The work of composers, musicians, and record producers: whose rights?

The musical work concept grew increasingly important during the nineteenth century. Originally referring to material scores and treatises during the fifteenth and sixteenth centuries,Footnote ²² the concept was reformed in romantic and idealist aesthetics, subsequently sparking interest also in juridical circles where the idea of a composer's right became a topic of theoretical discussion.Footnote ²³ However, the development was not as straightforward as it might seem in the traditional history of music. Especially in the German lands, legal and aesthetic discussions concerning the nature of the musical work evolved mutually.

At the beginning of the century, legal issues concerned copying of scores and sheet music. The right to copy belonged to the owner of the written manuscript, the first owner of which was the composer, who might sell it to a printer who thereby became its rightful new owner. However, there existed no obvious concept of an abstract musical work. This is evident in the case of an unauthorized arrangement of Carl Maria von Weber's Der Freischütz as late as 1822. The court turned to none other than the famous author and music critic E. T. A. Hoffmann, who was also a trained lawyer, to give his view on the matter. According to Hoffmann a piano arrangement could not be regarded as a tampering with an abstract work, the way versions and translations of literary works were seen. Thus, the arranger had not committed any crime. Although Johann Gottlieb Fichte had defined the literary work as consisting of the author's ideas, the prevailing view of music was the infamous Kantian, that music did not consist of ideas but of playful sensations.

By the time of the Preussian Urheberrechtsgesetz of 1837, the legal and aesthetic discussions had reached a consensus that music was, after all, to be regarded as expressions of the composer's ideas. The result was a law that assigned the right to both printing and performances of musical works to the composer. As such the law implied an abstract work as a general underlying principle for the two types of practice. And although no theory had yet been consistently formulated that would define such a work, a legal practice was more or less settled by 1840.Footnote ²⁴ Nevertheless, there remained contradictory tendencies in aesthetic theory as well as in musical practice that would repercuss soon enough.

A significant tone had been set in the German discussion by the music theorist and founder of the journal Berliner Allgemeine Musikalische Zeitung, Adolf Berhard Marx (who, like Hoffmann, was also a trained lawyer).Footnote ²⁵ Marx summarized his views in the essay Die Form in der Musik in 1856. Of particular interest here is Marx's category of ‘singular forms’ (Einzelformen), the prototype of which is the free fantasia, but which also contains ‘those metamorphoses of established forms that have their origin in … the artist’.Footnote ²⁶ In brief, that which the composer creates, which identifies the musical work and thus underlie the legal claims to both print and performance, is the individual abstract form of the work. Thus, it might seem as if a clear-cut concept of the abstract musical work had finally been determined.

Nevertheless, as Marx also points out, ‘the characteristic essence of art rests precisely in its revelation of spiritual content – the Idea – through material embodiment’.Footnote ²⁷ The phrase reveals the Aristotelian tonic of Marx aesthetics, according to which form is immanent in matter. The composer would thus be limited to create only potential music, whereas it would take a musician (or perhaps a printer) to present actual music (in a similar Aristotelian vein Eduard Hanslick's famous dictum rules out the printer but maintains the musician when locating true beauty to ‘sonically moved forms’).Footnote ²⁸ It would take until 1892 until a more Platonic-oriented view on musical creation was presented by the influential legal scholar Josef Kohler. According to Kohler, the ‘multiple embodiment’ in sounding matter which the abstract work admits through its potential performances rather confirms the work as ‘an existing – ideally existing – spiritual being’.Footnote ²⁹ Thus, in Kohler's theory the performing musician is firmly and unmistakably degraded to a contingent means, since the abstract work exists ideally, without ever having to be materialized.

Although ontological specifications hardly surface in the acts of law – and neither are legal scholars in full agreement on the ontology of music – a work concept such as Kohler's strengthened the theoretical basis for legal practice in the direction of a Platonic work that, once created, exists beyond time and space regardless of ever being played or otherwise materialized.Footnote ³⁰ At the turn of the twentieth century, the reified abstract work is thus consolidated as a statutory benchmark against which to measure music's aesthetic and economic values, not only in Germany but also abroad.

A driving force in this process was the international harmonization of legal principle through the so-called Berne Convention of 1886 and its subsequent revisions in, for example, Paris (1896) and Berlin (1908).Footnote ³¹ By the time of its institution, recorded sound was already a reality (Thomas Edison had invented the phonograph in 1877). However, since it did not become the major content of sound recordings until the turn of the century, music on record was considered by the Berne Convention for the first time in the Berlin revision of 1908, specifying in its article 13 that ‘[a]uthors of musical works have the exclusive right to authorize: (1) the adaptation of these works to instruments serving to reproduce them mechanically; (2) the public performance of the same works by means of these instruments’.

