Copyright Law Robs Us of Political and Social Power of Sampling

Sampling is a political and social act. Requiring permission and a license -- particularly without a fair mechanism to facilitate that -- is a form of oppression. (Photo by John R. Southern)
Sampling is a political and social act. Requiring permission and a license without a fair mechanism to facilitate that is a form of oppression. (Photo by John R. Southern)

It is difficult to name a court decision that has had a greater negative impact on recorded music than Bridgeport Music, Inc. v. Dimension Film. The de minimis doctrine, with respect to digital sampling of sound recordings, effectively disappeared after the court’s decision, summarized as: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” From the perspective of culture theory, the court could not have made a more erroneous statement.

At the time, there was abundant social and political energy associated with hip hop, a genre based on sampling. Hip hop was and still remains an important social and political institution. The appropriation of mainstream culture by the “underground” through digital sampling was a direct, progressive response to disempowerment among the hip hop community. Bridgeport crushed this culture overnight. Samples became the province of the minority of rights holders who owned songs of licensable value, and the minority of musicians and labels who could afford their licensing fees.

Arguments in support of Bridgeport primarily appeal to labor/desert and personhood theories of copyright. Mandating all samples be licensed decimated their widespread use and was a failure from the perspective of cultural theory. But under theories of fairness and personhood, it’s a small price to pay to ensure the original author is compensated, remaining in control of granting or denying permission to sample.

Samples chosen purely for their aesthetic quality are the easiest samples to recreate in a studio, at far less cost than licensing. This is often invoked to defend Bridgeport, but it misses a critical cultural point. Popular songs carry the greatest political and social meaning. Generally speaking, the more popular the song sampled, the larger the audience with whom the meaning will resonate.

In practice, many musicians have transferred their rights to a record label by the time they achieve popularity that warrants being sampled. Particularly with less established artists, a label will avoid the risk of investing in a sampling license when a musician’s sales potential is unproven. Most unsigned musicians can’t afford to license samples at all. This is a chilling of creativity for dubious rewards.

We are compensating yesterday’s musician by erecting a prohibitively expensive barrier of creative entry for today’s musicians. It seems rather contradictory to appeal to the labor/desert theory by raising the cost and bureaucracy of entering the market.

Hip hop adapted and continues to evolve as a central part of our musical culture, but its development as an art form was unquestionably arrested. The near-disappearance of unauthorized digital sampling between 2005 and 2010 has been interrupted by an explosion of creativity. In much the same way hip hop did 30 years ago, mashups and remixes rapidly emerged over the last few years, challenging the sound recording status quo and facing an arrested development of their own.

Today’s sampling musicians lack the history of commercial success hip hop enjoyed. In a way, they don’t know what they’re missing. They feel more entitled to appropriating sound recordings, and less entitled to compensation. They’re participating in what Lawrence Lessig calls a “read-write” culture, similar to the culture of amateur performance that existed prior to the invention of the phonograph and the industrial commodification of music. They’re involved not just in a semiotic democracy, but a new culture of creative consumption that’s productive, not passive. This has numerous implications, not the least of which is that less labor/desert incentives and personhood assurances are needed to stimulate creativity — it now happens as a corollary of consumption.

Nothing changed in the law to enable this trend, it’s simply another case of technology racing forward. Songs can now be produced from samples on a tablet in under an hour. Music tastes and popular songs change in weeks, not years. Culture moves at speeds that copyright law can’t keep up with anymore. This creates large financial challenges for “professional” musicians, who are rapidly being offset by an exponentially larger pool of amateur and “semi-pro” musicians.

We must also acknowledge that sound recordings are themselves a platform for music discovery. Sampling can be a way for fans to discover new artists. Having one’s sample appear in the remix of a famous mashup artist can generate huge exposure for an emerging artist. Licensing chills this kind of spontaneous creative reuse, and if one demanded compensation, one may not be sampled. Well-established musicians whose music has demonstrated value do not share the same view, but from a welfare and culture perspective, the greater good is best served by free appropriation.

This is a messy situation, and reform to copyright is needed. A compulsory license for the sampling of sound recordings seems an appropriate solution. The specific mechanisms by which such a license would function are surely more complicated and contentious than, for example, compulsory performance licenses. However, they would be based on well-established legal precedents.

The deadweight loss experienced by our culture when the cost of licensing samples skyrocketed from zero to thousands of dollars was staggering. Cultural theory guides us toward compulsory licensing as a way to foster a more diverse, democratic and equal creative landscape. It encourages us to make works more freely available for creative reuse so that the next generation of musicians can make the next generation of music, while sustaining their livelihoods long enough to pass on their musical traditions.

Creative Commons offers a fine stopgap solution, allowing artists to license music such that it can be freely shared and remixed, yet protected against unauthorized commercial use. As access to music becomes free or nearly free, musicians will need to rely on revenue streams and methods of discovery outside of traditional music retail settings. Today it is more important to live the creative life than achieve the American dream with all the labor/desert it entails. I think that represents the triumph of culture and cultural theory over the increasingly anachronistic theories of copyright which address pre-Digital Age creativity.

21st Century Recording Means Less Studio Time: Deal With It

It's sometimes hard to tell if a producer is depressed or just concentrating. Photo by Saucy Salad.
It’s hard to tell if a producer is depressed or just concentrating. Photo by Saucy Salad.

This is a long comment I made in response to this Trust Me, I Am A Scientist blog post which was Facebook-shared by friend and record producer extraordinaire John Naclerio at Nada Studios. I lump the ‘Scientist’ blog in with the Trichordist folks who basically try to complain the old music industry back into existence. They think music is devolving, I think it’s evolving… I guess that makes us sworn enemies. But I don’t want to fight, I want to find solutions, and all I hear from them is complaints.

