Slaves to the Beat

the problem

There's a growing sense that intellectual property and copyright laws need revamping. (I speak from an American perspective, as my experiences and research have heretofor been limited to this country.) Constitutional protection for the right of a creator to govern the distribution of his creation had the original goal of encouraging creative endeavors. "Please, write a book or invent a new device. You will have the sole opportunity to profit from your creation for a set period of time."

It was, perhaps, inevitable that such rights became themselves commodity options. For the promise of funding, a creator could sign over his control over possible future creations to another person or a company.

Remember that copyright has a limited lifespan -- based on the lifespan of the author (under the Berne convention).

If I sell my copy right to another individual or a company, does the effective length of that right change? Should it? Things get particularly sticky when you consider that the effective lifespan of a corporation may be many times that of a creator, though it lacks the ability to create anything on its own.

Consider also the hypothetical case in which a pharmaceutical research company develops an inexpensive cure for cancer. Good news, the constitutionally guaranteed right to profit from an invention has spurred on a long-desired panacea. Bad news -- the company may charge a million dollars per dose. And though the formula for making the drug may be public, anyone caught producing a generic equivalent will likely lose a long and costly court battle.

Okay, that's a contrived example. Still, there are quite a few people floating arguments like this. Recent battles between technology creators, users, and proponents of increasingly strict copyright laws bear this out.

hum of a grand machine

You've probably thought ahead far enough to come up with the MP3 example already. Good job. (You've probably already read essays like 4 The Love of Music and at Courtney Love Does the Math).

For those of you who need a little refresher, here's the scoop -- making a digital copy of music is tremendously easy. There is no loss in quality and there is no upper limit on how many copies I can make from one master. MP3 is a format that provides relatively good quality (not as good as a good CD, but decent) at relatively small file sizes (not as small as this essay, but decent).

I can purchase a CD from Over the Rhine (a wonderful band) and, with a few minutes and some free software, encode my own MP3 of "If I'm Drowning". I could post that on a web page somewhere, e-mail it to my friends, or do any number of things to propogate this gem in the wild. (You would do well to download it from the band's own MP3 page). Cost to me? One CD, a few minutes, some bandwidth.

Cost to you, a few minutes downloading to see if you like the song, a couple of megabytes of disk space.

Cost to Over the Rhine? Good question.

Some bands see this as free advertising, encouraging their fans to distribute bootlegs and ripped MP3s. Some bands make samples or entire songs available. Some bands rant and rave and proclaim ever-so-righteously that their art will not be treated as a commodity in press conferences before they rush off to appear in a commercial for some brand of soft drink or model for their new line of action figures.

Then again, some people aren't even that thoughtful.

What's tricky is that many bands don't really own the right to music they've created. (Ah, you were wondering how I'd tie this together.) What happens is that their labels loan them money to make an album and sometimes even promise to pay them royalties after the expenses have been met.

Expenses, of course, run high when you have to pay exorbitant amounts of money to promote a handful of pop music superstars (who spend more time being photographed and cavorting with promoters than writing their own songs -- which is probably okay, because they already have two songs: "I love you don't ever leave me" and "How could you leave me?"). It's pretty expensive to keep your flavor of the month interesting.

Meanwhile, people who actually spend more time writing songs and practicing their instruments than breaking up hotel rooms or trying to get acting jobs on TV or in the movies find themselves virtual wage slaves, having given over their right to control distribution for the chance that the massive distribution and promotion channel will shift some money their way. (Hey, it's not all black and white here, because there are musicians who've spent years honing their craft, gathering an audience, and now enjoy commercial success. But take a look at the pop charts and see how many groups have been around for five years -- and wonder how many will be.)

Also meanwhile, the real fans (not the ones who watch the shiny things network and buy the single of the week religiously at the music store in the mall that can't seem to find me a Chagall Guevara CD) who would pay extremely good money for even a used copy of older, out of print music, are left in the cold.

Is the moral of the story that the same old stuff repackaged as 'the new thing' is good, and the new and unique stuff that's been overlooked for years is bad? No. (Not even the record label promoters can believe that. I'm not really elitist, I just think that mediocre music gets promoted because of focus-group and target audience marketing.) The moral is, something's wrong when laws designed to promote arts and culture are used to promote boy bands who can dance and barely remember the words to their two songs while stealing and stifling the ability of musicians who can actually play instruments to do something unique and to say something that matters.

You might not find it ironic that high-placed executives in the recording industries throw about terms like 'pirates' (Arr, matey, shiver me subwoofer. Digital watermarks off the starboard bow!) and 'the death of culture as young people start to believe music should be free'. Hey, if you want your culture to have all the personality of foam packing peanuts, go ahead.

Follow me so far?

Without exactly proposing to do away with current copyright laws and tendencies (as there are plenty of people writing about that, some of them lots smarter than I), here's a big question I'd like to answer.