Of particular interest here, in that it furthers the reification of the work by relentlessly loosening its ties from the performers and also sound producers, is the Berne treaty revision in Rome in 1928 and the heated discussions that followed. In the 1920s, playing of recorded music in public venues, enabled by the new electrically amplified loudspeaker as well as broadcasting through the new radio medium, initiated a discussion apparently at odds with the conventional view. It involved various parties from musicians’ unions to radio and gramophone companies and concerned a right for the musicians along the lines of the composers’. In other words, a musicians’ right.Footnote ³² The most obvious model for such a right was the recent German Urheberrechtsgesetz of 1910, which accorded a right to performers as ‘authors’ of their recordings – given the contribution was considered a substantive adaptation of the work performed. This proviso in practice meant that it was a right that only benefitted soloists. Other members of the orchestra had no right to the recording whatsoever, a circumstance the musicians’ unions wanted to change to the benefit of their members.Footnote ³³

However, the proposal for a musicians’ right met with strong negative reactions. For instance, the lawyer Fritz Smoschewer claimed that were the proposal to be accepted, ‘[c]reating artists would be at risk of ominous commercial, moral, and even artistic dependency on reproducing artists’, whereupon publisher Alexander Elster concluded that ‘[r]eproduction is to be fundamentally separated from production’.Footnote ³⁴ When the issue was to be decided for the 1928 Rome revision, it was predictably turned down. And as the 1930s commenced, there was no international agreement on musicians’ rights.

Instead, the initiative for an extended authors’ right to music was taken over by the recording industry, which came together as an international organization, the International Federation of the Phonographic Industry (IFPI), in 1933. To forward their interests, IFPI called for full protection of recordings by the Berne Convention, its foremost lobbyist and founder Amadeo Giannini arguing that ‘[a]ll the essential elements for disc production, both technical and artistic, become elements of a complex work, where they harmonically blend into one: the disc’.Footnote ³⁵

As such the record producer is to be considered as a creative ‘author’ in its own right, whereas the musician is degraded from creative interpreter to mere executor.Footnote ³⁶ The plan was to present a draft at the upcoming conference in Brussels in 1935, for yet another revision of the Berne Convention. However, the conference was postponed, and when it eventually got off the ground in 1948, after the Second World War, IFPI's draft for assigning an author's right to the record producers was also turned down. In lieu, the record companies were granted a right to compensation for the public use of recordings, whereas the singers and players – who through their new International Federation of Musicians (FIM) had already cancelled their claim to an author's right – were moved down the hierarchy of what was to be called ‘neighbouring rights’, whereby their lot was to negotiate with the positionally stronger IFPI for monetary compensation.

From collective audiences to solitary listeners: activity or object?

Singers and players were in a precarious position during the interwar years. So too were the listening public. Commenting on the concert life in the Weimar Republic in general and the city of Frankfurt am Main in particular, the composer, conductor, and organizer of concerts Paul Hindemith lamented in 1922 ‘the almost lost community between performers and listeners’.Footnote ³⁷ Hindemith's problem, which he shared with contemporary writers as different in theoretical outlook as Theodor Adorno and Heinrich Besseler, concerned both social and aesthetic matters, both what the musical works were ‘for’, and what listening to their performances was ‘about’. When, for instance, listeners complained about the dimmed lights during concerts, the complaints had their source in the belief that the general purpose of concerts were social unity, which required enlightened visibility, whereas the lights were dimmed to highlight what the concert performance was all about, the musical work.Footnote ³⁸

But whereas listening along formalist lines was not as widespread in the concert halls as its proponents would assume – other commentators complained about the prevailing romantic tendency of hearing music as an emotional outpouring of the composer's soul, could the music at all be heard above the ‘rustling of sandwich wrappers and candy bags’ among the audiencesFootnote ³⁹ – the most profound social change quite likely appeared at home, rather than in the concert hall. This change also quite likely occurred in the listening to recorded music, or as it was commonly put, in ‘playing the gramophone’. Notably, this was a change in the ‘community between performers and listeners’ (as Hindemith saw it), but equally significant, between the listeners themselves – aspects all furthering the reification and commodification of music.

