"Sacre causes scandal, again!"
The Chinese pianist published a press release in which she stated that she was "very disappointed" about Boosey & Hawkes’ decision. Was it justified, however, to refer to the incident as a "scandal", akin to the one to which the work’s premiere gave rise in Paris in 1913? For sure, the statement is excessive; there are only three parties involved in this dispute, and they do not seem (so far) to have exchanged kicks or catcalls, as was the case during the premiere. Neither is it the Rite of Spring as such that causes turmoil, but rather the severity with which the composer’s publisher is enforcing the copyright that was assigned to it.
In this regard, Boosey & Hawkes claims that its long-lasting policy about not licensing any arrangements of The Rite of Spring, which is in line with Stravinsky's own wishes, has been in place for many years and is widely-known within the industry. Only Stravinsky's own arrangement for piano duet and the orchestral original are authorised for performance. The publisher has claimed that its decision was not based on assessments of the artistic merit of Wang and Gruinger’s arrangement, which, as a matter of fact, have received praise from several critics, including the New York Times. Boosey & Hawkes has further contended that Martin Grubinger's agent had made specific requests for arrangement permission in 2013 and 2014, and such permission was denied both times in writing; therefore, any performance cancellations on the musicians’ part were the result of ignoring early and clear instructions.
Numerous unauthorised arrangements of The Rite of Spring regularly (re)surface on the internet. Boosey & Hawkes has stated that it takes reasonable measures to report these copyright infringements for takedown outside the United States.
So how comes that Wang and Grubinger’s performances were cancelled in Europe, but not on the other side of the Atlantic?
The reason is simple: The Rite of Spring is still under copyright protection in almost all countries in the world, but not in the United States.
No Sacr’ileges in Europe before 2042
On the Old Continent, the work will continue to enjoy protection until the end of 2041, or even longer: in some countries, the legal protection term, which lasts in principle for 70 years following the author’s death, has been extended for works published during or between the two World Wars, to compensate for the loss of profits caused by those periods of conflicts. In France, for example, it has been prolonged by 14 years and 272 days for the works published before the Great War and by 8 years and 120 days for the works published between the two wars; The Rite of Spring, which was premiered in 1913 and whose author passed away in 1971, is therefore protected until 2056.
Stravinsky was one of the many artists who was hit by the two world wars. The Great War burst out one year after The Rite’s premier. Stravinsky retired in Lausanne. As he could not receive his royalites in Switzerland, he and his family faced great difficulties to survive. In 1917, at Ernest Ansermet’s instigation, Manuel de Falla informed Arthur Rubinstein about this situation. Rubinstein then decided to commission a piano work from Stravinsky, and also from Falla, who happened to be in a similar situation to his Russian friend. Little inspired by the piano, Stravinsky wrote down a small piece (of hardly more than three minutes), Piano-rag music. As for Falla, he composed his piano masterpiece, the Fantasia baetica.
However, Stravinsky’s situation was far less miserable than that of his colleagues who had been sent to the front. The French legislator did not fail to express France’s deepest gratitude to the artists "dead for the homeland" (Albéric Magnard, Fernand Halphen, Joseph Boulnois, René Vierne, Jehan Alain, Maurice Jaubert, Emile Goué) by further extending the protection term of their works by another 30 years.
Although Stravinsky’s works did not benefit from such an extension, the situation of the rights holders over the Russian composer’s works in Europe remains nonetheless comfortable. While Stravinsky’s works are still protected there, Debussy’s works became part of the public domain in 2003, Satie’s in 2010 and Ravel’s in 2008 – except in France where, thanks to the "War Laws", Bolero entered the public domain as late as 1 May 2016 (Gaspard de la Nuit, which was published before the Great War, remains, for its part, under protection until 2022).
In the USA, the path is ‘free’
Meanwhile, under the Star-spangled banner, the situation is far more complicated.
At the time of The Rite’s premiere, the US 1909 Copyright Act set the term of protection at 28 years from the date of publication or, in the absence of any such publication, the date of it being entered into the copyright register. At the end of this initial 28-year term, the rights holders could request a renewal of the term of protection for a second equivalent period. The 1976 Copyright Act and the 1998 Copyright Extension Term Act brought this second protection term respectively up to 47 and 67 years, instead of 28. The 1998 Act thus awarded those works published (or entered in the register) before 1978 a protection term of up to 95 years.
However, the US legislator denied any copyright protection to works of foreign origin until the 19th century. Such protection was granted to works first published outside the US territory only as from 1891 – and at first, only in a limited way. Works published in Belgium, the United Kingdom, France and The Netherlands were the first to enjoy this protection. During the years that followed the adoption of the 1909 Copyright Act, the list of the beneficiary countries (so-called "proclaimed countries") was gradually extended. Russia remained excluded from this list, however, because it did not grant US authors an equivalent protection to that of US copyright.
