This is the profile of a person and his chosen profession. Underlying both person and profession are unbounded enthusiasm for, and commitment to, music and the people who make it. The person is James Kendrick and the profession is the law, and specifically that highly specialized dimension of the law that deals with intellectual property.

Jim Kendrick was born in Queens, New York in 1952 and moved with his family to Levittown, Long Island where he attended public school and had his first musical experiences, taking lessons at an early age from his piano-teacher mother. In high school, he joined the band, at first taking up the clarinet ("I was godawful") and then switching to the oboe ("it was more in demand"). He was obviously good enough to be accepted by the Manhattan School of Music from which he graduated with a Bachelor's degree, and by The Juilliard School where he earned his Master's. As part of his studies, he also tried his hand at composition ("I realized pretty quickly I didn't have much to say") and found it a valuable discipline. As is the case with so many talented music students, he was able to put his abilities to the practical test by gigging in and around the New York area, performing with the National Orchestral Association under Leon Barzin, the Brooklyn Philharmonic (then the Philharmonia), and other ensembles. When the Broadway production of Porgy and Bess was recorded on RCA, someone pointed out that he was lucky to get this assignment because it had been 25 years since the last opera recording was made in the United States. Already then an excellent and intuitive listener, Kendrick thought, "Oh-oh, how old will I be when the next opera recording will be made?" and began looking for work, in addition to performing, that would nevertheless keep him in music.

Through his scholarship-assigned tasks at Juilliard's library, he had gotten to know some music publishers and distributors and soon went to work for one of them. It was an eye-opener and his first experience with the nitty-gritty and practicalities of music and its administration ("I always enjoyed detail like cataloguing. A Juilliard librarian once accused me of having a `picky brain."') Eighteen months later, having made something of a name and reputation, he was wooed by a larger music publisher and, during the next four years, completed a remarkably comprehensive apprenticeship, dealing with everything from warehousing, pricing, and shipping to publication, promotion, and contract management. It was this last activity, the details of sometimes very complex contracts and licenses, that began to fascinate him. The company's legal counsel, clearly recognizing Kendrick's bent, told him that, since he "could read a contract and not fall asleep," he should go to law school. Still retaining his full-time job, he applied to and was accepted as a night student by Rutgers Law School in Newark, and soon became recipient of the Saul Tischler Scholarship, given to the law student with the highest grade point average. His career path had begun.

In the middle of 1981, when he was about halfway through law school, he took a position in AT&T's intellectual property litigation group. It exposed him to some areas other than music that nevertheless fell into the intellectual property category. Finishing law school and passing both the New York and New Jersey Bar exams (1983), with several years of practical experience in the music business, the young Kendrick was an attractive and promising resource. Through a perfectly logical circuit of contacts, he came to the attention of the Leonard Bernstein office that administered the Maestro's many activities, including music publishing, and they were pleased to secure his services, introducing him to a bevy of Bernstein's associates. One of these was the head of Boosey & Hawkes — it was just at the time that Bernstein was vesting his publishing affairs in this firm-and before too long (1985), Kendrick became vice president of serious music at Boosey & Hawkes and named chief executive of the New York firm the following year.

A hundred years ago, scores of smallish, independent publishers of serious music flourished in America, each with its own profile and publication program. Today that number has been vastly reduced, with the remaining handful generally being large and powerful. Top executives tend to stay put in their jobs, having — unlike top executives of more commercial or industrial enterprises — nowhere to go from their comfortable perches. Having risen meteorically within the ranks of music publishing executives, Kendrick could have been expected to head up the American Boosey for the foreseeable future. In a surprising move, however, he elected to change gears after five years. "I had only practiced law for about two years," Kendrick recollects. "There were other things I really wanted to do, not instead of, but in addition to, music publishing." After a brief turn in another law firm, Kendrick was invited to head up the intellectual property division of the prestigious general law practice, Thacher Proffitt & Wood in New York.