In the interwar home, the piano was still the dominating sign of cultural prestige. The prize of a grand piano made it a privilege of the upper classes, whereas an ordinary piano was hardly affordable for a working-class home.Footnote ⁴⁰ Widening the focus from central Germany to include a northern neighbour such as Sweden, for which German culture was a model, reveals an increasing presence of the gramophone, predominantly in middle- and to some extent working-class homes. Much less so in the upper-class salons, where it was often despised as a cheap surrogate for ‘real’ music.Footnote ⁴¹ As a commentator in the Swedish journal Hemkultur (‘Homeculture’) put it, ‘there is much in hearing [höra], but far more in doing [göra] music. Only the one who, in the capacity of being a singer or instrumentalist, performs music in some form, reaches a deeper personal relation to its values.’Footnote ⁴² The target is the gramophone and the purportedly passive listening it promotes. An even more alarming tone is voiced in the journal Nutidens hem (‘The contemporary home’), according to which the gramophone has ‘deadly threatened’ to turn ‘musical activity … and joyful creativity’ into ‘languid passivity … and unproductive receptivity’. Fortunately, though, the writer finds rescue in new smaller piano models, which promise a future for home playing also in contemporary modern flats.Footnote ⁴³

To evade such accusations of passive hearing, and match with domestic playing and singing, the gramophone was often spoken of as an instrument to be played. And it was to be played among family and friends. The collective ethos is particularly well illustrated in a 1928 advertisement in the city of Göteborg: ‘[i]n good company … “the new gramophone” is at the centre of things’.Footnote ⁴⁴ However, this collective practice was already being challenged. Particularly significant is the shift one can notice in the press during the interwar years, from describing and reporting gramophone playing to that of listening to records,Footnote ⁴⁵ especially in the new genre of the record review. Having appeared in Sweden for the first time in 1923, record reviews occur regularly from 1926 in the Stockholm daily Svenska Dagbladet under the headline Grammofonnytt (Gramophone News), followed by both other dailies and periodical magazines.Footnote ⁴⁶ Although the reviews are initially dominated by reports of popular records, a new national standard is set by Svenska Dagbladet when recordings of classical music are reviewed by professionally trained critics towards the turn of the decade. The record review thus increasingly bestows the gramophone and its records with an aura of scholarly seriousness and cultural prestige. In addition, the record review implies an entirely new way of listening to recorded music. Not only does the writing of a review require repeated listening at will (which is not possible in a concert situation), but it also requires an undisturbed listening which more or less precludes listening in company with one's family and friends. What the review of recordings both implies and reinforces is thus a solitary listening to music which is not only new, but also had hardly been possible before the advent of sound recording. The tendency can be noted in comments such as in critic Kajsa Rootzén's review of pianist Arthur Schnabel's recording of Franz Schubert's Moments musicaux on His Master's Voice: ‘it is as if such a style of playing were made for intimate listening in privacy’.Footnote ⁴⁷

In tandem with this normalization of solitary listening there seems to be a shift in the apprehension of what it is that the listener hears, how the listener makes sense of the recording. Regarding the approximately sixty occasions in which records with classical music were reviewed in Svenska Dagbladet between the years 1923 and 1939 (several records were reviewed on each occasion, many times also including popular genres), one can observe a shift in emphasis between three different ways of referring to the recordings. The first, dominating from the outset to around 1930, refers to the recordings as ‘reproductions’ (reproduktioner), or documentations of a past occasion. For instance, in the review of Hans Knappertsbusch's Odéon recording with the Berliner Staatsopernkapelle of Mozart's Symphony No. 40, the reviewer Helge Malmgren concludes that ‘[t]he recording has on the whole succeeded well, although the sound of the violin is a little sharp in forte and high register’.Footnote ⁴⁸ In other words, the recording is evaluated as a representation of an original sound event, the musical performance.