This is addressed to John but could really be addressed to any professional career producer/engineer worth their salt.

John –

Sorry, I’m going to be the guy that points out this article is BULLSHIT!

John, we’ve had these discussions before so I know you know I appreciate the work of a professional. You made our record sound 1000% better than it would have sounded fresh outta my basement.

I disagree with the main point that “It always takes longer than the band expects” to finish a record… I mean, I’ll take your word for it if you think this is a good article. I’ll accept that most or a growing number of bands think this, but I believe the true professional musicians understand the process and understand it takes time.

I totally disagree with his implication that somehow technology has had a negative effect on the recording process simply because a few people are impatient. Technology has made it possible to have a studio on every laptop — we should be celebrating that!

Yeah, from a producer/engineer standpoint it sucks because culture is getting lo-fi, there’s less money in the music economy and budgets are smaller. We’re never going back to Led Zeppelin locking out a studio for a year, nor was that ever necessary to make a good record. It was important for doing lots of drugs though.

What about the black market for drugs? With musicians spending less time in the studio, they have more time freed up to do drugs. Maybe you should consider a career as producer/dealer?

Seriously, I think I can understand why producers and engineers would be totally fucking annoyed by bands coming in and expecting to have a great record in a few days. Maybe that happens more often than not these days. It must frustrate the hell out of you to want to do an awesome job but the band only has the budget to do 4 songs in 2 days.

This blogger offers no solutions whatsoever, just complaints. How about thinking about ways musicians can have bigger budgets? How about thinking about “fuck the album” because people listen to singles, and just take the time to do really good singles until you get financial backing for an album? How about record it at home because listeners are cool with lo-fi as long as they’re getting a type of music they otherwise wouldn’t have gotten because the musician couldn’t afford to be in a studio? How about celebrating home recording as a gateway drug to valuing professional production/engineer services?

It’s not that bands don’t value the professional recording process or how long it takes… they just don’t have the money they used to, plus they can do a C+ job at home… that’s just reality. They’re not going out of their way to be assholes about it, but they are fair to expect that recording technology has evolved to the point where yes… it actually does take a shorter time and is much cheaper to make a great record than 5, 10 or 20 years ago. All of the sudden you CAN record an LP in a few days for $1,000. Will it be awesome? 99% of the time, no. But your odds don’t get much better with a professional recording… it’s not about the art, it’s about the business.

John, you are one of the most respected professionals I know in the music business — not just from me but from the hundreds of musicians who have come through your studio. You don’t complain about any of this shit, so I’m not directing this at you. I just want to say that 99% of musicians have never been able to afford a $20,000 recording budget, so nothing much has changed there. It’s the label situation that’s changed. And good riddance. Patronage beats exploitation. It sucks for producers/engineers, there’s less money. But it’s better for musicians and they are the ones ultimately keeping you in business.

We’re just going through a rough, awkward patch in the industry where the old players are dying but throwing every dollar and lawyer at holding on to paid access to music. But access to music is already free or nearly free, and we’ve yet to adapt the music economy to it because these assholes are preventing us from finding new solutions.

Recording technology will continue to get cheaper and more efficient. Digital editing means there’s no reason for a musician to play the track 47 times. Recording time is getting shorter and that’s a good thing for everyone but the people who are paid based on recording time. So for those folks, like you, John, and the countless other producer/engineers struggling against this wave of amateur musicianship and production — let’s start talking about business solutions.

Let me close by saying I think that you, John, are a shining example of a producer talking solutions. You started a label and are now taking backend interest in some of the bands you produce. The producer/engineer becoming more of a part of the band or their management is probably the most promising avenue for talented studio professionals right now. But there will be more, and I’ll work with you to help find the money!

Musician as Entrepreneur, Band as Business – Take My Class!

Today I’m excited to announce the culmination of over two months of round-the-clock production work to answer the common musician question: “How do I make money from my music?

I proudly present Musician as Entrepreneur, Band as Business, an online course offered by Artists House Music on the Udemy eLearning platform. Watch the promo video below:

Earlier this year I teamed up with John Snyder of the awesome Artists House non-profit to plan a curriculum that would engage and educate a new generation of musicians. Artists House has a massive video library — John brought to the table hundreds of hours of video footage featuring interviews with the top names in the music business.

I edited that massive mountain of content into 5.5 carefully curated hours, and with John’s wisdom (and 85 pages of written advice) to guide the production, we emerged with a course like no other.

Please head over to Udemy to preview the course — we’ve made one section available for free so you can get a glimpse of the top-shelf, real-world education we are offering here. There are no boring lectures that drone on, just solid tips from folks who have already proved they know how to make money from music.
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Compositions with Samples: A Music Discovery Market in Arrested Development

Girl Talk producing live. Photo by IllaDeuce. CC-BY-SA
Girl Talk producing live. Photo by IllaDeuce. CC-BY-SA

When you can’t sample something, you can’t discover you like it, and you won’t buy it.

Like many suburban white kids, my first exposure to hip hop was when Run-D.M.C. teamed up with Aerosmith on “Walk This Way”.

That collaboration was not just how I discovered Run-D.M.C., it was how I discovered the whole genre of hip hop. 2 Live Crew, Beastie Boys, NWA, Public Enemy, DJ Jazzy Jeff & The Fresh Prince and LL Cool J would soon follow, along with lots of awful hip-hop/teen pop crossovers I needn’t mention. For someone straight outta the Catskills, my hip hop roots run deep.

Was Run-D.M.C. showcasing its sound through Aerosmith’s composition? Or was Aerosmith showcasing its sound through Run-D.M.C.’s composition?