How should musicians and songwriters be compensated for their work, supported as artists, yet not exploited by long-term contracts?

the magic fife

Let's turn the question from the recording labels around a bit. Instead of "How can musicians make money if their work is given away for free?", let's ask "How did musicians make money before recording became practical and popular?"

As astute people before me have pointed out, the current system of lottery-style promotion, marketing, and copyright-collateral loans is an anomaly in the annals of Western musical history. People made music before the RIAA came along, and people will make music after it goes away.

They just need a little encouragement to share it.

I could tell you stories about Bach writing masses in the Leipzig cathedral, or Lizst (the bad boy rock star of his day) deciding to become a composer, or Handel and the creation of the Seasons. Granted, the cost of leather pants, laser shows, and hotel room damages weren't factors, but somehow they managed to leave a like-it-or-not-but-you-gotta-admit-it's-lasted legacy. All without record labels.

Granted, Mozart did die a pauper at a young age. Still, the reason we're able to hear his funeral mass now is because he didn't trade the right to distribute it for, say, a potato.

No, the musicians of that period often worked other jobs (not what I'm here to talk about) or had (wait for it...) sponsors.

consulateofprussia.org

That's right, people actually paid money -- up front -- to composers, in return for music to be performed at a certain date. (Occasionally there were artistic demands, but I'm not aware that anyone ever told Handel "In this video, you'll be dressed like a cheerleader.")

I'm also not aware that any rich sponsor ever said, "If you do this piece for me, you can never let the archduke of Hungary hear it. Or those scrappy street urchins, they are likely to sample it for a rave." So they took the good with the bad.

Suppose for now, that we were to bypass the recording labels, providing what they nominally provide for the artists but not requiring ten pounds of flesh. Would it be possible to promote the growth of the arts while respecting the rights of creators and paying them fairly?

Possibly. Here's one idea. (No, it's not micropayments. Yeesh.)

Set up a non-profit organization with a set pool of money. (From investors, individual donations, non-evil corporate sponsors, whomever -- as long as the goals and methods of the organization are known up front.) Provide seed money loans to artists -- not large amounts, perhaps five to ten thousand dollars. The money will go to recording music and pressing a small run of CDs (one or two thousand, perhaps). Please note, this shouldn't be like the NEA, living off of public funds, attracting controversy, and making nearly no one happy.

Release the individual songs electronically. Make it known that the full CD (with lyrics, album art, and all the nice extras collectors and music lovers enjoy) is available from the artist, at a modest price.

Pricing can be low because expenses are low. If it costs $5000 to record the album and make a thousand CDs, selling the CDs at $5 apiece will just recoup costs. (For the sake of argument, we'll assume shipping and handling fees are minimal.) Selling the CDs at $10 apiece will pay back the loan from the organization while netting the artist $5000 as well. Not bad.

As the artist sells more CDs, the price per CD can actually decrease. (Okay, that's probably not likely to happen. But if the last CD sold 5000 copies, only a dollar per CD would need to pay back the loan. Then again, the artist is more likely to spend more money on recording, so there's careful calculus to be done here.)

The really interesting part is what happens after the artist pays back the loan. Let's say, for the sake of argument, that the record labels aren't completely and utterly evil, and that they actually have a good idea now and then. (Stay with me on this.) One of the reasons they are able to exploit so many new artists is because it only takes a few wild successes to bring in enough money to wave in front of the faces of a few hundred starving people -- while still paying magazines to do fake news articles on their celebrities.

We'll take the non-hideous part out of it, and say that after the artist has paid back the seed money, we'll take maybe 5 or 10 percent of subsequent revenues of that album alone and put it back in the fund. Suppose our friend with the 1000 CDs goes on to sell 10,000 more. That's $10,000 back into the fund (enough to start two more artists) and $90,000 to the artist. Wow -- he could afford to do his own album next time!

Someone out there with a better grasp of economic analysis (and more desire to get into it than I) might run through these rough numbers, fix them up, and realize that there's a fixed point at which the fund will support new artists (even if they don't all break even) and fairly successful artists (who actually contribute to the fund, beyond just paying back their loans). It is entirely possible that, if managed well, artists who undersell their initial stock of CDs will have their debt forgiven because another artist has exceeded the break even point.

As word of mouth spreads, and artists under this system amass fan followings, it's even possible that some will buy shares in the fund to promote new CDs being made, receiving discounts on same CDs upon release. Hey, we've got something like a community-based sponsorship system here. Neat!

2000 words in a manifesto

Obviously this is just the germ of an idea, and there's more thinking to be done on the issue. What is the role of performing, for an artist? Will there need to be separate funds set up for different genres of music? Would this work for other artistic endeavors, such as poetry book publishing? (There are similar devices for free software, such as Sourcexchanges and Cosource -- probably where I got this idea.) Is it economically feasable?

As always, I appreciate any thoughts you have on the matter.

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