The second way of referring, dominating until the middle of the decade,Footnote ⁴⁹ focuses on the quality of the recorded performance (rather than on the recording of the performance), that is, the musical interpretation, as for instance in composer-critic Moses Pergament's review of two recordings on HMV and Odeon, by Jascha Heifetz and Bronislaw Hubermann, of Edward Elgar's La Capricieuse: ‘[o]ne can compare bar by bar, if one wants to. Heifetz plays the piece entirely brilliant. Hubermann is not inferior, but in addition puts more emphasis on the character given by the title – La Capricieuse’.Footnote ⁵⁰

Finally, at the end of the 1930s, the reviews increasingly focus on the work that is recorded. To the extent that the quality of the recording and the performance is mentioned, as for instance in the quoted mentioning of Arthur Schnabel's intimate playing, it is mainly as a means to communicate the specific composition heard, which is to say the musical work. This does not mean that the term is always used, although the concept is implied, as in the following brief quote, once again by Kajsa Rootzén: in playing Maurice Ravel's ‘Forlane’ and Claude Debussy's prelude in A minor, Arthur Rubinstein has an ‘almost bitingly firm grip on the material’.Footnote ⁵¹ Less focus on the performer and more on the work itself is exemplified in the review of Ravel's String Quartet in F major six months earlier, wherein Rootzén observes that ‘[t]he work is so rarely performed on our scenes, that it can be wise to have it [the work] available in a gramophone recording, as for instance that of the Lener Quartet's distinguished interpretation’. Significantly, nothing more is said about the interpretation, although the work is said to harbour ‘a devotion and sincerity that feels enriching throughout’.Footnote ⁵² A similar focus on the work, at the expense of the performance, is her review of Carl Nielsen's Sonata in A, which after commenting on the work in positive terms ends by pointing out that ‘[t]he work is available in a relatively recent recording, beautifully and sensibly interpreted by Emil Telmanyi and Christian Christensen’.Footnote ⁵³

One could perhaps try to account for these changes in listening to music records by noting that, by the turn of the decade, recordings are made with electrified technology enabling the registration of an increased amount of audible detail, or that the three ways of reviewing in Svenska Dagbladet can (largely) be accredited to three different reviewers replacing each other (in temporal order: Helge Malmgren, Moses Pergament, and Kajsa Rootzén). However, quality of reproduction was a central marketing argument already during the heydays of Edison's phonograph and would unlikely lead to any sudden conceptual change concerning the music listened to.Footnote ⁵⁴ Nor is it plausible that the changes are merely the result of personal writing styles or preferences on the part of the reviewers. And the change is so striking that it can hardly be explained away as a simple turn of phrase.

More relevant is that Rootzén's focus on the work resonates with a contemporary Sachlichkeit tendency, voiced for instance by Igor Stravinsky's call to reduce the interpreter's impact on the performance and ‘to see what is really in the score’.Footnote ⁵⁵ In Sweden, Rootzén had an important ally in her colleague and concert critic Julius Rabe (who did not review records). Rabe's objectivist leanings shine through eminently in a short essay in a volume dedicated to the chief-editor of the daily Göteborgs handels- och sjöfartstidning, headlined ‘To Write About Music’ (Att skriva om musik – that the topic concerns writing about music in daily criticism is obvious).Footnote ⁵⁶ To write about music, Rabe says, is to describe what happens in a composition. Although the reviewer must take the composer's creative process into account, there is no mention whatsoever by Rabe of the performance of the music, how it sounds and is played. And equally absent is any mention of the listener's experience (thus contributing to the reification of the musical work) – except that the listener should, after considering what the critic writes about the music, achieve a ‘richer experience of the work and a deeper understanding of the composer’.Footnote ⁵⁷

And what way of listening could be better suited to the task than solitary home listening, when there is no one else around to disturb one's focus, and when the unique form of the work can be grasped through repeated listening? Rabe would not have agreed, however, as neither Adorno nor Besseler did at the time, all three despising music recordings as an inferior surrogate for the ‘real’ thing.Footnote ⁵⁸ But although Adorno would change his mind later in life, speaking favourably about solitary listening to recorded music as ‘a perception that is comparable to reading’,Footnote ⁵⁹ its advantages were approved by Rootzén and other record critics already in the 1930s.

Copyright and reification: the discursive hegemony of the work

The two previous sections describe crucial changes in discourse about music during the interwar period. The practices of composing, playing, listening, recording, law-making, and so on make up a field of meaningful relations between various subjects (composers, players, listeners), objects (recordings, musical works), and types of practice (concert performance, home playing, solitary gramophone listening). It can be described as a field in that it gathers participants who act together socially, that is, cooperatively or competitively in similar (yet different) activities by similar (but not identical) means. In making sense of interactions and practices, boundaries and demarcations are drawn, or articulated, both internally (e.g., what are the correct ways of doing things, and who are entitled to do what) and externally (e.g., determining what belongs to the articulated practices, what does not). Because of the multiplicity of interests involved, from individual to group levels, and with new participants successively replacing the older, these boundaries and demarcations are never settled once and for all. They are continuously unsettled and contested. Discursive articulations such as those discussed here can therefore be seen as specific ways, or attempts, to stabilize social order within the field – whether this involves support of the pre-existing order or its questioning, contestation, and ultimate replacement by a new order.

