THE LAW AND THE CRITICS
MIGGREAT artists and most interesting performances pass, and must continue to pass, unnoticed by me as a critic because they are under the auspices of gentlemen who have threatened me with actions when | have pointed out imperfections in their enterprises, though, most inconsistently, they never sent me a ten-pound note
when | praised them."-
G. B.
SHAW
'4 MONTH or two ago an interesting libel case was heard in Auckland, between a singer, Madame Mae Brodie, and a newspaper, the "New Zealand Observer." The paper, in the course of Critical comment on a recital given by the singer, published comments which she regarded as damaging to her reputation, and a jury awarded her £400 damages. The case may have reminded some readers of an action taken in Auckland in 1913 by John Fuller, against the "Triad," a critical periodical of the day, and so we have secured the contemPorary account of that case, and reprint it below. Following it are the accounts of two other cases where artists have sought monetary compensation for what they claimed to have suffered at the hands of critics. One comes from the *nineties and it is reported by G. B. Shaw, who took an interest in the fortunes of fellow music-critics of the day. The other case is that of the three Sitwells, who won £350 each from "Reynolds News" in 1941. * % aS THE FULLER CASE HERE is the article which appeared in the Triad in March, 1913, criticising a Sydney journal called The Theatre for its uncritical policy and for overprais"Even poor old John Fuller has had it ladled out to him. It is not fair to encourage an old man like that in the delusion that he has a voice . . . . The fact of the matter is that while John had a shrill and tuneful enough little pipe years ago, it is now not much more musical than a pig’s whistle. He never was a singer of any special merit, because his voice was not properly trained, and he never knew just what to do with it. Otherwise John Fuller is an original and humorous old bird, and when he wastes @ penny or runs the risk of losing sixpence you may expect to see the stars drop. Some months ago in Auckland he st a wellwn journalist in the street. ‘Come up and hear me sing,’ he said. Old John knew in his heart that the writing man could not possibly want to hear him sing. However that may be, the writer said he would call up. ‘I’m pretty busy,’ he said, ‘and I’ve been pretty seedy. Still I’ll try to look in on Sat- urday night.’ At that, John pursed his lips. ‘Rather big business on Saturdays,’ he said. Now John Fuller is perhaps the only man now prominent in the show business in Australasia. who would be quite capable of that d of managerial meanness. But that is John all over, and John will never change, this side the rolling Jordan. His close-fisted-ness doesn’t matter. Because that is, after all, his own affair. But ah, if somebody could only persuade him not to ‘sing’ any more." That appeared in March, 1913. Six months later, C. N. Baeyertz, editor of The Triad, found himself defending an action for £501 damages for libel (a claim for less than £500 would not go before a jury of 12). We condense the
PRPPPPPIPPPPPPPLPPLPLPPPLAS report of the case as telegraphed to the New Zealand Times, August 21, 1913: Fuller and his counsel (W. C. McGregor) put the case for plaintiff .. . successful concert singer for many. years helped in Oratorios, no fewer than 10 items a night . . . voice as good as ever, and so on. Then Sir John Findlay, defending The Triad, asked Fuller whether the article would injure his professional engagements. "Certainly! To tell the public my voice is like a pig’s whistle: will injure me." "To write in a bantering tone?" "Bantering! Bantering! It’s the most malicious I have ever heard in my life." "Well you are the most sensitive musician I have ever met." His Honour Piqued Here His Honour broke in: Do you suggest that you lose anything at all by treason of the publication? Fuller: If the article had been widely read, certainly. His Honour: You have been singing at your own theatres for five or ten. years, and you say that your engagements will suffer? Fuller: What I suggest, you honour. His Honour: Answer the question. Do you suppose that your engagements will be affected?