The answer, of course, is both. In this case, it was as much musical chemistry as calculated salesmanship. Both bands were rocking each other’s compositions as a platform for greater exposure. Run-D.M.C. appealed to fans of hair rock, and Aerosmith suddenly seemed relevant again, saving their music career. The whole thing was a marketing plot orchestrated by bearded studio magician Rick Rubin, who carefully arranged the profitable pairing in advance.

As any hip hop fan knows, creative appropriation of sound recordings — samples — are a fundamental building block of the genre. “Walk This Way” was staged, but most samples at the time were taken without permission. Hip hop had not yet begun to emerge as the commercial powerhouse it would soon become. It wasn’t until Bridgeport Music, Inc. v. Dimension Films that copyright law was brought down like a hammer against unauthorized sampling, and the practice suddenly became very expensive if not impossible.

Hip hop pre-Bridgeport was a revelation because it was a genre of music based on exposing people to other artists and genres of music through the actual composition. It wasn’t a composition as we traditionally thought of — sheet music with lyrics. Instead of notes, there were bits of sound recordings, with compositions contained within. Songs were transformed through sampling into new compositions that showcased artists and genres in a new context.

Hip hop wasn’t just a music genre, it was a music discovery platform.

The mashups, remixes and EDM of today are taking the mantle of genre-as-music-discovery vacated by hip hop after Bridgeport. I would argue that these genres are the natural progression hip hop would have taken had the creative act known as “sampling” not been stagnated by an unjust court ruling.

Today, you can discover several artists or genres in a single mashup. Like an audio scavenger hunt, listeners follow snippets of sound to their source, finding new favorite tracks and entire styles of music they didn’t know existed.

All of this is happening under the commercial radar right now because creating songs with unauthorized samples is technically copyright infringement. Girl Talk is the poster child for trying to make a career out of claiming such use is fair, using hundreds of uncleared samples and making lots of people scratch their heads as to how he gets away with it. There was a whole SXSW panel on it:

No one can argue there is a growing cultural awareness of Girl Talk-esque sampling as transformative, fair use among listeners and musicians. This contrasts with another widely held belief that there is a limit to sampling another’s work without payment. As they say in the video, “Puffy’s got to pay” when it comes to using the heart and soul of a song as the heart and soul of your new composition. In other words, any rational musician or listener can see there is a spectrum between fair use and copyright infringement when it comes to sampling. Unfortunately the law is generally absolutist about these things, and Girl Talk only avoids prosecution through conspicuousness. The fact is, anyone who samples any copyrighted song without permission is breaking the law and risking a lawsuit, and because of that, the professional mash-up musician is not allowed to be born.

Where does that leave music discovery via other people’s compositions? Will mashups/EDM atrophy without commercial support? Probably not. That’s the beauty of the illegal art form — it remains relatively un-compromised by commercial interests, and sustains a creative if chaotic scene. The uglier side — at least from a purely aesthetic perspective — is that the genre remains clogged with amateurs with no clear path toward a professional music career.

Much of the progressive talk in the music world around this issue centers on the concept of introducing a compulsory sampling license. Some serious thought and legal expertise has gone into developing this path toward copyright reform. The intent is to balance the welfare of the greater good and culture at large against what many perceive as too much power given to the individual — in this case, the copyright owner of the sample in question.

In the same way I can cover a song without permission so long as I compensate the original composer via a compulsory license, I could theoretically do the same for the composers (and sound recording rights owners) of my samples.

In practice, this is tricky for a number of reasons. For example, how do we set a compulsory sample licensing fee? Most people seem to think it should be based on what percentage of your composition the original sample represents, or what percentage of the original composition/sound recording you took. But how does one possibly determine that? Length of the sample? Whether it’s used in the chorus or the verse? Amount of sample transformation? The variables are endless. Calculating them in any standard format is flatly impractical — any attempt to do so would be fraught with compromise.

Then comes the personhood concerns — the idea that a person might not want their composition to appear in a particular context. For example, when Kanye West paid handsomely to use an Otis Redding sample on Watch the Throne, Otis Redding’s estate vetted every word in the song to ensure it matched Redding’s legacy. A compulsory sample license would allow me to use the same sample in a new composition called “Otis Redding Sucks” as long as I paid the requisite fee.

For those unfamiliar with music copyright, a song basically has two rights attached to it: the actual sequence and structure of the notes and lyrics as well as the actual recording. It’s another reason why sampling is trickier than cover songs — with a cover, you’re making a new recording, so you don’t have to pay or get permission to use the old one. With a sample, you’re dealing with two different sets of rights, which technically means two different licenses. Compositions are administered by performing arts organizations (ASCAP, BMI, SEASAC) on behalf of publishers and artists, licensing them is a fairly standard process. But many musicians transfer their song’s second right — the sound recording right — to a record label in exchange for financing the recording and marketing of their album. Thus, negotiations for sample use are not always entirely up to the artist, but their label as well. So in many cases, the composer would be cool with using the sample, but the record label that owns the sound recording would say no or hold out for more money.

For these and other reasons, it’s not likely that genres based on unauthorized sampling will reach any sort of widespread commercial viability any time soon. And that’s a real bummer, because we’re denying a generation of listeners one of the most vibrant music discovery platforms yet invented by humans — the composition-within-composition. Not to mention all the dough being left on the table.

Thankfully — as I always say — music finds a way. Bridgeport didn’t stop unauthorized sampling any more than Napster stopped unauthorized file sharing. In both cases, music discovery was driven underground.

We will continue to see the growth and evolution of compositions that make unauthorized use of other people’s compositions and sound recordings. I would urge all musicians to fight the good fight and protect their compositions and sound recordings with a Creative Commons license instead of relying on traditional copyright. With Creative Commons, you can protect your song against unauthorized commercial use while giving a wide berth to allow transformative uses of your song like sampling and remixing.

Sample culture will continue to thrive beneath the surface of the mainstream, waiting for a law to pass and unleash its bottled-up commercial potential. Until then, it will only get cooler and more creative, and samples will only gain more political power.

