“Man has the rights he can defend” or the reality of copyright protection for working musicians
I don’t know how many of you have seen Andre Wadja’s brilliant Danton, (or checked out the equally great soundtrack) but you owe it to yourself to do so. The film made such a deep impression on me that when I started my first band, it was called The Committee of Public Safety. (And it was French Revolution themed – but that’s a story for another time….)
.
In the film, there’s an exchange between two supporting characters, Philippeaux and Desmoulins, regarding the upcoming trial they have with Danton. It goes something like this:
.
Desmoulins: We can win the case!
Philippeaux: No. It’s a political trial. It has nothing to do with justice.
Desmoulins: (Turning and sinking to the floor) I don’t want to die. I have a right to live.
Philippeaux: Man has the rights he can defend.
.
For those of you who are working musicians – this is an important catchphrase to remember when invoking copyright and protecting your work (and yourself) against infringement.
.
Before The Law or “I love the smell of Kafka in the morning”
.
Copyright law in the U.S. started off as a really good thing. It protected intellectual property and gave people a legal standing against infringement. For musicians and composers this meant that if you had written and recorded a song (and someone else made a recording of it or published the sheet music without your approval) you could sue and get compensation. In theory, it allowed artists to make a living collecting royalties of works that they had written in previous years.
With the passage of the Sonny Bono Copyright Term Extension Act, the copyright law was extended from a maximum of 56 years (a 28 year period plus a 28 year renewal) to 70 years from the date of the author’s death. (Presumably, so the spouse, kids and grandkids – or more likely the executors of the estate – can continue to cash those checks. For interested parties, an extremely detailed timeline of important moments in US copyright can be found here).
After that time, the work would enter the public domain where it could be used by anyone. When you can stream free movies from somewhere like archive.org, you’re often looking at work that has entered the public domain. But being in the public domain in the 21st century has additional benefits. The primary benefit to the artists/creators is that the work can be experienced by subsequent generations in its original form or possibly re-vitalized by being cut, pasted, and remixed in a variety of legal ways.
But the Disney-pushed copyright extension was not done out of a show of support for public artists. It was done to protect their intellectual property from entering the public domain. Here’s a quote from Mary Bono on the bill’s passage taken from the illuminating Wikipedia Copyright Term Extension Act page:
“Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. … As you know, there is also [then-MPAA president] Jack Valenti‘s proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.[8]”
.
As an artist I want people to be able to experience things long after I’ve gone – and it’s not like I’ll need the money anymore. I believe that copyright (in moderation) is a good thing – but unless you have deep pockets and lawyers on retainer, in a best-case scenario it’s a difficult thing to defend against.
.
So you want to take down an mp3/video/pdf?
.
In doing some research lately, I was looking for an arranging book that I used to have to check something. I knew that the book was out of print but thought that a digital edition of it might have been released. A Google search ensued.
Two clicks later, I was reading through an English language page on a .ru address that had the full book in pdf form. In fact it had links to about 3,000 pdf’d books and music instruction videos there. Since the music instruction section was one of about 30 categories, to estimate links to 100,000 items on the site is not unreasonable.
I’d like to think I don’t have many illusions about how widespread a problem (between each technological access and the plentiful options of file sharing methods) piracy is – but when you see what you know is only the trickle of the scope of it in one place – you start to realize how fragile the entire economic model has become.
So let’s say you’re an independent musician and you’ve found content that you’re selling for sale somewhere online. If it’s something like YouTube – you can send off an ownership complaint/cease and desist and typically they’ll take it right down. But let’s say it’s another site somewhere. You’ve registered the copyright and you’re not going to passively watch money fly out of your pocket. Fighting a copyright infringement is very expensive, time consuming and emotionally draining. Here’s some salient advice from the excellent artbusiness website. Just replace “images” with “mp3″ or “pdf” and you’ll get the drift.
.
“To begin with, a decent arts attorney costs $2,000-$3,000 per day. Unless you’re losing that kind of money, or the person infringing on your copyright is making or stands to make that kind of money by marketing pirated images of your art, or you have a history of selling images of your art for thousands of dollars or more each, stop right here and go no further. Hiring an attorney makes no sense. In fact, the overwhelming majority of infringement cases involve far less money than is cost effective to fight legal battles over.”
.
Even if you do decide to fight it, often there are no assets to sue for as the offenders are often a small operation of one or two people with no assets.
.
.
This is the biggest difference between corporate copyright protection and individual protection. If Disney thinks you’ve violated their copyright they can bring the full weight of the law down on you (and they will). They can have interns scanning through thousands of web pages looking for violations and have retained lawyers firing off cease and desist notices or pursuing further legal action. As an independent artist, you do not have those resources. Furthermore:
.
there is no undo for digital. Once it gets released on the web in a digital format – the genie is out of the bottle.
.
What this means for entrepreneurial musicians
.