Since The Rite was a "Russian" work, it entered the public domain in the United States immediately after the public release of the score’s first edition, which dates back to 1921 (the 1913 autographe version had not been previously published).
Stravinsky used his best efforts to remedy such a lack of protection. After acquiring French nationality in 1934, he obtained US citizenship on 28 Decembre 1945. On the very same day, the director of the New York office of the Boosey & Hawkes publishing house, Ralph Hawkes, "offered" Stravinsky not only to take care of the publication of his future works, but also to take over that of his existing works, from Petrouchka to Persephone, which he would buy from Stravinsky’s Russian publisher. Stravinsky made use of this opportunity to systematically review his past works. This enterprise was partly guided by aesthetic goals (the composer improved some details and corrected some clerical errors), but also – if not primarily – was aimed at making those works benefit from copyright protection in the United States. It was with this objective in mind that Boosey published, in 1948, an edited version of the Rite’s score, which version was thus granted copyright protection in Uncle Sam’s country. As for the Rite’s score as edited in 1921, it remains in the public domain.
As an anecdote, it is worth noting that it was only in 1995, following the United States’ signing-up to the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), that US lawmakers awarded the benefit of copyright protection in US territory to all works of foreign origin published in WTO countries. To that effect, a Restoration Act was passed that allowed the works of foreign origin considered as being part of the public domain in the United States to be protected from then on under copyright law under the same conditions as American works. All works of foreign origin that have been made public for the first time after 1 January 1923 are thus protected on the other side of the Atlantic nowadays.
In light of the foregoing, one understands why Bolero, which was composed in 1928, has always been protected in the US and is still today, which is no longer the case in Europe, where The Rite of Spring, at least in the version of 1921, is in the public domain in the US, but remains protected in Europe…
Boosey & Hawkes are right to claim that Stravinsky was not fond of seeing others alter his works. He regarded the great composers’ creations, starting with his own, as sacrosanct. So much so, that his relations with interpreters were often very tense. He wrote in his memoirs :
"(…) music should be transmitted and not interpreted, because interpretation reveals the personality of the interpreter rather than that of the author, and who can guarantee that such an executant will reflect the author’s vision without distortion? An executant’s talent lies precisely in his faculty for seeing what is actually in the score, and certainly not in a determination to find what he would like to find. (…) Composers may well envy the lot of painters, sculptors, and writers, who communicate directly with their public without having recourse to intermediaries."
When the Pleyel piano manufacturer proposed to Stravinsky to transcribe his works for his mechanical piano (the "Pleyela"), the composer, motivated by this distrust of performers, accepted immediately:
"My interest in the work was twofold. In order to prevent the distortion of my compositions by future interpreters, I had always been anxious to find a means of imposing some restriction on the notorious liberty, especially widespread today, which prevents the public from obtaining a correct idea of the author’s intentions. This possibility was now afforded by the rolls of the mechanical piano, and, a little later, by gramophone records. The means enabled me to determine for the future the relationship of the movements (tempi) and the nuances in accordance with my wishes. It is true that this guaranteed nothing, and in the ten years which have since elapsed I have, alas ! had ample opportunity of seeing how ineffective it has proven in practice. But these transcriptions nevertheless enabled me to create a lasting document which should be of service to those executants who would rather know and follow my intentions than stray into irresponsible interpretations of my musical text."
It must be said that Stravinsky regularly had troubles with intepreters and choreographers who did not hesitate to arrange his works as they deemed fit…
Diaghilev, for example, was always keen to make cuts in the scores that were submitted to him. In 1928, he cut off Calliope’s Variation, which he found too long, from Apollo Musagetes. Stravinsky immediately put him on notice, which certainly contributed to the deterioration of their relationship.
Ten years later, it was The Walt Disney Company’s turn to arrange The Rite of Spring in one of its famous animated films. In 1938, Disney asked Stravinsky for permission to use the work in his next cinematographic work, Fantasia. As we have seen, the Rite was then in the public domain in the United States, but nowhere else. Therefore, Disney needed a licence to be able to display The Rite of Spring outside the US. However, it had warned the composer that, in case he would refuse to consent to the use of his work, it would use it anyway. In January 1939, an agreement was found: Disney paid 6.000 dollars to Stravinsky in exchange for the right to use The Rite of Spring in Fantasia’s soundtrack and to display the movie throughout the entire world. To Stravinsky’s great dissatisfaction, Disney arranged the score to its taste: the composition was shortened by one third and some sections were inverted. At least, the original orchestration was preserved. Fantasia made it to the big screens in 1940 along with the soundtrack, performed by the Philadelphia Orchestra conducted by Leopold Stokowski.
