The interpreter s contribution in the value of the musical work. The case of Flamenco

Transcription

1 The interpreter s cntributin in the value f the musical wrk. The case f Flamenc Palma Marts, Luis (lpalma@us.es) Heredia Carrza, Jesús (jeshercar@alum.us.es)* Departament de Ecnmía e Histria Ecnómica.Universidad de Sevilla 30 f April 2016

2 Keywrds: Flamenc- Interpreter- Cpyright- Cultural Value- Imprvisatin. Objectives f the research - General: Analyzing thrugh a study f cmparative law and ecnmic data the rle f musical perfrmers in their wrk, and their ability t add riginality and value t this. - Specific: Getting them t be cnsidered as authrs in cllabratin f wrks that they interpret and adding value, s that they wuld have mre legal rights and as such they wuld be remunerated. Brief descriptin f the backgrund This study aims t explain the dilemma between authr and musical perfrmer in this legal treatment in Spain, making cmparisns between different legal systems. Based n cncepts like riginality and creative substance we discuss the pssibility f cnsidering certain musical pieces such as jint wrk, resulting in pprtunity csts incurred by the interpreters. The analysis is cntextualized within the Flamenc style characterized by its flexibility, large dses f imprvisatin and intuitin, which in many cases are prvided by the figure in questin. T speak f riginality within Flamenc, we refer t structural elements such as lyrics, rhythm, harmny and meldy; hwever, we fcus n the subjective side f it. There are several psitins n this issue: - French Cde f 1992 des nt mentin the criteria f riginality prtectin. Hwever it is used by the curts f that cuntry bserving the persnality which the authr imprints upn the wrk, regardless whether the piece is nvel r nt. - The German dctrine and jurisprudence deal with the cncept f creative substance. It is the mst demanding standard in Eurpe, requiring a minimum level f nvelty. An interesting pint is the line marked by Lewenheim, wh believes that the wrk shuld represent the human spirit (Geist der menschiliche). - The Americans defend the ntin f distinguishable variatin accrding t which a wrk is riginal when the cntributins represent a significant change frm the existing ne. - Other Angl-Saxn systems like in Britain, Australia r New Zealand prtect the whle recrding in a brad sense. - The Eurpean Unin with its directives pt fr nvelty, and nt by the criteria f subjective riginality. They stp paying attentin t the

3 persnality which the authr can bring, which is a step back in the flexibility f riginality criteria. Anther aspect t deal with is the flamenc musical perfrmance where intuitin and imprvisatin play a main rle, brilliantly explained by Prfessr Jsé Rmer (Rmer, J., 1996). He emphasizes thse elements and claims that thse artists that d nt increase the value f the wrk can never be cnsidered as authrs. If nthing new, they can be replaced by ther artists withut any lss. One f the characteristics f interpretatin is their inseparability regarding the musical wrk. Which brings us t the study f jint wrk: a jb where all the authrs prvide an equal cntributin t the said wrk achieving a unitary result. Paragraph 3 f the art. 7 TRLPI said that cntributins cannt be perated separately if it causes injury t the cmplete wrk. Nt being the separable interpretatin f the wrk, it cannt be perated independently. While it is true that elements such as meldy r lyrics themselves can be explited separately prvided they d nt bring abut interference t the cmmn wrk. All this is meaningless withut the analysis f the recgnized rights f artists and authrs, emphasizing their differences. When we talk abut rights, we shuld speak f tw types: patrimnial and mral. Regarding the first, the TRLPI in arts. 106 et seq., refers t the rights f reprductin, distributin, public cmmunicatin, which the artist may have, but culd nt transfrm the wrk, which is nly allwed t be carried ut by the cmpser. Regarding the latter, accrding t art. 113 f the same legal text we bserve hw the artist wns the rights f paternity and integrity, while the authr has said rights alng with divulgatin, remval f trade and access t the singular cpy (art. 14 TRLPI). One f the mst cntrversial pints in the analysis in questin is the duratin f such rights. While the duratin f said rights in the case f perfrmers is 50 years frm the first perfrmance (art. 112 TRLPI), the authr s rights cntinue until 70 years after his death (art. 26 TRLPI). This differentiatin invlves pprtunity csts fr interpreters, which in ur pinin, shuld be cnsidered as authrs in such a cllabratin. Research questins - Des the musical perfrmer add value t the wrk? Is it remunerated? - Hw is it regulated? - Hw can we estimate the value added by the artist?

