Artist Thinking vs. Lawyer Thinking

from the which-one-is-better-for-creativity? dept

Darren alerts us to an interesting writeup by a performance artist who can't do a certain performance because of licensing issues. It's not that the musicians don't want their work used by the artist. In fact, they've spoken and they would love for their music to be used. But, of course, they don't own the copyrights on their own music, so the performer needs to work through all the licensing issues, which is simply too much of a pain -- so the whole performance gets dropped:
The thing is, I've spent a lot of time learning how to make art. I have spent no time learning how to negotiate the licensing of music. These are very different skills! It's bizarre that in order to share my art, I need to have the latter skill set, or hire someone who does. The lack of that skill set results in my work being kept secret.

It's really backward. I would love to talk to artists directly, and negotiate something that's mutually beneficial. Right? My work calls attention to their work. I'm a big fan of their work. I want to support their art and their livelihood. I want everyone to know about and support their work. It's such a natural alliance, but it's perverted by this system we have now.
Of course, what's really amusing here is that it's the same people who berate us for suggesting that artists need to either become musical entrepreneurs or hire someone who understands the business side of things, who will say that there's absolutely nothing wrong with these same artists having to become experts in the byzantine world of music licensing -- a world in which even many lawyers remain very confused.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Andrew F (profile), Jan 7th, 2010 @ 9:46pm

    Musician Exceptions

    I'd love to see it become common practice for musicians and other creators to give non-exclusive rights to distributors and publishers. I think Nina's post here is instructive. http://www.techdirt.com/articles/20091208/0259297245.shtml

     

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  2.  
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    esahc, Jan 7th, 2010 @ 9:57pm

    typo

    FYI, last sentence "a world in which eve many lawyers remain very confused."

    I believe 'eve' should be 'even'.

    Sorry, I'm the king of typos, and hate when people don't point them out to me.

     

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  3.  
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    Andrew F (profile), Jan 7th, 2010 @ 10:06pm

    Re: Musician Exceptions

    Eh, I realized the subject line of my comment might be confusing, so I'll clarify.

    If musicians do give exclusive rights to someone, they should reserve a wide range of exceptions to said exclusivity. Personal use and sharing with friends and family are obvious ones, but maybe musicians should start including exceptions like "I reserve the right to license my music to any upstart artist frustrated by your own licensing system."

    Or musicians can just not give exclusivity altogether -- that's probably easier.

     

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    The Anti-Mike (profile), Jan 7th, 2010 @ 10:20pm

    The thing is, I've spent a lot of time learning how to make art. I have spent no time learning how to negotiate the licensing of music. These are very different skills! It's bizarre that in order to share my art

    I read this and I almost spit my drink on the monitor. This is a comment on Techdirt, the site that tells musicians that being able to write songs and create art is not worth a penny, but selling lotttttts of t-shirts is a real skill?

    It's laughable.

     

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  5.  
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    Anonymous Coward, Jan 7th, 2010 @ 10:27pm

    Re:

    Don't get lost in that field of straw.

     

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  6.  
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    Laurel L. Russwurm (profile), Jan 7th, 2010 @ 10:32pm

    Big Media = Dinosaurs

    The problem of course is that under the old business model, musicians did not have a choice about giving up their copyright until they had achieved "name status". If they wanted distribution they had no choice. Period.

    The fact that technology has made it possible for artists to cut out the middle man is helping to change things a little. Of course, the industry backlash response has been to try to legislate a halt to the technology that makes this competition possible. But the music industry is losing the fight; the writing is on the wall. Which has got to be good for artists AND audiences.

    Nina Paley's excellent film Sita Sings the Blues proves that the same thing can and wil happen to the movie business as well.

    The thing of it is, stories like this one illustrate exactly how the big media companies are driving themselves toward extinction.

    Stories like this ensure it will be more and more difficult for these corporations to attract new talent. The growing percentage of independent creators have been forced to create their own new distribution networks because the big media companies have refused to adapt.