In 1991, Disney released Fantasia on videotape and its success was temendous: in a 7 year period, the gross revenues from the videotape sales reached 360 million dollars! In 1993, Boosey & Hawkes, to which Stravinsky had assigned his copyright in 1947, claimed its share. The proceedings had an enormous influence in the copyright field. At the core of the dispute was, essentially, the question of whether or not licences granted by authors or their rights holders always had to be interpreted in their favour – i.e. in a restrictive manner – and, amongst other things, whether exploitation on technological carriers that did not exist yet at the date of the licence’s grant had to be considered in all cases as being outside the licence’s scope. The licensing agreement entered into between Stravinsky and Disney in 1939 gave the licensee the right "to record [The Rite of Spring] in any manner, medium or form [for use] in [a] motion picture". In Boosey & Hawkes’ opinion, this clause did not cover use on videotape, a technology that was still unknown at the date of the contract. The publisher’s claim was followed by the court at first instance, but dismissed on appeal. A settlement eventually put an end to the dispute, under which Boosey & Hawkes was paid no less than 3 million dollars.
Stravinsky was not the only composer hostile to arrangements of his (or some of his colleagues’) works – far from it! Honegger too complained about seeing unprotected work being distorted by "those music parasites who are taking advantage of the fact that the true author is in the [public] domain, to make profits in a miserable way and distort that author’s thinking, by substituting their own incongruous "arrangement"."
A double standard?
However intransigent he was towards the unauthorised use of his works, Stravinsky did not always show the same severity towards the artists with whom he collaborated or whose works inspired him.
Alexandre Benois, amongst others, experienced this double standard. The painter had written Petroushka’s argument together with Stravinsky. He was therefore recognised by the SACEM (a French collecting rights society) as co-author of the scenario and, in this capacity, authorised to receive one-sixth of the royalties, including for the work’s public performances. The composer, who probably considered that Benois’ contribution had been insignificant, did his best to get rid of this share; but it was in vain. All his life Stravinsky bore Benois a grudge about this situation.
Stravinsky also tried to minimise the inspiration he had found in Maurice Maeterlinck’s work. While he first admitted without any ambiguity that the Scherzo fantastique’s programme borrowed from the Belgian poet’s The Life of Bees, Stravinsky later on denied this fact, with a brutality that only equals his bad faith:
"Some bad literature was printed on my score’s front page to please my publisher who thought that a little story would make the music sell".
Such irritation was presumably caused by Stravinsky’s fear of having to pay royalties to Maeterlinck; this was a fear that, as André Boucourechliev has emphasised, would periodically resurface regarding many of the composer’s works for the stage.
The copyright in question
While the European Parliament is presently working on a fundamental review of copyright law, the debates regarding the motivations behind the exclusive rights attached to copyright are raging. This is not the place to discuss those - complex - issues. The time when music composers were bound to a prince’s court is over since Mozart, the first "freelance" composer in history. In many countries, the public authorities have ‘abdicated’ responsibility for promoting culture by means of subsides or other awards which, in other states, are melting away like the winter snow at the start of spring. Patronages and sponsorships are salutary palliatives, but surely are not a panacea. How can we, therefore, guarantee the artists a fair reward for their works, if not by means of a genuine copyright protection?
There is little doubt that this question is legitimate. Is it also the case for the argument, often put forward, under which copyright, given it prohibits plagiarism, constitues an incentive to creation? Would many works, that are today considered as icons of the world artistic heritage, not have been condemned to oblivison, had they been created today?
Is Pulcinella based on anything else than a patchwork of pieces or motives borrowed from Pergolese? It is true that Pergolese’s works did not enjoy copyright protection at the time Stravinsky composed the ballet, and the Russian-French-American composer cannot be accused of having merely copied his Italian colleague. But how about Johann Sebastian Bach’s cantata BWV 1083, which is a simple arrangement, based on the German text of Psalm 51, of Pergolese’s Stabat Mater, which was realised just a few years after the original work was composed in 1736? How about Haendel’s works, which often borrow entire themes from the works of other composers of his time? Had they lived in other times, would these great artists have been treated as mere counterfeiters or pirates? Would Brahms have been able to compose his Variations on a theme by Schumann or his Variations on a theme by Paganini? Would Rachmaninoff’s Variations on a theme by Chopin ever have seen the day of light?
The debate is far from over. Initiatives such as that of Yuja Wang and Martin Grubinger regularly revive it.
 Igor Stravinsky, An Autobiography, New York, Simon and Schuster, 1936, pp. 74 and 142.
 Ibid., p. 100.
 Arthur Honegger, Incantation aux fossiles, Lausanne, Ed. d’Ouchy, 1949, p. 175 (informal translation).
 André Boucourechliev: Igor Stravinsky, Paris, Fayard, 1982, p. 60.
 Ibid., p. 45.