The corporations that control 75% of the world’s music would be keen to pay attention and change their strategy. Picture this: Girl Talk takes the stage with Aerosmith and Run-D.M.C. at the 2014 Grammy Awards and they infringe 60 years of music in 5 minutes. Watch that mashup single become the new “Gangnam Style” overnight.

The Music Doesn’t Need Saving (Video)

Trying something a little new this week… a video blog.

I hear a lot of people say we need to “save the music” by preserving the old business models of the music industry. “If there are less career opportunities for musicians,” they argue, “surely there will be less good music.” I call shenanigans on this short-sighted perspective. There is more music than ever before, and a new breed of musician is being born, blurring the lines between creator and consumer. Bring on the new thing.

The Steady Decline of the Professional Musician

The professional music career is in decline.

We could start with the RIAA’s debunked statistics painting a worst-case scenario, but that only tells one side of the story.

I’d rather look at Google, the “do no evil” company and thorn in the side of the few corporations that control the majority of the US music industry.

Search terms can’t be gamed and framed the way U.S. Bureau of Labor data can… Google Trends searches are like Shakira’s hips, they don’t lie. Let’s take a look at some common terms associated with aspiring music professionals:

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The search volume for music career, learn music, music business, songwriting and music sales are all noticeably down since about a decade ago. Seeing these and other terms on a downward trend paints a clear picture of a future with less professional musicians.

Who’s to blame? Depends on who pays your bills. If you’re an old school music business person, you probably blame the content-devaluing “information wants to be free” tech sector. If you’re a new school musician, you probably have a chip on your shoulder dug deep by the exploitative, self-destructing record business which is ineptly responsible for the scorched earth you have to Mad Max a music career on these days.

Before we seek blame or solutions, let’s pause for a moment to consider what this means. Back to Google Trends. What about search terms concerned with more modern, everyday music practices?

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Search volume for how to remix, mashup, garageband, how to record and how to make music are on their way up. There are more “musicians”, but less of them qualify for the “professional” distinction. You might call it the “amateurization” of music. More musicians, less music careers.

This is fun, let’s take another look at the “old way” of doing things:

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Yup, interest is flagging in music publishing, music job, artist management, music copyright and music law.

So there must be a huge explosion of amateur musicianship, huh?

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Hmmm… less people seem to want to go the traditional route of learning guitar and song composition through formal experience in training. This would seem to jive with less musicians going pro. Also jives with all the time those damn kids play video games on their mobile phones.  They probably have a much more direct relationship to music creators, right?

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Wow, crowd funding is exploding in popularity — there are clearly less careers these days built on exploitation and more facilitated through patronage. And lots of people seem to be picking up the habits of aspiring music professionals (Facebook pages, merch, albums). Perhaps we’re just in a slump, and there’s a digital music baby boom waiting to happen?

Of ourse, the situation is not as simple as I paint it here with the Google Trends graphs. For one, Google search terms are very broad in both scope and depth. If Kickstarter had an IPO, that might spike traffic, despite no correlating spike in user activity. Second, statistics can tell almost any story you want them to if you know how to frame them.

I’m not here to spew propaganda. I’m here to form solutions. Can this trend be turned around? Should we even care?

On the one hand, I believe we need more of a culture of entrepreneurship among musicians. The art/business divide is increasingly one of unsustainable, apathetic detachment from reality. It’s a cultural anachronism from a time when creative work found its utility in exploitation. Put simply, we musicians could use a little entrepreneurship with our sex, drugs and rock and roll. Everyone is creative nowadays — in a sense, creativity is getting more competitive. Those with the entrepreneurial skills have more and more opportunities for exposure than those skilled only in composition, performance or recording.

On the other hand, the music industry is growing, and while huge challenges remain (largely around copyright issues), it doesn’t seem as if the music market is in a downward trend. In fact, more people are listening to more music than ever before.

I think what’s happening is clear — we’re witnessing the dawn of a new creative class and a new type of creator-consumer.

We should continue to strive to figure out ways the old guard won’t lose all the value they invested in the music world these past few decades. But royalties — so-called “mailbox money” — are like a musician Social Security system, and just as unsustainable. Old rights owners (or their heirs) who no longer create anything are bogeying the music economy pie, leaving only tiny slices left for emerging, independent artists. This is why Spotify royalties are so low. I bet they love artists and would love to pay them, after all, they’re Swedish.

The purpose of copyright is to promote the production of creative works — how is that accomplished by giving the George Gershwin Estate millions of dollars? It may be a radical concept, but I think we need to divert some of this money into funding programs for the next generation of musicians. And we clearly need shorter copyright terms.

In any case, let’s push toward patronage and leverage the creative value in all of us to protect the independent class of musicians that represent our future. We may very well live in a world with more musicians and less professionals for a long time. But that doesn’t mean music is any better or worse off. Music is always awesome no matter how much we screw up the business side.

What is happening now is a redefinition of what a musician is (which is good because none of us can agree on a definition at the moment). We’re figuring out new ways (or rediscovering pre-phonograph ways) of doing business.

But as most fans and musicians would tell you, “Who cares about definitions and business models — turn up the music!”

Don’t Panic: Young People Still Love Music, Just Differently

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There is a growing, panicked chorus of voices in the music blogosphere asking the question, “Are young people tuning out of music?”

Let’s all take a deep breath and relax, folks. Young people still love music, they just have a different relationship to it than us. We need to stop framing generational relationships to music as “worse” or “better” than ours. In fact, we need need to stop this whole “young people” talk — it’s making us look old and out of date.

