09 March 2010

Four Chords and the Truth

A separate sausage for each; and no, those aren't vocal cords in that sausage... I think.

  • I'll start out with the four chords. Shortly after I discovered the subtitled audio, Professor Pasquale at Madisonian connected it directly to a hazily remembered quotation that demonstrates exactly why we don't want judges ever (especially in the Second Circuit) making decisions on the creative process, let alone artistic merit... or, for that matter, on obscenity.

    It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.

    Darrell v. Joe Morris Music Co., 113 F.2d 80, 80 (2d Cir. 1940). Perhaps it says more about Blink 182, Journey, and Richard Marx (aside from the chronic talent deficit) that they were put together so easily in the subtitled audio than any of them would be happy with...

  • I don't ordinarily rely upon the Daily Mail for anything — it combines journalistic standards that would envy The Sun with the absence of Page Three. That said, the contrast between the bidding war breaking out over Cheryl Cole's proposed celebrity memoir and Robert McCrum's tired old defense of publishing as it is as the best of all possible worlds — a defense that, for a publishing insider, inexcusably (but not surprisingly) ignores more than it reveals — certainly perked up my morning. But then, I'm a curmudgeon whose life benefits from a lot of schadenfreude.
  • Last, and far from least, the truth. Or, rather, part of publishing's attempts to back away from taking responsibility for it, by claiming that "responsibility for errors and fabrications ultimately must lie with the author." Well, maybe that's what the publishers and their insurers would like to believe... but it contradicts the very nature of their name. "Publish" is a relic of Renaissance-era libel law; one of the elements of a claim for libel is that the false statement must have been published to a third party. (That use of the word "publish" predates the Statute of Anne by many years, which in turn predates the first use of "publishing" as describing "the selection, printing, and distribution of printed matter to the general public for per-copy compensation" by many more.) The various industry elements don't get to run away from that fundamental aspect of their own nature simply because it would be more economically convenient for them — and for their insurers — to do so. And, conversely, they don't get to claim benefits of being a publisher — such as the work-for-hire doctrine and the equal right to sue on a copyright and "freedom of the press" — without accepting the responsibilities.

    All of that said, what to say about The Last Train to Hiroshima? In my case, nothing: my mouth is duct-taped by a conflict plus a draconian government-service nondisclosure agreement. (The line for those who wish to personally apply the duct tape forms to the right.) I am merely pointing out that the general rule has always been, is now, and — as a compromise between far too many competing interests to upset quickly — in all probability must remain, that each publisher of a statement is liable for any legal harms arising from that statement... else we end up with variants on Hit Man: A Technical Manual for Independent Contractors dominating the bestseller lists during economic downturns. In short, as annoying for the publishers as it is when an author gives them something that later turns out to be harmful (and I'm explicitly not saying that's what happened with The Last Train to Hiroshima), the obvious alternatives are worse. As usual, the kneejerk reaction at the NYT has led to a sloppily reported article and preordained conclusions, although the NYT is far from alone, either on this particular subject or in general.