    They are putting themselves out of business.

     

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  7.  
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    Mike Masnick (profile), Jan 7th, 2010 @ 11:44pm

    Re: typo

    Thanks, fixed.

     

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  8.  
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    kyle clements (profile), Jan 8th, 2010 @ 12:16am

    Re:

    Your misinterpretation of the message is what's laughable.

    When your done with that straw man, perhaps you should go out and actually talk to some local unsigned or indie musicians.

    I have, and in many cases, T-shirts actually bring in more cash than album sales. They might sell more CDs than T-shirts, but if you are printing them yourself, the margins are higher with shirts.

    I talked to one band several months ago who actually makes most of their money from selling rolling papers!

    When on the road, bands I have talked to treat their album as 'merch' no different than any of the other stuff with their logo stamped on it.
    It's a physical thing to exchange for cash, that's all.


    But all of this is beside the point.
    Big companies are saying that copyright is necessary 'for the artists'
    The artists are saying that copyright is preventing them from making art.
    Copyright was not invented to secure corporate profits. it was invented to promote the creation of art. Copyright is preventing art from getting made.

     

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  9.  
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    Tek'a R (profile), Jan 8th, 2010 @ 12:19am

    Re: (TAM's drinking problems)

    ever since that day over techdirt..
    over techdirt? no, i dont think TAM will ever get over techdirt..


    More to the point.. the point you are deliberately ignoring. The "Very different skills" being talked about seem to be fighting lawyers and combating corporate bureaucracy.

    This isn't about "gee, that artist should realize that the business models are changing" but about the fact that the artist(s) involved Do understand the changes, but are being held back by the inertia in the prehistoric behemoths of the content industry.

    Whats next TAM? switching to snarky comments about how all the artists are dumb?

     

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  10.  
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    Anonymous Coward, Jan 8th, 2010 @ 12:31am

    We should really have a day every year where artists act like lawyers and lawyers act like artists!

    Wouldn't that be fun?

     

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  11.  
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    Nick Tann, Jan 8th, 2010 @ 1:29am

    Screw it

    I agree with Kyle regarding non signed artists.


    I'd just do the show, screw the licencing. It may even get you some publicity for your show, more than moaning abbout it on a blog....

     

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    Paul Renault (profile), Jan 8th, 2010 @ 5:10am

    But isn't the need to "hire someone who does" a lot of the reason such legislation gets created by (lawyer) legislators and reinforced by (lawyer) judges? Make work projects?

    Governments, as the financial crisis has made plain, are just supposed to be mechanism to transport money from the masses to the ruling classes. So, IP laws are just another sub-assembly in the whole mechanism...

     

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  13.  
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    The Anti-Mike (profile), Jan 8th, 2010 @ 5:50am

    Re: Re: (TAM's drinking problems)

    I understand business models are changing, musicians have to face the fact that people are now "sharing" their work, with little or no respect for the time and effort required to create new material.

    I was just thinking that learning to have lawyer thinking is the same as learning to sell the proverbial t-shirts, because both require an artist to learn something that is both not natural to them, and that absorbs time that would be better spent on being an artist.

    If they have to learn a few more things, they will likely not have any time to be artists anymore, which will resolve the issue entirely.

     

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  14.  
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    :), Jan 8th, 2010 @ 5:52am

    Pre Historic history is copyrighted too LoL

    http://www.whistlerquestion.com/article/GB/20100106/CP07/301069782/1030/WHISTLER/mexican-government- says-starbucks-owes-for-using-pre-hispanic-images&template=cpArt

    When people start using copyright to pre historic things sure something most have gone wrong LoL

    Will people pay the ancestors of pre historic man roylaties now?

    I want my cut.

     

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  15.  
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    :), Jan 8th, 2010 @ 5:55am

    Re: Re: Re: (TAM's drinking problems)

    There is an easy way out.

