You may recall a few weeks back, we had a guest post from musician Erin McKeown about her reaction to finding out that a Sony Music artist had copied one of her songs without credit, and the copied song was now becoming a hit. That story kicked off quite a discussion. A few days later, I actually got to meet Erin in person at the Innovate/Activate conference, and we had a really enjoyable chat about the whole thing. So I was interested to see that Erin recently launched a crowdfunding project for her new album on PledgeMusic. PledgeMusic is a platform that's similar to Kickstarter, but focused just on music (obviously). It has some nice features (music player plus the ability to share some of the proceeds with charities) and some oddities (total goal amount isn't clear, and no way to embed anything?!), but if you understand Kickstarter, you'll understand what's going on here.
Of course, tons of musicians (and other creators) have jumped on the crowdfunding bandwagon over the past few years, so just seeing "yet another" project isn't newsworthy by itself. But what struck me about Erin's approach was that some of the tier offerings solidified an idea that had been bouncing around in my head lately about these kinds of projects: the ones that work are somehow uniquely personal to the artist in question. Figuring out what goes into the tiers is always something of a challenge, but I think going with purely generic tiers doesn't do much. I've said before that it's important for artists to understand the kind of relationship they have with their fans and build on that, and it appears that Erin does exactly that with her tier options. Some of them are just amusing, like offering her first Spotify check to a backer, or the anti-SOPA petition video she did during the SOPA fight.
But then there are some that seem like they're totally out of left field... and many of them really show off Erin's personality. Things like having her buy some books for you. Or spending an hour fixing your fantasy baseball game. Or actually going to a baseball game or a museum with her. Or, best of all, getting to play a game of wiffle ball with her and some friends (she seems to like baseball).
Now, again, quirky tier options aren't a new idea. We've been writing about them for years, and I know how some of our usual critics will react: with horror at the idea that Erin has to help people with their fantasy baseball teams to get them to support her music. Hell, we heard exactly that criticism three years ago when we highlighted Josh Freese's hilarious tiers, which included things like playing mini-golf with you, or getting lunch at PF Changs, having him wash your car, or giving you a tour of Disney land. To this day, one of our usual critics still brings up the mini-golf example derisively, arguing that if the new business model means musicians have to play mini-golf with their fans to get their support, the new model is a failure.
But that totally misses the point. No one is arguing that playing mini-golf or wiffle ball with your fans is the future of the music business. We're saying it's all about the kind of person you are and how you connect with your fans. That is, what works has to be something that is unique to the artist's personality, and which fits well with the kinds of things that make fans like that artist in the first place. One assumes that Josh chose minigolf and Erin chose baseball/wiffleball not because it was some horrific thing that they didn't like, but precisely the opposite: because those things are fun to them and they wanted to offer up something fun and unique that they could share with their fans as well. And, in both cases, it seems like they're succeeding.
These kinds of offerings help the artist not just make money, but to better connect with their fans by letting their own unique personality shine through. It's that kind of personality that makes people want to support the artists. It's not because they want to play mini-golf or wiffle ball, but that they like supporting the artist in a manner where the artist gets to have fun as well. And that's pretty cool.
We recently posted what I thought was an interesting essay by musician Erin McKeown on her reaction to seeing someone copy a song of hers, and have that other song become a "hit." We thought it was an interesting and nuanced exploration of some of the challenges of being a musician and thinking about copyright -- from both an emotional and logical perspective -- and thought it would make for an interesting discussion. And, in fact, it did make for an interesting discussion. With well over 100 comments, representing a variety of different viewpoints, there was a pretty deep dive into the myriad responses the piece brought out. Like pretty much any online discussion, some of the comments were more polite than others. But, when viewed on the whole, it struck me that the conversation was much more polite than most online discussions around copyright. In fact, what was interesting was that because the discussion was quite nuanced, most of our usual haters didn't take part. So we didn't have, for example, anyone calling me a slimy lying sociopath or a disgusting human being.
Some of the comments were pointed in their disagreement with Erin, but almost immediately others came in to defend her, and the overall discussion was quite interesting in my mind. And, yet, a bevy of the standard Techdirt critics took to Twitter to claim that Erin's article was proof positive that Techdirt was pure evil, hated artists and was the disgusting underbelly of the internet (a very close paraphrase of actual statements). I'm not going to link to any of these, because I don't mean to call out those people specifically. Similarly, there was a thread on a music site that was entitled "why does Techdirt hate musicians?" I suddenly had people tweeting at me, personally, about how I was somehow destroying music and why did I not want artists to get paid.
I honestly can't figure out why this was the response. First of all, we've regularly been attacked because (we're told) we never, ever post an article where we show sympathy for artists' difficult plight these days. So here was an article, from a musician, explaining her plight -- and we get attacked for that?!? Furthermore, I'm long since past the time when I could read all the comments on the site, but I do read a pretty large number of them, and the amount of hate and vitriol that has come from Techdirt haters (see above, for two very recent examples) is way, way, way, way beyond anything seen in that particular thread.
