13 March 2005

Forking Paths

by Matt Rubinstein at 7:11 am

stamp3.jpgThis entry was prompted by a Boing Boing post complaining about the way famous photographs had been amended in recent years to remove any sign of cigarettes. For example, the French National Library has just swiped Sartre’s Gauloise; a poster version of the Abbey Road cover elided Paul McCartney’s cancer stick; and this US stamp commemorating blues pioneer Robert Johnson is based on on a photograph of him smoking a cigarette, but clearly shows him not smoking a cigarette.

The last example is included as evidence in a rant by determined tilter Dave Hitt, who compares anti-smokers with Hitler—who it turns out was also fiercely anti-tobacco and imposed restrictions on cigarette advertising and sales that are similar in many respects to our modern-day regulation.

Hitt acknowledges Godwin’s law—which states that all online discussions will eventually produce a comparison to Hitler and the Nazis, and has developed into a convention that whenever that comparison arises the discussion is over and the comparer has lost the argument—but protests, like everyone, that this time the comparison really is apt. Certainly it’s apparent that Hitler felt the same way about smoking as today’s anti-smokers do. But calling them “nicotine Nazis” relies on an extremely dubious association between the Nazis’ policies against tobacco and their policies against humanity and reason, and immediately descends into the opportunism and trivialisation that was presumably Mike Godwin’s whole point.

I do think it’s ridiculous—and bad faith—to airbrush cigarettes out of old photos, but perhaps it’s not so bad in the Robert Johnson picture. For starters, this is clearly just a painting based on the famous photo, so it’s more a case of the artist choosing not to paint a cigarette than of removing something that was already there. Johnson didn’t always have a cigarette in his mouth, as the only other surviving picture of him clearly demonstrates. The chord he’s playing in the stamp is also different from the chord in the photo, so perhaps he’s just dropped his fag between bars, or something.

I wanted to post the original photo here, but I had a fair bit of trouble finding it—which, in the case of old and iconic images like this one, usually means there’s a particularly meticulous copyright-holder stalking the Internet. Sure enough, the only images I could find were either hosted in Russia or slavishly attributed to the Delta Haze Corporation and copyrighted to them in the 1980s, which seemed strange for photos taken in the 1930s. However, their story checks out. The individual behind Delta Haze is blues aficionado Stephen LaVere, who in 1974 tracked down Robert Johnson’s last known surviving heir, his half-sister Carrie Thompson, and persuaded her to assign him all of Johnson’s intellectual property in return for 50% of the ongoing profits. It was a good deal for Thompson, who probably didn’t know she had the rights and certainly hadn’t been exploiting them. But arguably it was a better deal for LaVere, who has now made a lot of money out of Johnson and isn’t even related to him. And a lot of people argue that it hasn’t been the best thing for the blues or for Johnson’s legacy.

Johnson’s compositions had long been considered more-or-less in the public domain since he’d died so long ago and nobody was around to enforce his copyright. The most successful rockers in the world had been recording his songs for ages: for example, the Rolling Stones covered (or interpreted, or whatever) his Love in Vain in 1969 and his Stop Breakin’ Down Blues in 1971, both published by Allen Klein’s ABKCO Music. LaVere sued ABKCO for copyright violation in the 1990s. In 2000 the Ninth Circuit found that releasing a record didn’t constitute a publication of the underlying musical work—that is, it didn’t bring the music into the public domain and start the clock ticking on copyright. Which seems a shame, but is just another example of the US and its corporations (and now trading partners) reneging on the intellectual-property bargain—that is, that creators get a limited monopoly on their inventions on the basis that they eventually fall into public use for the good of all. But that’s another story. The Ninth Circuit remanded the ABKCO decision back to the District Court, where so far nothing seems to have happened; maybe it’s settled.

The pictures were discovered in Carrie Thompson’s place and first published by LaVere in Rolling Stone and 78 Quarterly in the late 1980s. That started the clock at last, and they’ll be in the public domain by the 2030s, barring inevitable legislative amendment. I’ll post them then; they’re worth seeing. Or you can get watermarked versions on the Delta Haze website. But it’s the same thing: whoever took the pictures is almost certainly as dead as Johnson; good on LaVere for helping to dig them up, but is that worth a 50-year monopoly?

Meanwhile, ABKCO took a page out of LaVere’s book and sued The Verve for 100% of the royalties from Bittersweet Symphony, which uses an instrumental riff from the Stones’ The Last Time. ABKCO has also slugged George Michael and Janet Jackson for borrowing lyrics popularised by Mick and Keith, so we shouldn’t go feeling sorry for them. Really it’s all a bit ridiculous, since almost all the lyrics and riffs and chord changes have roots almost a hundred years old—it seems kind of obscene that already-rich people should be fighting so hard over them now. But that’s as far as I’m going to follow these tangents for tonight.

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