Central in this articulatory practice – of fixating meaning in discursive fields by means of specific discursive logics and regularities – is what Laclau and Mouffe describe as ‘the construction of nodal points’:Footnote ⁶⁰ ‘Any discourse is constituted as an attempt to dominate the field of discursivity, to arrest the flow of differences, to construct a [meaningful] centre [of practice].’Footnote ⁶¹ As already suggested, that which constitutes the central and unifying node of the practices under discussion here is the work. As an aesthetic and music-theoretical concept, the work has a winding history. When it enters copyright and authorship legislation, it serves the purpose of unifying claims to rule over both print and performance, such as for instance in the proposed Platonist theory by Kohler.

Of central importance is the discourse theoretic explanation of how the work, given the observed copyright regime, determines the subject positions available to the participants of the field to identify with. In contrast to how the field was structured in, say, the ancien régime before the end of the eighteenth century, when a composer often was a performing Capellmeister and credit was assigned to a wealthy benefactor, it has by the interwar years of the twentieth century become inhabited by distinct composers and musicians. This is to a considerable extent a result of the discursive order which sets up a ‘system of differential positions’,Footnote ⁶² according to which composers and musicians are related but basically distinct. Composers create musical works and musicians perform them (musical performance being an ontic correlate to the ontological materialization of the created ideal work). One can of course be both a performing musician and a creative composer, but one cannot be creative by being simply a musician. The two identities gain their respective meaning from their mutual difference.

It is striking how the work, once it has attained a nodal position in the discursive order of copyright, as well as in the larger field of musical practice, and eventually becomes a cornerstone of law, is not being seriously contested by the participants. When the recording industry unsettles, or dislocates, the musicians’ practices to the extent that being (i.e., identifying as) a musician will not enable making enough money for a livelihood, the musicians do not question copyright as such. Instead, they attempt a redefinition of their own identity and practice. They too want to identify and be identified as creative composers (or, using the terminology of the law, as ‘authors’), and identify their own practice as creative.

What the musicians in this case do not seem to understand is that their demand articulates an ‘antagonism’ that threatens the entire discursive order.Footnote ⁶³ Should the musicians get creative credit it would not only dissolve the differential logic which distinguishes their identity from that of the composer, but also threaten the identity of the created work. This is because musical creation, according to the metaphysics of the copyright regime, is a unique event and can therefore not be repeated like performance is repeated (only a fool would request a da capo upon God's creation of light).

But as we have seen, the lawmakers react strongly against the antagonistic threat to the identity of the composers and their work, turning down the musicians’ proposal (as well as that of the recording industry a few years later, which is similarly antagonistic). The emphatic force by which this rejection is executed is telling. The proposal is described as entailing not only a commercial subordination of the composers to the musicians (the latter disparaged as ‘reproducing artists’), but also a moral and artistical subordination – thus the statement that ‘[r]eproduction is to be fundamentally separated from production’.Footnote ⁶⁴ Although the antagonism never develops into any open ‘political’ conflict about the rights of the musicians vis-à-vis the composers (and the status of the musical work), the case reveals the modus operandi of hegemony in its recourse to a fundamental separation between the two groups.Footnote ⁶⁵ From being articulated differentially against each other, composers and musicians are now antagonistically opposed.

This move, this change of the type of relation of the discursive logic (from difference to antagonism), amounts to no less than an ontological contradiction, a fundamental rejection of the musicians (or rather the proposed musicians-as-creators identity). By the same move the composer-identity changes from a ‘differential self’ to an ‘equivalential identity’.Footnote ⁶⁶ This means that rather than distinguishing itself by difference, the composer may now relate to otherwise different positional identities as equivalents, and thereby recruit them as supportive forces in a uniform front against the threatening and antagonistic ‘other’ (by refraining from taking the musicians’ side, the industry silently lines up in the ‘equivalential chain’ of the composers).Footnote ⁶⁷

