Some kind of monster

0 Posted by - April 3, 2012 - Blog, Editorial, Policy, Screen

Canadian filmmaker and activist John Greyson is no stranger to controversy — whether haranguing Justin Bieber to pull concerts scheduled for Israel, supporting queer film festivals in hostile environments, or scuffling with TIFF over the erasure of occupation in special programming, the prolific auteur has seen his share of messy cultural politics.

Yet that didn’t prepare him, or his fans, for an incomprehensible decision made by the Canadian Film Centre this past Sunday when they, at the last minute, cancelled a special Art Gallery of Ontario screening of his short film about anti-gay violence, THE MAKING OF MONSTERS. Citing obscure and unsubstantiated copyright claims by an American company, the CFC did what an alarmingly increasing number of cultural producers and institutions are doing every day — they succumbed to bullying.

At issue is the use of parodied songs such as Mack the Knife by the late composer Kurt Weill. The songs have been in the public domain for over a decade, making them fair game for any artist, but publisher Warner-Chappel is apparently ignoring these facts to police, on behalf of Weill’s estate, the use of the songs as part of a segment that features Weill and Bertolt Brecht as gay fish.

The move to cancel a screening of a film based on baseless copyright claims only serves to bolster the large corporations deploying fear as a tactic for control over public domain culture. Each time a producer or institution like the CFC caves to such aggressive pressure, a precedent is set for the next instance, ultimately amalgamating into an unwritten policy of the censorship of art and culture. The CFC should have stood up to these absurd tactics and screened Greyson’s film. By showing no backbone in the matter they have deprived audiences of an important exhibition of political work and affirmed for the large media corporations that threatening letters written by lawyers actually work.

For our part, we’ve been threatened before by media lawyers, and each time we ignored them and carried on — after all, the only thing they have to stand on is money, not any sense of ethical authority or professional propriety. With that in mind we dug up an online version of the film (above), controversial gay fish songs and all, (password: cfcmonsters). It’s not the best quality, but a viewing should still elicit the naughty sensation of breaking an imaginary law.

The following is the complete April 1st statement from John Greyson:

In what apparently is not an April Fools joke, the Canadian Film Centre has cancelled today’s screening of The Making of Monsters, my 1991 musical about anti-gay violence. It was scheduled to play at the Art Gallery of Ontario at 9pm tonight, as part of my AGO/TIFF/Vtape/Inside Out retrospective. Instead, audiences will join me in scratching their heads, wondering why the screen is blank.

At issue is a 20-year dispute concerning my parodic use of Kurt Weill tunes with original lyrics (e.g. Mac the Knife becomes I Hate Straights). These tunes have been public domain in Canada since 2001 (50 years after the death of Weill), with diverse copyright experts and lawyers, including Laura Murray, Jason Mazzone, Georges Azzaria, Michael Geist and CIPPIC,* confirming this. The CFC likewise agrees (“the compositions are within the public domain within the territory of Canada”), but for reasons that remain unclear, they’re bowing to threats from Warner-Chappell, the US-rights-holder, despite the fact that WC has never explained the basis of it’s Canadian claim, beyond vague worries about international piracy (!)*, something no filmmaker, producer or distributor can 100% safeguard against.

In short, the CFC is being bullied by the world’s third-largest music publisher, who can’t seem to articulate any claim on the tunes in question but who do have deep pockets. (“WC has not relinquished its claim to the songs and they will pursue all legal avenues available to them to protect them. They have a very deep pool of lawyers and limitless funds.”**). In turn, WC and the CFC are bullying me, demanding a signature on a coercive agreement that I received yesterday morning, an agreement which contained many errors (wrong titles for the Weill tunes, wrong claims regarding my lyrics, basic mistakes which made me wonder if they’ve actually watched the film!). Most seriously, the agreement sought to severely limit where the film can be screened in Canada, despite the fact that neither WC nor CFC has rights over the tunes in question — and insists that I personally “indemnify CFC and WC, their directors, officers, employees, agents… against all claims, actions, damages, and costs…” etc. **

Excuse me? I asked a bunch of questions, which weren’t answered (crucially, what’s the basis of WC’s Canadian claims; and why doesn’t the CFC just stand up to the bullying, armed with CIPPIC’s opinion?). Instead, the CFC decided to cancel the screening. (They can do this, as they produced and therefore ‘own’ the film).