The all-too-familiar argument behind this imaginary desertion of music by today’s youth could not sound less crotchety. “These kids walking around in a bubble with their over-compressed MP3s on their crappy earbud headphones! Back in my day we listened to records or the radio all night! Now they just play video games! They don’t pay for music, they don’t respect artist, they don’t even care who wrote the damn song, they just want to listen and forget it!” Even Flea has whined: “MP3s suck. It’s just a shadow of the music.” I thought Flea was cool!

The problem is that the older generations can’t help but view youth culture with a comparative lens. Once you make that mistake, your analysis is done for. Want to know how MTV dominated youth culture in the 90s? They literally turned teens’ bedrooms inside and out to assume their identity and then programmed accordingly. They got inside the teenage mind. You’ll never get into the teenage mind by holding on to anachronisms like big production budgets and adulation of musical “genius”. Skrillex songs and Eagles songs are apples and oranges.

Instead of gettin’ cantankerous with it in our old age, why don’t we see youth culture for what it really is? In fact, “youth culture” is inadequate because youth is culture in the sense that the younger generation drives cultural change.

The truth has been obscured by bitter anecdotes of musicians and fans who preferred the culture built by a music industry based on corruption and exploitation (just sayin‘!) When one sees youth culture for what it really is, there is actually more to be optimistic for in music than ever before:

  • The Semiotic Jukebox – Semiotic democracy in action. Today’s listeners create their own meaning from art. They’re not lining up at the trough to be fed a product. Unlike previous generations of passive consumers, today’s listeners need to participate in the creation, production and performance of the music themselves. See mashups, dubstep, remixes, crowd funding, social networks. It’s a boon for personal expression. They want to participate in culture, not just consume it. They are living proof that the fulfillment gained in expressing oneself through music is a greater incentive than any copyright-granted market monopoly. This is why they reject copyright — it now serves cross-purpose to democratized creativity.
  • Lo-Fi Listening – A lot of people consider the home studio revolution the biggest driver of democratization in the music business. But “in the box” production wasn’t a playing field-leveling powerhouse until listener’s ears adjusted to the over-compressed earbuds. Add in computer speakers and used car stereos to their college debt-riddled existence and you’ve got enough questionable audio fidelity to make Neil Young admit that rock and roll actually is dead because it sounds so crappy. Or does it? In reality, young people have adapted to listen to and enjoy music at varying levels of audio quality and still enjoy it. “Legitimate” digital downloads are improving in fidelity as compression technology advances… and would you look at that, digital download sales have been on the up and up for a while. Today’s listeners haven’t lost their appreciation for hi-fi… they’ve just adapted to a world of constantly varying fidelity. It’s admirable.
  • Quantity over Quality – The youth of today prefer access to all music — good and bad — over access to a sliver of “really good” music (as judged by market consensus and manufactured popularity). Older generations were born and raised to adulate musicians as creative geniuses. This is a cultural construct from the American Romantic period. Ever wonder why the Chinese have “free-spirited” IP attitudes? They never had a Romantic period! They still appreciate that Everything is a Remix and it’s not just the author but also the shoulders of the giants the author stands on that is the wellspring of creativity. Thus, the old way of having a really small selection of the “best” music is inadequate. They are willing to sacrifice the upper percentile of quality for the benefit of all other percentiles, and their sacrifice should be commended. They will be their own judges of quality, thank you very much.
  • The Decline of Professionalism or the Rise of the Amateur? – This is the big one. You can look at it either way — but either way, it’s hard to argue against the trend toward fewer professional musicians and more amateurs. When equal temperament and music notation met the printing press and the industrial production of the piano, amateur music exploded — so there is a good past precedent for such “amateurization” in the wake of transformative technology. The big difference is that back then, the pros benefitted from the overall interest in music — these were generally amateur performers who still needed compositions. Today, the “amateurization” trend not only includes composition and performance but recording as well. The career musician — rare to begin with — is now a dying breed. Again, that can be a good thing or a bad thing to you, but ultimately, it just is. I for one think it’s a good thing because the purpose of music is social bonding, not generating wealth.

Instead of acting out of fear, let’s endeavor to understand youth culture, keep calm, and carry on.

Copyright Reform Necessary to Protect the Consumer-Creator

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Free song sharing is this generation’s VCR.

Twenty years from now everyone in the music industry will look back at the plummeting price of access to recordings and shake our heads much the same way the movie industry looks back at its attempts to outlaw the VCR. How could anyone rationally think otherwise? And yet the entertainment industry has been chipping away at the legal underpinnings of fair use established by the US Supreme Court just under 30 years ago.

In Sony Corp. of America v. Universal City Studios, Inc. — otherwise known as the “Betamax case” — the Court narrowly ruled in favor of the greater good.

Justices Marshall, Powell, and Rehnquist joined Blackmun in dissenting, completely ignoring welfare-based theories of copyright. These justices were siding with the MPAA’s view that any leeway given to copyright infringement, even personal copying for private use, undermined the whole system of copyright.

It’s not that they were wrong in their assessment. VCRs did undermine copyright in the sense that fair use enabled people to make tens of millions of copies of copyrighted material. But nothing happens in a vacuum. Consumers were so busy “undermining” the copyright, they developed a voracious appetite for films and TV shows, and the movie and television industries positively exploded.

The same thing is happening in so-called music piracy, it’s just happening incredibly slowly because the music industry is still for the most part fighting free access to music.

Certainly, creators need to be compensated for their labor. Copyright exists to provide this incentive to work, ensuring creative works get made. It also exists to protect our personhood — our identity as defined by our creative expressions. Copyright should prevent our labor from being unjustly exploited, and our identity from being stolen.

For many, this is where copyright ends because they are only thinking about themselves (it’s something of an American pastime.) They ought to stop and think for a moment, because there are an estimated 315,613,999 other folks in this country alone who deserve consideration.