The common banner for this new order is, unsurprisingly, the musical work. However, to function as a unifying symbol for the fractions whose differences are temporarily bracketed for the sake of equivalence, while at the same time fundamentally rejecting the self-proposed musician-as-creator (and later the sound-producer-as-creator), the work cannot face this musician-as-creator as a ‘different’ identity, since it would then reciprocally affirm the subject position of that which it rejects, that is, the possibility of a work repeatedly created by performing musicians.Footnote ⁶⁸ To avoid such a self-effacing affirmation, the conceptual content of the notion of the musical work must be withdrawn, whereby the work is transformed into a more or less ‘empty signifier’.Footnote ⁶⁹

Equally important, by turning into an empty signifier, it (the nodal signifier ‘musical work’) may unite different conceptions, without the differences causing conflictual distortion (which gives an explanation to the paucity of theoretical detail in the Berne Convention and the corresponding national acts of law). One can thus imagine how the copyright regime, had there been an extended open conflict, could have enrolled not only legal scholars subscribing to different ontological theories (Kohler's is just one among several), but also the sound producers of the recording industry (following Giannini of the IFPI), and even aestheticians (Hanslickean or other), music critics, and listeners. Given such a scenario, the question unavoidably becomes how the troops could be coordinated. Who would lead the battle against the common enemy, against the threatening creator wannabe, against the musician?

Laclau's principal answer is that although ‘the equivalential logic tends to do away with the relevance of all differential [meaning], this is only a tendential movement that is always resisted by the logic of difference which is essentially non-egalitarian’.Footnote ⁷⁰ In other words, backed up by law – in the acts of which a tactical emptiness is preferred to ontological clarificationFootnote ⁷¹ – the copyright regime would show the way, as it does when the musicians’ proposal is turned down in Rome in 1928 and the record producers’ in 1948. And such an order, ‘by which a particular content becomes the signifier of absent communitarian fullness is’, as Laclau puts it, ‘exactly what we call a hegemonic relationship’.Footnote ⁷²

Record reviews and the fantasmatic logic of active listening

The work is a nodal point in the discursive web of musical significance, establishing a hegemonic order in public practice according to the logic of equivalence. In contrast to the logic of equivalence, the logic of difference articulates exclusive subject positions for the participants in the field to identify with and be identified with by others, as either creators or as non-creators. Differentiated from the non-creative musician is the listener, that is, the subject position of the listener, and (by extension) the social practice of listening. Both subject position and practice change during the interwar years. Like the transformation of the musician identity, this transformation of listener and listening practice also occurs in relation to the work, the nodal point which ultimately connects the solitary listener with the hegemonic regime of copyright and its statutory reification of music.

At the outset of the interwar years, many connoisseurs and music lovers among the upper classes in urban centres had a double music-identity inherited from the nineteenth century. As concertgoers they were part of a public audience gathering regularly to listen to music by the local orchestra, whereas at home they were regularly playing together on private and semi-private occasions. These two identities did not interfere since they were performed in different social circumstances and corresponded to different but complementary social practices (e.g., the competence as an amateur musician at home nurtured a technically informed listener at the concert).Footnote ⁷³

In the beginning, domestic gramophone playing was at odds with these practices and provoked negative reactions.Footnote ⁷⁴ However, this began to change with the inception of the record review. The three ways of referring to the recordings – as documentary reproduction, as interpretive performance, and as work presentation – are telling in this regard. As documentary reproductions, the recordings can be seen to provoke an antagonistic reaction, to the extent that the kind of listening they invite is directed towards a mechanical product (the record and its playback equipment).Footnote ⁷⁵ That the practice is marketed as a social playing of the gramophone did not convince its detractors.Footnote ⁷⁶ Not until the reviews began to focus the work does the practice become accepted as an alternative, different way of listening.

However, there was more to this change. The reference to the work was not simply a change in journalistic lore. There was something at play that justified and motivated the new practice of solitary listening, something which cannot be fully explained by reference to the logics of equivalence and difference. It is also possible to see how a ‘fantasmatic’ logic articulated discourse, neither differential nor equivalential, but future looking, thus ‘providing an image of fullness, wholeness, or harmony’.Footnote ⁷⁷ In addition to the cultural prestige and aura of scholarly seriousness with which the record review increasingly bestows the gramophone and its records, this fantasmatic logic accounts for a certain cultural value that the reviews assign to the recordings. With this cultural value secured, the recordings turn into attractive and enjoyable objects for the listener to acquire, while simultaneously normalizing the practice of solitary listening.