    Forget about "all types" of infringement get your license to say any commercial use must be paid and let the other do what they want.

    Is simple and doesn't involve lost revenues or expensive lawyers either.

     

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  16.  
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    Matthew, Jan 8th, 2010 @ 5:59am

    Re: Re:

    I'm afraid that I substantially agree with Anti-Mike on this one. Although his presentation is rather trollish, I've gotten the same impression as he has.
    1) Artist wants to make and sell music.
    2) People want music.
    Ideally, this situation should result in SOME payout to the artist. But what seems to happen is this:
    1) Artist wants to make and sell music.
    2) People want music so they copy it for free because they can.
    3) People suggest that if the artist wants to make money, he should make a sellable product, like a t-shirt, which they would buy because they like his music.
    This changes the incentive structure. Instead of rewarding the artist for making music, they're rewarding the artist only if he both makes music AND sells t-shirts. The way I see it, the purpose of copyright was supposed to be to reward the creation of music so that our artists could create culture - not worry about details like merchandising.

     

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  17.  
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    Anonymous Coward, Jan 8th, 2010 @ 6:20am

    I say if this causes performance art to cease, then bully for the lawyers!

     

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    The Infamous Joe (profile), Jan 8th, 2010 @ 6:42am

    Re: Re: Re: (TAM's drinking problems)

    I was just thinking that learning to have lawyer thinking is the same as learning to sell the proverbial t-shirts

    In what world is learning the ins and outs of the legal system comparable to "learning" how to accept money for a product? (in this case, looooooots of shirts)

    I was thinking about this topic yesterday, and I am not going to feel bad for any new artists who sign one-sided contracts with record labels. It sounds harsh, but they have options now, and if they choose to sign a shitty contract, they deserve to be bound to it. If they can't make it in this newly structured landscape of digital media and the internet, then so be it. Not everyone *deserves* to be a professional musician just because they can know how to play an instrument.

     

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  19.  
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    David Yetter (profile), Jan 8th, 2010 @ 7:47am

    It's not just musicians and artists

    The issue is broader than the arts. The most obnoxious feature of the current copyright regime is (from an American perspective) that it has ceased to serve its Constitutional purpose. It should be impossible for an artist, musician or scientist to alienate the right to grant permission to use their work in derivative works. If they want to sign away the right to make copies of a certain track, picture, scholarly paper to some commercial interest, all well and good.

    And, at least for purposes of use in derivative works music, art, scientific papers and the like should pass into public domain on the death of the artist or author.

    I suspect the shade of Robert Frost is not pleased that Henry Holt & Co. prevented Unto Ashes from releasing a beautiful track with his poem "Fire and Ice" as lyrics in his native United States. (Of course a "pirated" version of the European release is still available to their fans.)

     

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  20.  
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    RD, Jan 8th, 2010 @ 8:07am

    FINALLY HE GETS IT!!!!!!!!!!!

    "I was just thinking that learning to have lawyer thinking is the same as learning to sell the proverbial t-shirts, because both require an artist to learn something that is both not natural to them, and that absorbs time that would be better spent on being an artist.

    If they have to learn a few more things, they will likely not have any time to be artists anymore, which will resolve the issue entirely."

    Yes! You FINALLY get it! After years and years (well, ok, YEAR) of being a complete sellout corporate trollshill, you finally understand the problem!

    This is the EXACT problem with copyright, and why it does more harm than good. People spend more time (and resources) dealing with copyright issues than they do CREATING ART. The PURPOSE of copyright is to promote the creation of arts (and science, but that is more patents area). That purpose has been wholly and completely subverted so that now, instead of helping/protecting/whatevering the small, stuggling creator, it instead serves no other purpose than to enrich those in power at the EXPENSE of said creators, and the public good.

    So, yes, for once you have hit the nail 100% on the head. Bravo!