Copyright is not just about protecting your individual right (or, more commonly, a corporation’s right) to profit from or be fairly represented in the exploitation of their works. It’s about the greater good, a concept that trumps any individual concern. We tend to overvalue our own creative endeavors because the labor and personhood considerations of creativity distort our perception. Our value is high because we worked hard and infused our work with something of personal essence.

But while the price of creative work may be set by individual, society at large will ultimately judge its value. This is why record labels have to fix prices — to override the more reasonable value judgement of consumers by exploiting their control over music access. In a truly free market, the value of music remains high and climbs even higher while the value of access to music approaches utility levels (think Spotify) if not zero. The music industry is fighting the devaluing of access to music rather than the music itself. On the contrary, there is now more music being produced per year than ever before — more bad music to be sure, but much more good as well.

Copyright is supposed to ensure the needs of the greater good are met by stimulating individuals to contribute to that greater good. We recognize that having a market in which one’s creative works have value is a strong driver of individual contributions. But we must also recognize the purpose of copyright is to “promote the Progress” of the public and culture as a whole. In the case of labor and personhood, copyright is the art of balancing the individual need for monopoly protection with the public need to access creative works.

We need to stop looking at this like one creator is producing work for 315,613,999 consumers. It’s the 21st century. One creator is producing work for 315,613,999 other creators.

This culture in which everyone participates as both consumer and creator was still a ways off back in 1984 when the Betamax case was decided. Interestingly, dissenting Justice Blackmun unwittingly predicted a future in which the line between creator and consumer would not be so clear:

“Fair use may be found when a work is used ‘for purposes such as criticism, comment, news reporting, teaching… scholarship, or research.’ …other examples may be found in the case law. Each of these uses, however, reflects a common theme: each is a productive use, resulting in some added benefit to the public beyond that produced by the first author’s work…”

In particular, this quote reminds me of the concept of “semiotic democracy“, a phrase first coined by John Fiske in 1987. In studying television culture, Fiske observed that “rather than being passive couch potatoes that absorbed information in an unmediated way, viewers actually gave their own meanings to the shows they watched that often differed substantially from the meaning intended by the show’s producer.”

This concept finds its legal context in addressing the growing creative, participatory role in culture that consumers are beginning to enjoy. In other words, we must start treating every consumer as a potential creator. This is not to say we need to mandate everyone make a cultural contribution, but only that we need to respect use and sharing of creative works as a potentially creative act, and one that cannot be reduced to mere product consumption because that was the intent of the producer.

Again, the market assigns value and meaning to creative works independent of intent. Increasingly, a big part of that value is in source material or inspiration for a new creative act.

Most of us in the 80s (those of us who were around, anyway) didn’t use our VCR creatively. I knew I was the exception when I sat in front of the TV recording little snippets of commercials and shows until I had an avant-garde remix of bizarrely juxtaposed images. Without YouTube, I had no distribution network (and few friends at the time) and did this purely for personal enjoyment.

I might not have seemed so out of place in today’s culture. Some of the most popular videos on YouTube are remixes of existing clips (much more entertaining than my VCR art). Dubstep and mashups have turned unlicensed sampling into the music of a generation. Even consumption is collaborative, with fans forming their opinions collectively through social networks. Welcome to the world of the consumer-creator.

It’s really not such a long way from creating our own meanings for TV shows in our heads to producing an expression of those unique meanings. We’ve been doing the former since the days of the VCR and earlier, but only recently have the means for creativity grown ubiquitous.

What does a world in which everyone’s a creator mean for copyright? It should mean reform.

We can’t do away with financial incentives to stimulate creative labor, but we have to reassess if a virtually perpetual market monopoly is bringing a chainsaw to a knife fight. There is much about current copyright term length and a narrowing definition of fair use that works against a culture of creativity. We need to allow consumer-creators to freely remix our individual works into new works if culture is to progress. (Creative Commons leads the charge in this arena, and you can find dozens of books promoting the idea of making fair use fairer.)

We should continue to protect the author’s personhood and the “essence” they contribute to their works. But we’re overdue to reconsider the roles of attribution and identity in a culture that is transcending our psychological hang-ups around copying as the core of creativity. (Marcus Boon’s In Praise of Copying is a great start.)

Finally, and most importantly, we need to push back against laws that clearly favor neither the individual nor the greater good. Lobbying and litigation have become the tools used by entertainment industry elite to stifle this new culture of the consumer-creator. Often passed of as acts to protect creativity, the industry is really only interested in driving consumption. Corporations like to keep creativity at an easily co-opted and exploited level.

If we can keep the corporations in check, one day, passive consumption will be taboo and participatory creation status quo. It’s what’s already going on in our heads. To keep culture locked up just so large corporations can profit (be they record labels or tech companies) is the opposite of copyright’s charter to promote progress. As the creator-to-consumer ratio changes, so too must the law.

What’s Important To Musicians? Analyzing Reddit for Insight

Reddit may boast the largest community of amateur and professional musicians on the web. Its thriving WeAreTheMusicMakers “subreddit” thread had 55,321 subscribers at the time of this writing.

I’m not going to explain to you how reddit or crowd sourcing works, but suffice to say the conversation going on is lively and enriching for any type of musician. So what are all these music makers talking about?

I scanned the last month of WeAreTheMusicMakers posts to gain some insight on what’s important to the community. I would have liked a larger sample size of posts but reddit’s archives stop after one month. However, the community itself is a huge sample size, and I was able to see a few trends emerge. Here’s the data I ended up with after counting and categorizing each post that received 30 or more upvotes:

weare2s

Tips, techniques and resources for digital recording, mixing and mastering represented nearly a quarter of the most popular posts. While it’s true anyone with a laptop can produce a great-sounding record these days, it still takes a considerable amount of skill and experience to properly record, mix and master. Many of the most popular posts were links to free resources to learn the ins and outs of digital recording, followed by information on the hottest plugins for “in the box” recording.