Although tied to the nodal point of the work, this fantasmatic logic does not take the same form in the practice of listening as it does in copyright discourse. In the practice of solitary listening, the fantasmatic logic appears in the form of a certain narrative. This is a narrative that can be found in various versions in both scholarly and popular publications, in both concert and record reviews. It notably appears as such, for instance, in the previously mentioned journals Hemkultur and Nutidens hem, neither of which is particularly devoted to music (thus indicating that the fantasmatic narrative was both common and widespread outside the specialized corners of professional critics, composers, and performers).Footnote ⁷⁸ According to this narrative – and in line with the binary structure of narrative – music's values can only be attained through active singing and playing, not through passive listening to recorded music. This is a version of an ancient logic ascribing to each subject, object, and practice its well-defined place in a harmonious cosmic order. It is a hierarchical order which subjugates the social beneath the heavenly and the passive below the active, the latter distinction significantly configured as feminine and masculine. Whereas passivity is associated with transient receiving matter, as per the feminine maternal body, activity is associated with productive masculine power and a promise of ideal eternal life. The logic appears in many guises throughout the centuries. A particularly well-known instance is Eduard Hanslick's nineteenth-century treatise on the musically beautiful, which indignantly pictures the negative side of the binarism, the ‘passive receptivity’ exemplified by the ‘music-intoxicated lady’ Bettina von Arnim, who ‘always sees an unfathomable product of nature in a composition, not a human artwork’.Footnote ⁷⁹ In other words, the beauty of music, that which makes it a true art, is ideal, masculine and active.Footnote ⁸⁰

A fantasmatic narrative can thus focus on either (or both) the positive or the negative side of its articulating binary logic, ‘providing a promise of a fullness or harmony to come’ or ‘a threat to an already existing fullness or harmony’.Footnote ⁸¹ Of relevance here is that home singing and playing rested on such a binary distinction. And it is this particular fantasmatic logic of active and passive that the new social practice of solitary gramophone listening, implied by the record review, comes to terms with through its changing ways of referring to the recordings. Put differently, the fantasmatic logic points out the direction for the new practice of listening.

Considering the documentary way of referring, it thrived on the pseudo-scientific marketing claims of the day, that recorded sound is perfectly natural and life-like. What the listener (supposedly) hears is, by implication, a truthful representation of a real performance. This was the object offered to the listener to gain subjective fulfilment. That it did not catch on can now be explained with reference to the fantasmatic logic according to which activity is a supreme value to be pursued. To the extent music recordings are documentary, the represented activity (that which the recording is ‘of’) has for obvious reasons already happened. And this circumstance inevitably turns the listener into a latecomer, a passive auditeur (like Sartre's voyeur devoid of any existential affirmation). Without the promise of power to act in praesentia, this is simply not an attractive subject position.

What about the record reviews’ focus on performance? As it turns out, the focus on performance tends to appear in connection either with the documentary way of referring, whereby the performance is that which is represented, or more commonly, with the third way of review whereby the performance is but an interpretation of the recorded work. That is, the reference to representation appears in connection with a reference to the work.

The third way of referring to music recordings in the reviews is characterized to a significant extent by regarding them as not being recordings at all, but as presentations of works. Although the music recording is to some extent still heard as a representation of a performance, it is all the more importantly and essentially re-conceptualized as a making present to the listener of a musical work.Footnote ⁸² A telling example of this way of both referring and listening is Rootzén's review of the Telefunken première recording of Robert Schumann's Violin Concerto in D minor, with George Kulenkampff as soloist and Hans Schmidt-Isserstedt conducting the Berlin Philharmonic. Rootzén describes in detail how, after

The point here is not that of a listener observing or even being imaginatively transferred to a past performance event in a concert hall, but rather that of listening to the work ‘itself’ in the here-and-now of the actual listening situation.

This is obviously a different type of object – the musical work itself, instead of its performance – as well as a new subject position – the subject is invited to identify as a solitary listener to musical works – than what is offered by the documentary mode of discourse. And there is work to be done too for the male-empowered listener (here interestingly exemplified by Rootzén, a woman). The reified musical work must be distilled from the sounds in the very act of listening, which requires an intellectual know-how, an analytical expertise, vouched for by the scholarly critic reviewing the records. However, this is not a new task taken on by the record reviewer, but a practice honed by music critics at least since the days of Hanslick and continued by Rabe. And it is a practice which assures a position on the masculine side of listening by requiring active contemplation of the work, even when the imperative is transferred from the concert audience to the solitary home listener – the former, according to its interwar critics, too prone to passive distraction in the ‘good company’ of its audience friends.