Ree I PIO? SRILA PLL POLO LAP IPP Fuller: If I had no theatres, no manager would engage me after reading that article. His Honour: You are not answering the question, Wir, and you have gone very near contempt of Court. You must. answer quéstions when I command. However, you refuse to answer, and I will leave the jury to draw their own inference. 5 The question was repeated, and plaintiff said that if he was bankrupt tomorrow his‘’voice would not now be an asset. It was not thin and nasal, "It comes out very easily," he said. Here counsel for defendant (Sir John Findlay) resumed his cross-examination: "Like the song of a bird?" "Yes, like the song of a bird." "If anyone said to you that, your voice was thin and nasal, how would you prove it was not?" "I would sing to him" (Laughter). "Do you know what a pig’s whistle is?" "It is very objectionable." ‘Do you know that the dictionary definition of it is ‘a low whisper’?" "TI do not, and I won’t admit that the author is right." "You should look up the meaning of the word before claiming £501 damages." :
When the cross-examination of plaintiff had concluded, Mr. McGregor (Fuller’s counsel) proceeded to call expert evidence as to the quality of Fuller’s voice. This was ruled out, on the ground that experts could probably be got in equal numbers to pronounce an opinion either way. No evidence was called for the defence. The judge, in his summing up, said that the first statement complained of was no libel, and the reference to "managerial meanness" was fair comment. After 20 minutes the jury found for defendant, and judgment was given accordingly. G. B. SHAW ON CRITICS ‘TWENTY years before, there was a similar ‘case before the Court in England, for the account of which we are indebted to a music critic of that time who wrote in The World under the signature of G.B.S. "I pursue my present calling by suf-ferance-by a sort of informal Geneva Convention, which puts actions-at-law in the same category with explosive bullets," he wrote. "The moment I understand that the appeal to law is not barred between myself and any artist or entrepreneur, I fly in terror from the unequal contest and never again dare to open my lips, or rather dip my pen, about that litigious person." Shaw was thinking, when he made these remarks, of the case where an Italian singer, Ciampi, sued the Daily Telegraph (whose music critic was Joseph Bennett) and won a farthing. In Shaw’s own words: "Almost Culpably Good-Natured" "Last season an opera singer, of whom I am reminded by an unconfirmed report of his death at Malta, had his performance criticised by my eminent colleague, Mr. Joseph Bennett, in a manner which was almost culpably good-nat-ured. The artist, however, declared that the effect of the criticism was to open the eyes of impresarios to the undisputed fact that he was no longer in his prime; and, the paper in which the notice appeared being well able to pay any amount of damages, he sued it. The case was peculiarly favourable to the critic, as there was no difficulty in making even a jury see that the criticism erred only on the side of leniency. But one of the proofs of its justice was that it had depreciated the market value of the artist’s services as any unfavourable criticism must if it has any effect at all. (continued on next page)
Angry Artists Who Went To Court
(continued from previous page) The jury accordingly gave a verdict for the artist against the critic, putting the damages at a farthing to emphasise the fact that they considered that the critic would have been in his right if his occupation had been a lawful one. And if Mr. Bennett had called on me next day, and asked me in the common interests of our profession and of the public never to mention that artist’s name again, he could have been indicted for conspiracy, and imprisoned. "In spite of the adverse verdict, some critics expressed themselves as satisfied with the termination of the case, on the ground that the artist had a fine lesson, since he gained nothing, and incurred both heavy costs and loss of reputation, not to mention such press boycotting as arises spontaneously from the esprit de corps of the critics, without any express concert between them. No doubt this was so, though it does not offer the smallest set-off to the still heavier costs incurred by the defendants." It says something for Shaw’s dexterity that in six years as a music critic of the most omtspoken sort he never gave rise to a libel case against the paper for which he wrote. THE SITWELLS’ CASE N UCH more recently-in 1941-an English Court had to decide what damage had been done to the reputation of three noted English writers, the Sitwells, by the publication of a slighting comment on all three of them. Reynolds News reviewed "Edith Sitwell’s Anthology" in February, 1940, and said: "Among the literary curiosities of the nineteen-twenties will be the vogue of the Sitwells, sister and two brothers, whose energy and self-assurance pushed them into a position which their merits could not have won. One brother wrote amusing political verse. The sister produced a life of Alexander Pope. Now oblivion has claimed them and they are remembered with a kindly, if slightly cynical smile." Twelve months later, the three Sitwells (Edith, Osbert, and Sacheverell) claimed damages from The Co-operative Press Ltd., publishers of Reynolds’ News. They claimed that the words published meant that they were persons of no literary ability, whose arrogance and conceit constituted their sole claim to prominence and that they had in consequence been seriously injured in their reputation and profession. Opening the case, the Sitwells’ lawyer (G. O. Slade) said that the word cynical . err "meant. "contemptuous." The to which the plaintiffs took gréatest exception was that they had passed into oblivion. They themselves felt that they might be said to be almost only on the threshold of the more important part of their literary career .... To refer merely to Miss Sitwell’s Alexander Pope, published in 1930, without referring, for example, to her book Victoria the Great, published in 1936, which was a best-seller, was false in the present connection. -_ © The first witness’ was brother Osbert, who said he had published his book Escape With Me in November, 1939, and his last book Two Generations in October, 1940, so that he must have "passed into oblivion" at some time after November, 1939. . -Cross-examined by G. D.. Roberts, K.C. (acting for defendants), Osbert Sitwell agreed that he had had quarrels with critics, but had not said offensive things about them.