The next most popular category was career advice. Clearly there is a lot to talk about here with the big changes happening in the music world. It seems the WeAreTheMusicMakers crowd tends toward the amateur end of the spectrum — musicians that have been playing for a while and are looking for advice on how to begin establishing a career. Luckily there’s a good number of professional musicians in the fray to provide quality advice.

Along that same line, there were robust discussions of the music industry in general — mostly around unfair, exploitative business practices we’ve become too familiar with. But there were also a few posts that looked to gain lessons from the industry success of other artists.

Also popular were requests for specific feedback on non-career issues. These were usually creative ideas about new websites or resources for musicians, and the posters got an enthusiastic response.

Anyone who’s hung with musicians knows they can’t shut up about gear, and the prevalence of gear porn and gear advice among the most popular posts was unsurprising.

The rest of the most popular posts focused on humor, inspiration and commentary on miscellaneous issues important to musicians. There were also appearances by music apps, exhibition videos, requests for collaboration and allegations of copyright infringement.

While these insights may seem self-evident, to me they powerfully illustrate how musicians are taking their fates into their own hands. And that’s a really, really good thing. The odds and benefits of winning the major label lottery are disappearing more and more each day. We’re replacing the old, corrupt system of exploitation with a new do-it-yourself, direct-to-fan attitude.

Digital recording has made every musician a producer. We’re now culturally cool with a lower-fidelity standard of audio quality. We may never individually learn how to make recordings shine in the way an expert mixing engineer can — but as long as we can make the music we hear in our heads, the tradeoff in fidelity is more than worth it. Old folks like Neil Young and Flea might complain we’re a generation of overly-compressed, earbud-isolated kids who don’t know what we’re missing, but it’s clearly the old folks who are missing the point.

Likewise, artists are taking on management and marketing roles for themselves. Again, most of us can’t create amazing music and manage ourselves to six-figure salaries at the same time. But we’re trying because we realize that the first step to “making it” is taking an entrepreneurial attitude and realizing we’re managing a small business. It’s exciting to see that realization dawning after decades of musicians pathetically waiting to be “discovered”, creating great music that dies in obscurity.

I’ll continue to keep my ear to the WeAreTheMusicMakers thread, and even try and get a conversation or two going myself.

Best Web Services for Independent Musicians

Well, I’ve finally been dragged into the Pinterest milieu. Last week I posted my first “board”: Best Web Services for Bands and Musicians. I give the rundown on each of the web-based services I would recommend to musicians, and provide pricing info as well. Please check it out and comment if you’ve used any of these services.

Cataloguing the best online services for bands has been something of a pastime for me since my early, pre-2000 days of digital music blogging, so it’s nice to return with something much more publicly visible.

Certainly, the list of worthwhile web services for bands has grown quite a bit. There are over 20 great services on my board, and more I’ve probably yet to discover or are about to launch.

So, which of these services should you enlist with? It depends on where you are in your musical career, but even professional musicians will find something that can boost their revenue. In terms of budget, there’s something for everyone — these services range from free with a standard 10-20% revenue share to flat subscription and submission fees. Ultimately, my advice is to take it one service at a time and build slowly and strategically, out from the core of a strong band website. As always, none of this will matter if your music is no good, so don’t squander your hard-earned money until you’re confident in your songwriting and production skills.

Check out the Pinterest board for all the services, here is an overview:

Band Website: It’s hard to beat Bandcamp for setting up a band website with your music, and allowing fans to buy it directly from you. Other honorable mentions include BandPage, Bandzoogle and CDBaby. CASH Music is an exciting new open-source band website project that should pique the interest of developers. For less development-inclined but somewhat tech-savvy website construction TopSpin is leading the industry with a suite of widgets for band websites and social pages that accomplish pretty much anything you’d want a band website to do, with a focus on generating revenue.

Band Marketing: There are a number of great marketing avenues for bands. MusicHype is a great way to identify and engage your top fans. FanBridge is an easy-to-use email and social marketing platform purpose-built for bands. These specialized tools are simple compared to ReverbNation, which basically does anything you could think of in terms of band marketing.

Band Booking: SonicBids has been around forever and is still very useful for the right band to land the right gig. Indaba Music is a newcomer that helps match bands with music industry opportunities, including shows.

Crowd Funding: Sellaband predates Kickstarter as a powerful fundraising platform for musicians primarily based in Europe looking to support large production and marketing efforts. Pledge Music is a fairly new crowd funding platform that deserves attention for being purpose-built for musicians.

Digital Distribution: There are a number of solutions here, and which is right for you depends on your projected sales. CDBaby.com is best for musicians who expect to sell a low volume over a long period of time, as their one-time fee of $50 for album setup and low 9% royalty rate. For those who want to target specific digital distributors, ONErpm features low submission fees and no annual recurring cost. Finally, if you expect to net at least $100 in revenue from album sales, you might want to check out TuneCore, which takes 0% of your revenue but charges a recurring $50 per year fee whether you’re selling or not.

Music Licensing / A&R: MusicXRay, SoundOut, Taxi.com and Pump Audio are great low-risk options to get your music licensed. Which one works best for you ultimately depends on the type of music you play, and your expectations for licensing fees and opportunities.

Music Lessons: Independent musicians teaching amateur musicians is a growing revenue stream, and Bandhappy helps connect teachers with students to make lessons happen across web video connections or even in person.

How the Record Industry Destroyed Digital Music and Chilled Innovation (in Their Own Words)

Since Napster was sued out of existence in 2001, the record industry has ruined digital music time and time again. The result has been to stifle innovation and creativity as the industry dug its own grave with respect to consumer support. We will never really know just how much music and culture suffered from their corruption, ineptitude and negligence. But now we can get a rough idea.