When it was released, The Making of Monsters won prizes at the Berlin International Film Festival (Best Short Teddy), TIFF (Best Canadian Short Film), and numerous other international festivals. The rights for international festival screenings had been secured from the Kurt Weill estate — but then, a year later, when the estate found out that Weill and Brecht were portrayed in the film as boyfriends, they hit the roof and WC got involved. (The fact that Brecht and Weill were portrayed as a catfish and goldfish didn’t seem to offend them). Since then, it’s been 20 years of absurdist and often surreal banter back and forth, debating the slippery slopes of parody, fair use and public domain. With this retrospective screening, I thought we could finally get past WC’s unproven corporate claims and watch the film that composer Glenn Schellenberg and I made, a film about anti-gay violence that is sadly as relevant today as it was two decades ago. Instead, the CFC has caved into pressure, and the screen will be blank tonight.

* CIPPIC (Canadian Internet Policy & Public Interest Clinic), a University of Ottawa legal research centre devoted to copyright and intellectual property issues: “We conclude that, based on the information available, the works in question are in the public domain in Canada.”
** from various emails with the CFC, and the WC/CFC agreement sent to me yesterday morning.

FURTHER READING: Below is the complete summary and history of the issue, published by Greyson in January, 2012:

The Making of Monsters: Summary of Copyright Issues

John Greyson, January 2, 2012

The Film
In 1990, I wrote and directed a 35-min short film entitled The Making of Monsters (MOM). Shot on 16mm with cast and crew donating their labour and a cash budget of $15,000, it was produced as a student film at the Canadian Film Centre in Toronto.
MOM is an experimental musical about the real-life 1985 murder of a gay school teacher by high school students in a Toronto park. The film uses music, humour and parody to address the larger culture of homophobia that is ‘taught’ by our society.

MOM takes the form of a behind-the-scenes documentary promoting a CBC movie-of-the-week dramatizing this real life case. In addition to the ‘actors’ playing the victim and his teenage assailants, the film features the characters of German playwright Bertolt Brecht (played by a talking catfish), composer Kurt Weill (as his goldfish boyfriend), Hungarian philosopher Georg Lukacs (as a CBC producer), and Lotte Lenya (as a behind-the-scenes narrator/lesbian activist).

The film premiered at the Berlin Film Festival in February, 1991, where it won the Teddy Award for Best Gay Short Film. It subsequently screened at festivals worldwide over the next nine months, including San Francisco’s Frameline Festival, the London LGBT Festival, the New York Film Festival, and the Toronto Festival of Festivals, where it won the NFB’s Best Canadian Short Film Award.

A (super crude) copy of the film can be viewed here: Password: cfcmonsters

The Songs
MOM includes five parodies of well-known Brecht/Weill tunes (the times indicate their durations in our film):

Mack the Knife (from The Threepenny Opera) — 2 min., 5 sec. Surabaya Johnny (from Happy End) — 2 min., 43 sec.

Alabama (from The Rise and Fall of the City of Mahagonny) — 24 sec. Pirate Jenny (from The Threepenny Opera) — 8 sec.

Song About the Futility of Human Endeavor (from The Threepenny Opera) — 22 sec.

Each parody features new lyrics (for instance, ‘Mac the Knife’ becomes ‘I hate Straights’), original vocals by our actors, and distinct synthesizer arrangements by our composer Glenn Schellenberg, who arranged and recorded all the instruments (for instance, our dicso version of ‘Surabaya Johnny’).

Clearance of Copyright
Since we only used the tunes of these songs, not any lyrics, the rights clearance issues involve only the composer (Weill), not the lyricists (Brecht, Hauptman, Blitzstein, et al).

In April, 1991, the producer of the film, the Canadian Film Centre (CFC), requested and secured festival rights for these five excerpts of the Weill tunes from the Kurt Weill estate, negotiating these rights through the CMRRA (The Canadian Musical Reproduction Rights Agency, who represents music publishers doing business in Canada) and Warner-Chappell (the agency representing the publishing rights of the Weill Estate). The clearance request was succinct, describing the tunes used as background music and the film as a drama about violence and masculinity.

In October 1991, a review of MOM in the New York Times triggered outrage from the Weill estate: among other issues, they clearly objected to our parody versions of the Weill songs, and seemed incensed that Weill and Brecht (both notorious heterosexuals) were satirically portrayed as queer boyfriends (the fact that they’d become120-year-old fish sharing a fishbowl didn’t seem to be a problem).