     

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  21.  
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    TonsoTunez, Jan 8th, 2010 @ 9:13am

    Copyright Gives Creators Have Every Option Imaginable

    Here's how the law works: The moment you create something you own it lock, stock and barrel. It's your property. You have exclusive rights to everything!

    Now, it's up to you to determine what YOU want to do with YOUR property. Like any other piece of property you can say 'yes' or 'no' to whatever opportunity comes along. You determine if you want to turn your rights over to someone else, and, if so, how many or few of the rights you own and for how long.

    Like any other negotiation, the determining factor usually has to do with what those who wish to acquire your rights promise in return.

    Therefore, the most important thing a creator can do is understand what rights he or she owns at the date of creation - and what the consequences and opportunities might be if he or she decides to assign those rights to others.

    If creators want to go it on their own ... today's world gives them every opportunity to do so ... until they sign on the dotted line.

    Oh, and did you hear, Jamendo, a community of free, legal music published with Creative Commons licenses is in financial trouble and looking to sell?

     

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  22.  
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    Gene Cavanaugh, Jan 8th, 2010 @ 9:17am

    Artists vs Lawyers

    Enormously uninformed thinking here; lawyers are advocates, and what is at stake is the POLITICAL climate that allows this. Should be Artist Thinking vs Politics; otherwise, you would blame the postman for bringing you junk mail (and amazingly, some people do!).

    Now, has it occurred to anyone that except for very complicated things like IP, a significant problem tends to get fixed? We could argue that the reason this is a problem is that it is "complicated" (good luck on that); but a better argument is that it isn't very significant.

     

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  23.  
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    Nastybutler77 (profile), Jan 8th, 2010 @ 10:16am

    Re:

    Actually, the reverse is true. Governments take money from those that achieve success and "transport money" to those who are too lazy to work hard.

     

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  24.  
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    Karl Fogel, Jan 8th, 2010 @ 10:34am

    Re: Re:

    @kyle clements: "Copyright was not invented to secure corporate profits. it was invented to promote the creation of art." Kyle, we're coming to the same conclusion I think, but just for some historical context -- it's actually the other way around: copyright was not really invented to promote the creation of art, it was created to secure corporate profits. And "secure" is the right word here. The publishing industry lobbied for copyright on the grounds that they could not afford the up-front investments in printing without some kind of exclusivity -- a monopoly -- on the work being printed. Otherwise their competitors would wait in the wings and cherry-pick just the successful books. The argument made economic sense at the time (before computerized printing presses, before the Internet), and I don't mean to denigrate it. But it does mean precisely that copyright was invented to secure corporate profits -- it was invented as a commercial monopoly for printers, not primarily as a way to provide an economic basis for the creation of art, although the monopoly did start with the author and the idea was that some of the commercial benefit should flow back to the author too. The full history is a little more complex than that (it also involves a censorship law). You can read about it here: http://questioncopyright.org/promise#history

     

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  25.  
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    PRMan, Jan 8th, 2010 @ 10:45am

    Why not?

    Why don't they just hire the band to write custom music for the performance that is not already a popular Big 6 song. If they are good artists, people should like those songs as well. Then he could sell "exclusive" CDs of the songs at the show as well as online.

    This really isn't that hard, is it?

     

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  26.  
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    Anonymous Coward, Jan 8th, 2010 @ 12:46pm

    Re: Copyright Gives Creators Have Every Option Imaginable

    So's the recording industry.

     

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  27.  
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    anonymous artist, Jan 8th, 2010 @ 1:24pm

    re: why not

    @ PRMan

    Coming from the perspective of an artist with limited means, this solution still poses a big hurdle. That is: get the money to commission and record a work, and commit the administrative time to selling the exclusive cds.

    The benefit of the already existing songs is just that: they already exist. They're in every regard easier to use, except one, and that one ends up being the deal breaker.

    What the current copyright setup does is require the collaborators in question to come up with work-arounds to what would otherwise be an easy collaboration.