Thus, one can conclude that the fantasmatic logic remains more or less unchanged, retaining the ancient active/passive dichotomy. What is new is the practice of solitary home listening. And since it can be justified with reference to active contemplation of the work – which is what the record reviews show the reviewer to be doing – solitary listening to recorded music will eventually find its way to what Rootzén calls the ‘cosy corner’ of the modern living room.

Concluding remarks: a discursive logic of reification

Music changed during the twentieth century. From having been commonly regarded as a collective activity, it was now increasingly heard, conceived of, and talked about as a private object – object of the individual listener's private experience, while owned by the composer as private intellectual property. This is not a change confirmed by any concessions that certain actors may have voiced publicly or in private. Rather, it is a conclusion that is drawn from analysing the articulatory practices that strove to ‘dominate the field of discursivity’.Footnote ⁸⁴ More specifically, it is a conclusion drawn from the role that the concept of the work came to play in the discursive field of music. The discursive orders of copyright and of the record review, the latter of which is a subset of a larger discursive ordering of solitary listening to recorded music, can both be seen to form around the concept of the work, which not only structures each area of practice, but also ties them together (by the same token it is assumed that various aesthetic, educational, and even marketing discourses are joined together by being structured around the same node).Footnote ⁸⁵ The discourses thereby constitute a ‘totalizing horizon’ for the subjects positioned within it.Footnote ⁸⁶ In other words, discourse becomes the ‘primary ontological level of the constitution of the real’,Footnote ⁸⁷ and thus determines what music is.

Within copyright, the analysis shows how the work concept entails the articulation of a fundamental distinction between the creative and the non-creative, which as it attains hegemonic status through the subsumption and reduction of differences in an equivalential chain, ultimately promotes the composer to a higher rank than the performing musician. In the record reviews, the way of referring to the work as an object immediately heard answers to specific fantasmatic logic that promises subjective fulfilment (rather than contributing one affordance among possible others). The logic at once positions the subject as a solitary listener, as well as ennobling this listener as an actively, characteristically masculine, contemplating expert capable of enjoying the work. However, there is a loose thread yet to be collected. It concerns the concert audience, the public half of the double-sided nineteenth-century music-identity, and what it reveals about its solitary defiant.

At the outset of the interwar years, solitary home listening stands in stark contrast to concertgoing. The latter is justified by its edifying communal qualities, while the former is regarded by its detractors as blatantly asocial. As a countermove to this impeachment, the social logic of the record review promises the gramophone listener a route to the immaculate work via not only solitary but also repeated listening, neither of which is available in the concert situation, but which together can be cashed in as a ticket to the Parnassus of the muses, the world of the musical work.

However, the admission to the sweet spot of the work comes with a proviso and an under-the-counter charge. The proviso is that it is a ticket to a sequestered listener's seat, not to the staged throne of the timeless genius-composer (the legal rights-owner, the creator of the work). This might not seem such a big deal, but the charge amounts to nothing less than a subsumption of the record review and the solitary listening practice under the copyright regime, the latter of which is appointed as the hegemonic reference system for the nodal point of the work. The compliancy of solitary listening to copyright, as it appears in the discursive practice of the record review, resides in this repeatability of listening. Central to the practice of listening to recorded music, repetition turns out to be exactly what original composition of reified works is not. Listening is not creative. To the contrary, according to copyright, creation is unique, it cannot be repeated.

What the analysis finally suggests is how two social practices coincide with a third. Solitary listening, which requires the work to affirm its subject as active, sets the listener in a relation of fundamental indebtedness to the creative originator of the work (the subject of creative originality as posited by copyright discourse) in a way neither home playing with friends nor concert listening does (the first active through playing, the other collectively edifying). Given this account it is hardly a surprise that the social practice with which both listening and composing coincide is the practice of commodity exchange – the reified work now being the valuable signified in a communication chain between a producing sender and a consuming receiver – although in real life the coincidence goes more or less unnoticed (in the temple of the aesthetic, economic transfers are stashed). Equally unnoticed is the robustness of the discursive logic. When appearing in social practice, the reciprocal features of solitary listening and creative composition connect in terms of difference. But should the legislated regime be contested, should solitary listening not obey copyright order, equivalence relations will take over and institute an antagonistic divide. Thus, the reification of the musical work rests safely within the order of hegemony.