4 Methdlgy Thrugh a study f cmparative law and ecnmic data we will justify ur hypthesis, and t further cmplement this we will analyse different cases. One f the mst interesting parts is the cmparisn f the cmmercial success which the said wrk has enjyed when interpreted by different artists. Main r expected cnclusins/ cntributins By cnceptual reviewing f the riginality, regulatry framewrks and analysis f the cases, we will study the added value t the musical wrks by the Flamenc artist. Due t the large intuitive and imprvisatinal style which this type f music has, we will justify the cnsideratin f that interpretatin which adds creative riginality t the piece as well as prviding an extra structural element. After we will study hw the added value by the artist in many cases is nt paid efficiently, and which creates inequalities. It is interesting t cmplement the theretical explanatin with cncrete case studies and cmparative law as thse endjured by Furtwängler, Manitas de Plata r Camarón de la Isla. - Case Furtwängler cllected in the judgment f the French Cur de Cassatin f January 4, Wilhelm Furtwängler was cnductr f the Vienna Philharmnic Orchestra wh, during Wrld War II, recrded (alng with the bradcaster Third Reich) several pieces f classical music in rder t retransmit them. When the Allies ccupied Berlin, Sviet authrities in East Germany, finally gave way under cntract t a Cmpany in New Yrk: Urania Recrds Inc. This Cmpany fabricated the recrd fr this piece, which was distributed in France under the signature Thaliadisques withut the rchestra, nr its directr giving their cnsent, s Furtwängler went t curt alleging abductin f phngrams. After rejecting several judgments the January 4, 1964 the French Cur de Cassatin states that such cnduct is a vilatin f the rights f the artist n his perfrmance, which in itself is a wrk. Therefre they were cmpensated and, mst imprtantly, the recgnitin f the right perfrmer was achieved, prhibiting any use f the interpretatin that was nt authrized by cntract. - Case Manitas de plata: Tucked in the judgment delivered by the Cur de Cassatin n 1 July In this case yu can see the idea f temperament, inspiratin, ppular and flklric dance Flamenc, which

5 we call duende. Thanks t these ideas and style which were presented as riginal character, the guitarist was finally cnsidered as the authr f the pieces which he played. - Case Camarón de la Isla published n August 2, 1992, in the Spanish newspaper el País Ls derechs de Camarón de la Isla. Jsé Mnge Cruz was pssibly ne f the best singers and innvatrs in the histry f Flamenc in the 20 th century. Precisely because f the elements it prvides, such as intuitin, imprvisatin, phrasing, etc., we believe that their cperatin is essential in the final wrk, he must be cnsidered cauthr f it and nt a mere interpreter. Cnsequently, we will defend the hypthesis that the interpretatin is a structural element within the Flamenc. Main references - Study f cmparative law Text Refundid de la Ley de Prpiedad Intelectual españl. French legislatin. American legislatin. German legislatin. - Bibligraphy: AA. VV. CASTILLA, M., MURCIANO, A., ROSÓN, T., ESPÍN, I., SÁNCHEZ, M. P., DE ROMÁN, R., COTORRUELO, M., El flamenc y ls derechs de autr, Reus, Madrid, DE ROMÁN PÉREZ, R., Obras musicales, cmpsitres, intérpretes y nuevas tecnlgías, Reus, Madrid, LEVINSON, J., Musical Cncerns: Essays in Philsphy f Music, Oxfrd Schlarship Online, Oxfrd, ROMERO JIMÉNEZ, J., La tra histria del Flamenc, Junta de Andalucía, Sevilla, SAENZ DE TEJADA, I., Ls derechs de Camarón de la Isla. El País, Madrid, 1992 (2 de agst). - Nrmative: Circular 92, Cpyright Law f the United States and Related Laws Cntained in Title 17 f the United States Cde (OCTOBER 2009). Cde f Federal Regulatins, Title 37- Patents, Trademarks, and Cpyrights, Cpyright Office regulatins cdified in the Cde f

6 Federal Regulatins (CFR). These regulatins are als knwn as Circular 96. Directiva 2001/29/CE, de 22 de may - LCEur\2001\2153. DERECHO DE AUTOR. Armnización de determinads aspects de ls derechs de autr y derechs afines a ls derechs de autr en la sciedad de la infrmación. - Jurisprudence: Cur de cassatin, 1ère chambre civile - "Manitas de Plata" - 01 juillet 1970.