Mr. Roberts: Have you and your family always done everything. you can to attract public attention?--No we have not. She Could Not Be A: Snob Next day, Edith Sitwell gave evidence -about her works, her present reputation, and so on. Her vogue had not died away, and a perfectly fair critic could not truthfully say it had, she said. She agreed that she had described Alfred Noyes’s poetry as "like cheap linoleum"; but cheap linoleum was a very useful thing. She agreed that she had compared the poetry of John Masefield to "a steamroller." She agreed that an article "People I Annoy,’ written in 1928, in reply to a critic, showed bad manners, and had been written in a bad temper, but it was not snobbish. She had lived in a small flat in Bayswater and done all her own work, so she could not be a snob. Her reason for not sueing Wyndham Lewis for criticising her was that he was an old acquaintance, and no one ever took any notice of what he said about other people’s work anyway. Before Sacheverell Sitwell entered the box, Arthur Waley and Charles Morgan gave evidence, both holding that the Sitwells were far from sinking into oblivion. Sacheverell gave similar evidence to that of his brother and sister, and said in cross-examination that he had not passed into oblivion and had no intention of doing so. On the third day, publishers and booksellers were called to testify to the present standing of the Sitwells, and then a photograph from an evening paper was produced by counsel for defendants, showing the Sitwells posing for the photographer outside the court. Closing the defendants’ case, Mr. Roberts said that the action was unjustified, that the plaintiffs had been courting publicity (the photograph bearing this out), but they were not a penny the worse for the review havifg appeared, and that the sum of £500 each, which they had named when approached for settlement out of court, was farcical. In his judgment, Mr. Justice Cassels held that the remarks were defamatory, and not fair comment. No facts had been proved on which the comments
could be based, so the question of malice did not arise. Had it arisen, he would have concluded, from the absence from the witness-box of Hamilton Fyfe (writer of the review), that injury was intended. Each of the Sitwells was given judgment for £350. Comment By "The. Times" Under the heading "That’s for Remembrance," a leading article appeared in The Times (from which we have taken our account of the case). "Another notable victory has been won in the long struggle of the persecuted race of poets to emancipate themselves from the oppressions of the critics" said The Times, recalling that in the century of Robert Burns, it was commonly accepted: "Who shall dispute what the Reviewers say? Their word’s sufficient, and to ask a reason In such a state as theirs, is downright treason." Keats and Rossetti had not retaliated on their critics but in 1878 James McNeil Whistler, "provoked by the arrogance of the most pontifical critic of the day, determined to ‘have the law of him.’ It is true that he recovered no more than a farthing. But then Ruskin had only called him a Cockney and a coxcomb who had asked 200 guineas for flinging a pot of paint in the public’s face. That, the jury evidently held, was scarcely even rude .... .-+ "And though Miss Sitwell is eloquently conscious that our mountain-high forgetfulness Through centuries is piled above the Dead 3 yet she will see her defamers in Court before she lies down under the mountain in her lifetime ... "The Sitwell family are clearly determined to haunt any who should dare accuse them of being forgotten... . They will not claim to be exempt from the sentence of Holy Writ: Our names shall be forgotten in time, and no man shall have our works in remembrance. But, if Saint Beuve rightly defines a critic as one whose watch is five minutes ahead of other people’s, yesterday’s judgment is a salutary warning that that habit may be expensive."
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New Zealand Listener, Volume 9, Issue 226, 22 October 1943, Page 4
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2,579THE LAW AND THE CRITICS New Zealand Listener, Volume 9, Issue 226, 22 October 1943, Page 4
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