I’m not saying that you can’t or shouldn’t fight copyright infringement but you need to learn how to pick your battles. People who want to pirate something are going to pirate it. Some teenager at home with nothing but time on his or her hands can take all day to download parts 1-30 of your instructional video if that’s what it takes to get it for free – but most people don’t operate that way.
.
If you make it convenient for people to support you – they’re more likely to do so.
.
Here’s where ITunes got it right. People will pay for convenience. If it’s the choice between looking for a track all day and spending $.99 to download it and have it right then most people will spend the buck. Amazon and a number of other people got on the band wagon and while they’re not getting all the money to be made out there, a lot more revenue is coming in than most people realize. It’s just getting distributed amongst more and more people.
.
It’s about connections, yo!
.
Additionally, this is also where live performance comes in. It’s easy to download a song (or a cd or a library) you like without paying if you have no connection with the artist. Without a connection to the artist – music is a product – just like laundry detergent or coffee. And with any product, people are more likely to go with some balance of quality/convenience and cost. But if people:
- have seen you play live and
- if they’ve exchanged a kind word with you after a show (or just had a really good time with other people at your show) and
- associate you with that good time
they’re more likely to swipe their card at a digital turnstile to get your tracks (or swag).
.
It’s about longevity too.
.
As an artist, what you’re really looking to do is create a long term relationship with your audience. If you go to you tube, you’ll find a million videos from bands. If you have a hankerin’ to hear Rebel Yell again (and why wouldn’t you?), you can see the official video for free right now. But if that’s the end of your connection you’ll never look for what else Mr. Idol has out there. On the other hand, fans that connected to him when he was touring (like the people that lose their mind when Steve Stevens makes the ray gun sound in the solo) will be the ones that say, “Oh man I loved that cd…”, and then go to Amazon and download it on a whim.
.
Something’s better than nothing
.
Like I said, I’m certainly not for abolishing copyright. As a songwriter/composer, it makes sense to register your work but just realize that defending it is a whole other matter.
.
Additional Resources
.
In addition to the linked material above, Duke University has an excellent resource on public domain day that I recommend you check out. Techdirt has a good article on the necessity of the advantages of public domain here.
.
Filed under “Reason number 43 why Lloyd Kaufman is a hero of mine”; if you haven’t read his insightful and amusing screed on copyright and corporations here, you’re missing out.
.
Finally, NPPA has a very useful site with information on DMCA takedown procedure (DMCA stands for the Digital Millennium Copyright Act). While the post is geared towards photos it’s can be applied to musicians as well.
.
Thanks for reading!
.
-SC
“As an artist I want people to be able to experience things long after I’ve gone – and it’s not like I’ll need the money anymore. ”
If you think that the term of copyright is too long, you can release it into the public domain.
Of all the things that I would want done to my music, “remixed” is not one of them.
As long as a piece of music (or photograph, or anything else) is producing revenue, that revenue should go to the creators or their heirs, and *not* fro example to some tech company that puts it on the web for the sake of running ads against it.
In fact, if there is one thing that, more than anything else, I do not done to my work, it is being put up on a page so that a tech company can run ads against it.
The Lloyd Kaufman article was extremely poor, especially as regards Thomas Jefferson, see http://www.copyhype.com/2011/10/who-cares-what-jefferson-thought-about-copyright/ for details. Kaufman evidently does not understand the difference between a patent and a copyright, and story about the DVD-copier who became a drug dealer is certainly shall we say fiction, and in despite of the article’s title, he doesn’t even approach the subject of “why copyright sucks” other than, evidently, if it weren’t for copyright terms being extended, Micky Mouse would be in the public domain. That’s somehow an injustice? Only for someone living a very sheltered life, I would think.
PS: An interesting point: nearly everyone who is anti-copyright likes to describe copyright-supporters as “Hollywood” which is patently dishonest.
Thanks for posting! These are all interesting points – but seem to have a lot more to do with Lloyd’s post than my own.
I’m certainly not ant-copyright, and obviously as a musician I believe that creators should be compensated for their work. The issue is that the copyright law (and the American legal system) makes it prohibitively expensive for artists to protect those rights. The only entities that can successfully defend multiple copyright infringements are corporations, or individuals with large bank rolls. This is not applicable to the majority of the people I know.
The point of my post, is that given that infringement is difficult to defend against, that the independent artist is benefitted on a much greater level by developing emotional connections with fans who are then more likely to buy digital items from artists (even though they can get them online for free).
The issue of Public Domian is a much larger issue and certainly outside the scope of this small post (or Lloyd’s post or the copyhype post). I will say, my interpretation of copyright is that works are granted limited protection with the ultimate goal of going into the public domain and being a part of culture that is available to everyone.
When I saw Lloyd speak about this live, I believe he was talking about copyright revenue that Keaton was denied (implying his motivations for working on such later films like “Beach Blanket Bingo” and “How To Stuff A Wild Bikini”). But you’d have to ask Lloyd about that one….