on a Life in Music (Waltham, MA: The Rebecca Clarke Society, Inc., forthcoming 2010).