In January 1992, a potential sale to Channel 4 in England, as well as offers from various Canadian and US distributors, necessitated the extension of the festival rights to include broadcast and semi- theatrical distribution. The Weill estate asked for $30,000 (a hugely inflated amount by any standard, and twice the actual cash budget of the film); the CFC counter-offered $10,000 (the amount of the broadcast sale). The Weill estate were sent a copy of the film and the parody lyrics, in the hopes that they’d recognize both the tribute the film pays to the legacy of Weill and Brecht’s cultural activism, and also, the spirit of parody that informs both the work of Brecht/Weill and the film itself. The Weill estate refused to consider our counter-offer, and the CFC withdrew the film from distribution.

In 2001, the Weill tunes became public domain in Canada (50 years after death of author; Weill died in 1951). Over the next ten years, I repeatedly requested that the CFC allow the film to be shown in Canada, given that the tunes were now public domain here. I also argued that the since our new songs are clearly parodies, they should be protected by fair use provisions in US copyright law, and thus MOM could also be shown in the US. The CFC disagreed and wouldn’t permit any screenings.

Greyson Retrospective
In 2011, Vtape (my distributor), TIFF Lightbox, and the Art Gallery of Ontario requested that MOM be included as part of a retrospective of my work, to be presented in late-March, 2012. Again, I requested that the CFC allow MOM to be screened, given that Weill’s tunes have now been public domain in Canada for a decade. After much back-and-forth, the CFC refused, and then suggested I follow up with both the CMRRA and Warner-Chappell directly, to pursue the matter. I did so, and Warner- Chappell claimed that the tunes in fact still are copyright-protected in Canada — but wouldn’t explain why, despite repeated requests for clarification.

The CFC then speculated that the arrangements we used might be a factor. Composer Glenn Schellenberg clarified that he had created the arrangements himself, using instruments (synthesizer) and idioms (disco) that are distinct, original and a central component of the parodic project of MOM. In his composition process in 1990, he had consulted among other sources library copies of the Weill piano- vocal scores for reference; in all five cases, these were (as much as can be determined 20 years later) original arrangements credited to Weill and his collaborators (Gingold etc), at the time of their composition in the early Twenties. However, he stressed that such consultation took the form of background research and that his arrangments were distinct and original, especially for the Mac the Knife and Surabaya Johnny parodies. In the case of the three ‘audition’ songs (Alabama, Jenny, Endeavour, totalling 54 seconds of screen time), he acknowledged that the case for original arrangements is less clear (being piano accompaniment versions), and suggested replacing these three sections of orchestration with original arrangements that he would write and record.

Fair Use in US
The parodic use of Weill tunes in MOM seems to fulfill all the recognized criteria of US fair use lawi (transformation of original; added value to original for benefit of society; original and distinct expression; a new work resulting from the borrowing) including the crucial fact that the film makes direct, critical commentary on the work and legacy of Weill. Recent fair use/parody cases (Campbell v Acuff- Rose Music; Leibovitz v Paramount Pictures; Suntrust v Houghton) upheld these criteria, and in the March 2011 Cariou v Prince decision, Judge Betts ruled that for a work to be transformative it must “in some way comment on, relate to the historical context of, or critically refer back to the original works.”

MOM partakes of a well-established parodic tradition of inserting new lyrics in familiar tunes, from South African protest songs to karaoke tributes to football chants, a tradition that dates back at least to the 13th century, and includes John Gay’s 1728 songs in The Beggar’s Opera, which was the source in turn for Brecht and Weill’s Three Penny Opera, which features Mac the Knife. (Indeed, a cursory hunt on youtube reveals a dozen parody versions of Mac the Knife, including ones by Sigourney Weaver on SNL and the 80’s MacDonalds ad campaign ‘It’s Mac Tonight’.

Warner Chappell claimed that MOM’s parodic use of the tunes didn’t fit the definition of U.S. fair-use protection — without offering any reasons why, and despite the fact that they hadn’t actually watched MOM at that point. (Equally, it is obviously not up to the rights holder to decide what constitutes parody — that would be a bit like telling Tina Fey that she had to ask Sarah’s permission every time she impersonated Palin).

On Feb 7, 2012, the CFC wrote to Warner-Chappell, asking them to specify their claim of copyright in Canada. There has been no response. To date, no one has answered the following questions:

1. Why would the Weill tunes in MOM (with Schellenberg’s arrangements) NOT be public domain in Canada?

2. Why would MOM’s parodies of the Weill tunes NOT be considered parody in the US, and thus protected under the fair use provisions of US copyright law?

i Pierre N. Leval, Toward a Fair Use Standard,103 Harv. L. Rev. 1105 (1990)

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