     

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  28.  
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    kyle clements (profile), Jan 8th, 2010 @ 4:35pm

    Re: Re: Re:

    I don't disagree with a single point in your argument, but you seem to be missing one important point. When is reality ever ideal?

    I'm not saying that it's necessarily a good thing that content is being shared. I'm saying it's a fact of life; content is being shared. All attempts to stop it have failed, and nothing on the horizon seems like it has a shot of working, either.

    The internet has been designed to be a redundant system that routs around damage, and it does that job really well. Storage and bandwidth are getting bigger/cheaper, and more media is being digitized. This reality is a nightmare for content owners, because it makes it really hard to stop something from spreading once its out there. It only takes one person to crack your lock, and after that, the whole world has access to it. Trying to stop this is a losing battle.

    So, artists have three choices:
    One is to ignore these realities, go about business as usual, and try to sell items that can be freely obtained elsewhere.
    The second option: Produce content that can not be reproduced, copied and recreated very easily. Painters, sculptors, and other creators of unique, one-of-a-kind goods fit into this category.
    The third option: Accept defeat, realize that your content is going to be copied, you're not going to make much off content sales directly, so you must find other ways to make money. Why not use what people want (content) to get them to buy other stuff (limited edition stuff, prints, t-shirts, etc).

    The incentives have changed. The technology has changed. The world has changed. So why should we expect business models to stay the same?

     

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  29.  
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    kyle clements (profile), Jan 8th, 2010 @ 4:45pm

    Re: Re: Re:

    Thanks for the info.

    I'm visited that site a few times, but I've never read that article before.

    I seem to have missed something that I normally catch:
    The wording used to describe any law usually means the exact opposite of what that law actually does.

    eg. a 'privacy bill' most likely means, "these entities can now legally violate your privacy"

    In legal speak, "promote the progress of the useful arts" would mean: secure profits of the middlemen who stand between creators and their audience.

     

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  30.  
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    TonsoTunez, Jan 9th, 2010 @ 8:52am

    Re: Re: Copyright Gives Creators Have Every Option Imaginable

    Anonymouse says: "So's the recording industry."

    Which I'm guessing is in response to my comment:

    "Oh, and did you hear, Jamendo, a community of free, legal music published with Creative Commons licenses is in financial trouble and looking to sell?"

    And I say, so what? The record industry's problems are the record industry's problems ... if they aren't cleaver enough to find a way to make a profit by promoting artists ... then they should die.

    My point is this ... the great free society people thought the Creative Commons was going to bring us ... ain't happening either. Nobody give a crap about music nobody give a crap about... the artists who contribute to the Creative Commons obviously don't give a crap about their music... so who will?

    Copyright provides a path for independent artists... they have yet to find that path ... The power in now in their hands to do so. I wish them God's speed. And, you should support them by not stealing from them.

    As stated by Chris Castle: ...contrary to the popular cant, there is not a market failure online. You cannot have a market failure if you have no market, and you cannot have a market without enforceable property rights.

    Everyone artist needs to fight for their right to make - and get paid for their music.

    Everyone should support the artists efforts to find their own way.

     

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  31.  
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    Anonymous Coward, Jan 10th, 2010 @ 6:33pm

    Re: Re: Re: Copyright Gives Creators Have Every Option Imaginable

    Wow, so much stupidity in one post.

    Copyright infringement != theft.
    Copyright is not a property right.
    Artists who license their music under Creative Commons don't necessarily care any more or any less than any other artist.

     

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  32.  
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    Scott McIntosh, Jan 10th, 2010 @ 10:38pm

    Answers all the questions

    Great book I just read discusses a lot of these subjects. Recommended to me by Hypebot's blog. I highly recommend it as you all seem very passionate discussing the changing music business.

    Music 3.0: A Survival Guide for Making Money in the Internet Age

    by: Bobby Owsinski

    -Scott

     

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