His contacts and responsibilities are far-flung and his calendar is living proof of how small the world has become. His schedule may have him consulting on several continents during an ordinary work week, and it takes a good bit of manipulation to reserve sufficient time for his growing family who number, in addition to his wife, a 14-year-old boy from a previous marriage, a 2 1/2-year-old boy, and another child on the way at the time of this interview. In addition to office and home, Kendrick manages to teach a course at Rutgers that he, in fact, initiated 13 years ago, that school's very first evening division course in intellectual property, including such considerations as copyright, trademarks, and patents. He is clearly interested in education, in how students develop into lawyers, mindful that relatively few — like himself — enter the field to supplement an area of competence they already have. Most young lawyers, he points out, receive on-the-job training, rotating from specialty to specialty until they find their sphere of choice. "A lot of lawyers come out of law school, practice for a while and stop practicing. Law is great training, but not necessarily for everyone to do professionally."

It was time to ask Kendrick some specifics regarding intellectual property. What is it? "Intellectual property," he said, "is a form of property that is not tangible. It may exist in tangible form, like a CD, but what is involved is the creation that is on the CD, and the laws concerning the ownership, transfer, and protection of that property. It tends to include copyrights, patents, and to a certain extent, trademarks and some other things like trade secrets." Attorneys specializing in this area are sometimes known as entertainment lawyers, and typical matters coming before them might be the protection and exploitation of a creative work in a realm such as music or literature; or the employment of someone to create such a work, i.e., a commissioning agreement. Among the spicier (and rarer) items falling into the entertainment lawyer's bailiwick is plagiarism, when someone copies a work or a significant part of a work that has been created by someone else. It is often difficult to prove and requires a judge and jury to determine both the transgression and the damage.

Matters involving legal specialists like Kendrick are varied and often extremely convoluted. A famous case some years ago concerned the Bartók Concerto for Orchestra, often described as the last symphonic work to enter the world repertory and therefore of considerable financial consequence. Bartók died before the work was published, raising the question of what constituted a posthumous work, when it was published or when the contract for it was signed? (The court held that it was the latter, a decision that impacted on publisher as well as heirs.)

Questions concerning pop songs seem to crop up more frequently, not only because there are more of them, but because they are simpler in nature and therefore easier, knowingly or unknowingly, to copy. Kendrick makes reference to the case of former Beatle George Harrison's song "My Sweet Lord" and its similarity to the previously issued "He's So Fine." (Harrison lost but wound up owning both copyrights.)

A currently pending case has to do with a technology that did not exist when the work involved was created or its initial use licensed. Stravinsky's Rite of Spring, although in the public domain in the United States because we did not have a copyright agreement with Russia at the time of its composition, is protected elsewhere in the industrial world. Its copyright owners licensed Disney to use a substantial segment for the 1940 film Fantasia. The license expressly conveyed the right for movie house presentation. Fifty years later, Disney produced video cassettes of Fantasia for distribution throughout the world. While the copyright owners conceded that no rights existed in the U.S.A., they contended that the work was protected in every other Berne Convention country and that an unlicensed video had therefore been distributed for which damages were now being sought. (Second Circuit Judge Duffy decided that the contract restricted rights only to showings in theatres having licenses from the pertinent performing rights societies. The problem was that the court did not wish to make a decision involving the copyright laws of other countries, thus putting the copyright proprietor — Boosey & Hawkes — in the bizarre position of having to sue in all the individual countries in which the video is being marketed. Disney is appealing the grant of judgment on the contract, and Boosey is appealing the foreign copyright claims dismissal as this issue goes to press.)

Of major import, especially in the pop field, is the ownership question when the composer is at the same time the performer and there are two separate rights inherent in a recording, i.e., the copyright of the creation and the rights in the performance of that creation. This becomes even more tangled with the introduction of certain electronic techniques, often used in "rap sampling," the use of snippets from one performance in another performance. Who owns what? Who has the right to enjoin what kind of use? It may not sound awfully exciting to the layman, but when potential millions of CDs and dollars are involved, the scenario is suddenly fraught with tension.

More and more, with each new technology, questions arise as to how this tool may affect a copyright. Take the Internet. Technically, Kendrick points out, every time you turn on your computer and bring in a program, you are making a copy. Question: Should that copy have to be paid for? If so, how? If not, is a copyright owner not being deprived of his sole property (and often his sole means of support)? The on-line organizations are deadset against licensing (and paying), on the grounds that they are merely service providers, no more liable for what is being conveyed over their facilities than is the telephone company for what goes over their wires. But after a long period of squabbling, delay, and more squabbling, we have managed to produce legislation that at least addresses some of the issues — with many more still pending — opening some doors, and bringing us in line with European nations that, in the thorny questions of authors' rights, are leagues ahead of us.