Anyone in the digital music world knows that record labels continue to sue competitors out of existence rather than negotiating a settlement and moving forward progressively (Grooveshark being the most recent example). Until now, this knowledge has been intuitive. But a new groundbreaking study by Rutgers law professor Michael A. Carrier offers stunning admissions by the world’s top music executives that they have been destroying digital music for a decade. Carrier is blowing the whistle loud to expose the culture-crushing tactics of a record industry hell-bent on saving its dying revenue streams. What’s incredible is how many of these smoking-gun admissions of the record industry’s practice of destroying music through litigation and intimidation continue to this day.

For the study, Carrier interviewed and anonymously quoted CEOs and VPs of major music and technology companies. All the major labels and nearly every digital music service worth mentioning from the days of Napster are represented here, with 31 top-ranking officers included as sources for the report. Even the infamous Hilary Rosen of the Napster-era RIAA makes an appearance. The 63 pages of the report are full of juicy, candid admissions that will make your jaw drop and the whole report is worth a read, but here are a few highlights:

• The labels shut Napster down just as filtering technology was being developed to weed out copyright infringing files and/or pay rights holders for use of their content — the same kind of software being developed and used now at YouTube. Had the labels continued to develop this filtering technology, it would be much more efficient and effective today at preventing copyright infringement. Worse, by banning p2p technology, labels just pushed the technology underground and it developed in a way to make it harder to apply such filters.

• The labels were very aware that tying a great single to a lackluster album of songs was akin to “selling 1 pound of shit in a 10 pound bag” and that one of Napster’s biggest lasting effects was to destroy the idea of bundling music in albums. However, they chose to ignore this sea change in music consumption because it ran directly counter to their business model. That the album was not sunsetted for the single continues to be pure willful ignorance.

• In the face of digital music, the labels used litigation as their primary business model. Their attitude was that they were not going to license their content to anyone. This strategy, akin to “not negotiating with terrorists”, (indeed file sharers were labeled as “pirates”) meant that no “legitimate” digital music service would emerge until the iTunes store. Steve Jobs made it happen through personal connections, and the labels basically handed the digital download industry over to Apple’s “walled garden” media ecosystem. Prior to that, the iPod drove the demand for music file sharing through the roof. By not negotiating with digital music services, the industry encouraged the “underground” to flourish an eventually empowered Apple to unseat the music retailers. By the time “legitimate” means of acquiring music emerged, the consumer base was already well used to free, unfettered access to music.

• The CD retail shops basically committed suicide. They were complicit in the labels’ litigious fight against digital music innovators. The labels saw the retailers as their customers, not the listeners themselves. After all, the retailers bought 90% of record industry products. Because the labels would allow no viable digital music alternative, an entire generation learned to consume digital music without industry consent. As a result, retailers essentially evaporated when the industry finally began throwing its weight behind the sanctioned digital music retailers as mentioned above.

• Much of the industry’s irrational behavior can be explained by the “Innovator’s Dilemma”, a somewhat obvious idea that large corporations are dis-incentivized to pursue new innovations that threaten existing business models. Just to demonstrate how out-of-whack executives were with reality, here’s an excerpt from the study:

…before iTunes offered 99-cent singles, one label was “adamant” that “the single should be priced at $3.25.” The reason was that if customers bought “two or three,” then they would “make up lost sales on the album by the sale of singles.” The respondents reaction was: “You’re out of your mind” since “people aren’t going to pay $3.25 for a single.”

• The business structure of the record labels was set up for short-term success in deference of any long-term thinking. Political power struggles were common. In short, the bureaucracy of these labels, themselves consolidated into larger corporate bureaucracies, lacked the ability to innovate in the first place. The result was that litigation was the only way to sustain the business model. Technology startups simply could not go on functioning with the massive legal costs associated with defending a record label lawsuit, especially when all the labels ganged up on one company as they often did (and still do).

• We all know that the RIAA terrorized consumers with lawsuits alleging personal infringement of copyright (remember, retailers were the labels’ customers, not the public, so why should they care about offending the public?). What many don’t realize is how CEOs of tech companies were terrorized with the same allegations of personal infringement in addition to having their companies sued out of existence. Additionally, because of the obscene statutory fines associated with willful copyright infringement, this created ridiculous situations, such as Limewire being sued for statutory damages of $75 trillion, which is more that the GDP of the entire world.

• The litigious affront by labels had a real negative impact on the economy. As it sued digital music services out of existence, venture capital for any new project was hard to come by. This created a chilling effect around digital music services that persists to this day. It’s hard to convince investors to support a project when in the past they have been personally sued for willful copyright infringement simply for investing in a digital music product. Today we have very few compelling digital music services as a direct result of the industry’s approach to using litigation as a business model.

• The report does more than dispel myths about “piracy”, it clearly shows the record industry is to blame for not only its own downfall, but the downfall of music itself. The loss of innovation and venture capital was certainly a blow to society at large, but the effect of this corrupt crusade on the music itself was equally tragic. Though hard to quantify, some of the “magic of music” as it were has been lost, or at the very least transformed irrevocably by the willful negligence of the music industry. Not mentioned directly in the report is the mountains of money denied to musicians themselves, the ultimate enablers of the industry who so often get screwed by it. Fortunately, all this chaos has spurred the public to adopt radical new business models — patronage and crowd funding chief among them — and we are finally starting to “bounce back” from the damage record labels have inflicted on the culture and economy of music.

It has never been more clear that despite bringing music to millions of people across the globe, the record industry has had a net negative effect on music, particularly in the last decade. This being one of the central theses of my upcoming book, I have overjoyed to have this report as a smoking gun source for what anyone in the digital music world knows intuitively to be true. Read the report to see what I mean.