Friday, January 31, 2020

Gary A. Rosen's "Adventures of a Jazz Age Lawyer"

Gary A. Rosen has practiced intellectual property law for more than thirty years and is Adjunct Professor of Law at the Kline School of Law at Drexel University. He is the author of a book on popular music and copyright, Unfair to Genius: The Strange and Litigious Career of Ira B. Arnstein, and he writes a blog on law and popular culture called Jazz Age Lawyer.

Rosen applied the “Page 99 Test” to his new book, Adventures of a Jazz Age Lawyer: Nathan Burkan and the Making of American Popular Culture, and reported the following:
Page 99 of Adventures of a Jazz Age Lawyer finds Charlie Chaplin at a career crossroads. After two years in Hollywood as a poorly paid contract player―an apprenticeship which allowed him to hone his cinematic art while becoming a worldwide sensation―Charlie has, with the help of his new lawyer, Nathan Burkan, signed a one-year contract with a new studio at the stupendous salary of $670,000 ($16.5 million in current dollars). The new contract gives him an unprecedented level of artistic control over his productions. But before he can even begin work, he learns that his former studio is about to release the last two-reel picture he had delivered to it, Charlie Chaplin’s Burlesque on Carmen, as a four-reeler, padded with 20 minutes of Chaplin’s outtakes and new, interpolated footage featuring another comic actor. Chaplin instructs Burkan to take legal action to stop distribution of the adulterated film.

The problem Burkan faces is that neither copyright law nor Chaplin’s prior employment contract gave him any legal basis to do so. Burkan’s solution is to implicitly invoke a concept imported from the European continent: the “moral right” of an author to defend the integrity of a work against alterations that are damaging to an author’s honor or reputation. By presenting the four-reeler as a “Chaplin brand” picture, Burkan argued, the studio created “an unfavorable and disappointing impression on the public and damaged Chaplin’s reputation as a motion picture star and as an author and producer of photoplays.” But moral rights, as distinct from any economic rights an author may have under copyright or contract, were not recognized in U.S. law in 1916, nor was it likely that any judge of that day would embrace a proto-auteur theory of cinema.

Indeed, Chaplin’s former employer hits back hard against the notion that Chaplin’s fame rested on anything other than “his eccentricities and peculiarities as a comedian” or that he had any “reputation as an author or producer of motion pictures of any kind.” Far from the solitary genius toiling away feverishly on every aspect of the pictures that bore his name―an image cultivated by Chaplin and supported by the great weight of contemporary accounts―the Chaplin described in these legal papers is an indolent, money-grubbing prima donna reliant on the technical skills of others, working within the standard Hollywood factory model.

The browser who turns straight to page 99 and stops there will learn two important things about Adventures of a Jazz Age Lawyer. First, that it is narrative history, not a densely-argued monograph. It makes its case for the importance of Nathan Burkan in the coming of age of the institutions, attitudes, and archetypes that define American popular culture through leisurely and engagingly told stories of his work on behalf of clients whose influence and importance scarcely require any argument. Second, the reader will encounter one of the recurring themes of the book, that Burkan’s work to secure compensation, freedom, and control for creators in what Gilbert Seldes called the “seven lively arts,” work that was often bitterly opposed by producers and distributors and which required the conception and making of wholly-new legal paradigms, stands as a testament that the technological dislocation, creative ferment, and shattering of social taboos roiling popular culture today is not a singularity, but rather just one phase in a historical continuum that slowly lurches toward greater creative freedom, artistic achievement, and cultural diversity.
Visit Gary A. Rosen's website.

--Marshal Zeringue