An all-important question concerning authors, composers, and publishers is the period of protection that our law allows before a work falls into the public domain. Until 1978, we were the only country in the world to protect works not on the basis of an author's life but on the date of original publication. Thus, we actually penalized authors for their longevity, and seniors (like Irving Berlin) lived to see the works of their youth fall out of copyright. That changed on January 1, 1978 when we finally joined the rest of the world in protecting works for a period of 50 years following the death of their author. Of course, since then many countries have increased that period from 50 to 70, and it is widely thought that 1997 will be the year that the U.S. once again catches up to other countries in granting protection for "life plus 70."

Kendrick muses on "the incredible jump in the value of intellectual property," — another reason that a fair and reasonable period of copyright protection is of such immense importance. He talks about the profusion of cable channels, the availability of new media such as home videos, CD and CD Roms, and above all, the desirability of recycling older properties, of making them available in new media to new, up-and-coming audiencesthe case of Fantasia being but one dramatic example.

Another concept which energizes Kendrick is a doctrine called "fair use." "There is a common perception in the concert music industry that charitable purpose equals fair use. That is absolutely not the case. There isn't, to my knowledge, a single orchestra, opera or ballet company that is not a charitable organization from a legal point-of-view. If every such organization claimed that they had the right to use music for free, no one would be paying for music in this country. While performances under certain very limited circumstances might be exempt from payment, this is almost never the case when the public is invited. The key question with fair use, in addition to the nature of the work being used, is: what is the effect of this use on the economic value of this work? do the composer and publisher have a reasonable expectation to be paid for it? If, for example, music is being published primarily for the educational market, it is absolutely reasonable to be paid for it."

Among the most unusual and headache-producing legal developments of recent times — some say of all times! — Is the so-called GATT legislation and how it affects copyright. We asked Jim Kendrick to speak on it: "GATT stands for the General Agreement on Tariffs and Trade. It is part of an international trade protocol set up to diminish barriers to trade. Prior to 1989, the United States, alone among western industrial nations, was not a member of the Berne Convention. When we joined the Berne Convention, we did not agree to bring back into copyright protection those works which were still protected elsewhere, but had fallen (or had always been) in the public domain here, examples being works whose authors were dead for less than 50 years, or works that were never protected here because we had no copyright relations with the country of origin. On joining the Berne Convention countries, we began pushing very hard for countries, especially in Asia and Eastern Europe, to bring their laws up to international standards and to enforce them in order to eliminate a lot of the pirate videos, CDs and other products that were flooding the market. When the Russians announced that they were ready to join the Berne Convention, we inquired if they would grant retroactive protection to U.S. works, and they responded by saying, in effect, we will if you will honor the rights of our works.

"The result has been our agreeing to restore, or in some cases to grant for the first time, copyright recognition to works that had been in the public domain here for one of several reasons. They had to be foreign works; no U.S. works are involved in this restoration. They had to be out of copyright, either because they were not eligible for copyright — like the Russian works — or because they did not comply with formalities such as copyright renewals. So, as of January 1, 1996, any work which qualified under one of those criteria could be restored to copyright, and any new uses would be subject to full copyright protection."

The impact of what Kendrick was saying has been volcanic in U.S. publishing and music distribution circles. It was akin to a legal Lazarus rising from the dead: a treasury of 20th century music which had been in the public domain and therefore devoid of any proprietary rights was, with a pen stroke, being resurrected to copyright protection and assigned to exclusive copyright ownership. The commercial implications of this phenomenon have been only slighted mitigated by the fact that such restored works are entitled only to the period of protection that would have applied under the old U.S. Copyright Act, had protection then been granted: 75 years from original publication. Thus, a work like Rite of Spring, originally published in 1914, would have become free in the United States in 1989 even though Stravinsky, who died in 1971, has all his works protected elsewhere for at least 50, but mostly 70, years from his death date.

"The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries," reads Article I, Section 8 of the United States Constitution. The idea behind this legal incentive for creative people is even somewhat older, stemming back to a 1710 English statute known as the Statute of Anne. Just as attitudes about justice, and as scientific and technological developments have changed ever since, so has the law of the land. It is comforting to know that there are highly qualified practitioners like James Kendrick who devote themselves to the realm of intellectual property.