In fact, the further you read into the comments the more you realize it's a detailed and nuanced discussion on many important issues. People don't agree, but no one's calling each other a slimy lying sociopath or a disgusting human being. Yet, because a few commenters (not even the majority, as far as I can tell) disagree with Erin, all of Techdirt hates musicians? There were a few tweets and statements elsewhere saying that Techdirt hates it when artists make money. Of course, that's ridiculous. We regularly celebrate artists earning money -- sometimes lots of money. What we get nervous amount is when artists start making use of laws in ways that may actually do them more harm than good in the long term, by attacking their fans as if they were criminals, or when they seek to abuse laws that take away fundamental rights of others.
But, really, what was most amazing to me was how quick some of these people were to jump on the entire Techdirt community, because a few comments disagreed with one musician's opinion. They ignored everyone who came to her defense. They ignored the fact that we posted the story in the first place. They ignored all the people on other stories who attack Techdirt supporters in often extremely personal ways (I've been threatened with physical harm as well as seen multiple comments I won't repeat about my family). But most people -- myself included -- see those kinds of comments as part of the price you pay for having an open discussion. Some people are going to disagree and some will use different levels of speech, some more polite than others. To tar and feather everyone on the site because someone on it disagrees with your personal views is to suggest that every community online is a problem.
Is it that difficult to distinguish a nuanced conversations where not everyone agrees with each other... from the "dark underbelly" of the internet?
Erin McKeown, a wonderful musician who has been very involved in some discussions on copyright and internet access -- and who was especially helpful in the fight against SOPA -- recently wrote the following thoughtful, heartfelt piece concerning the emotional roller coaster of having someone copy your work, and how all of this relates to copyright law.
I always knew my song "Slung-lo" was a hit.
It just took longer than I expected.
"Slung-lo" came out on my 2003 album, grand (Nettwerk). It found its way to the Brittany Murphy masterpiece "Uptown Girls" and into episodes of "Roswell", "Gilmore Girls", and "Privileged". It also found its way into a Tesco F&F commercial, which ran in the Czech Republic in the summer of 2008. Though not a hit by any means, it was a remarkably long life for a song that came out in 2003.
And then last year, I received two separate emails through my website pointing me to this video for a song called "Touch The Sun" sung by the Czech artist, Debbi. (editor's note: we tried to embed the official video for this song, but Sony Music refuses to allow an embed on the song).
"Have you seen this?" both emails asked. I hadn't.
From the first moment I heard "Touch The Sun," it was as clear to me as anything that someone had taken the DNA of my song "Slung-lo" and turned it into another song. At this point, my lawyer wants me to make very clear that IN MY OPINION, THIS IS COPYRIGHT INFRINGEMENT.
I don't want to spend a lot of time technically breaking down the two songs, but I'd like to point out a few things. Among the many substantial similarities between them, check out the lyrical content (weather as metaphor for happiness), the almost exact song structure (solo verse, band verse, double-tracked vocal in the chorus...), and the vocal cadence in unison with the descending instrumental line in the chorus. I could go on.
Debbi's "Touch The Sun" isn't the proverbial "kid in the bedroom with a laptop" who remixes pop culture and makes mash-ups to show how alike we humans really are. No, it turns out the song was written for a commercial scale beer campaign by the giant European alcohol company Metaxa, which itself is a subsidiary of the global beverage conglomerate Remy Cointreau.
And it is a hit. A huge one. Debbi was the runner up on the Czech version of the "Idol" franchise. The song won "Song of the Year" at the Czech version of the Grammys. The original video that was sent to me has almost a million hits. A quick search of YouTube reveals karaoke versions, animations, "how to play versions," and plenty of people in their bedrooms playing the song and singing along. The beer ad with the song aired across the Czech Republic more than 1200 times in September of 2010. That's about 40 times a day.
So, after all this time, "Slung-lo" is finally a hit.
The easy part of this story is that I work with an amazing publishing administrator, Duchamp, who has stepped in to help me. We've retained Czech council who have been in contact with Metaxa, Debbi's record label (Sony!), and the Slovak production house that produced the track. All have denied any infringement, declined to settle, and at this point, court proceedings have started. My lawyers estimate that this could take anywhere from one to five years.
This spring Remy re-launched the ad campaign across all of Europe.
By the way, the writers are Tomas Zubak, Peter Graus, and Maros Kachut. Let's #kony2012 them.
Actually let's not.
Instead, I want to talk about the whole host of emotions this experience has brought up for me, and the way it's forced me to confront and articulate my beliefs about copyright.
After watching the video for the first time, I was certifiably apoplectic. I was physically shaking with anger. How dare they! I wasn't so much angry at Debbi -- who, from what I eventually read, really just sang the damn thing -- as I was at the writers. They had to know what they were doing, I fumed. I mean, the song was just in a commercial there. They had to know about it. How dare they!
And then I felt small. I'm nobody, I thought, so they probably figured they could get away with it. It's not like they ripped off Beyonce. Just small-time me.
And then I felt defeated. I've always wanted to have a hit like "Touch The Sun". And I thought I wrote one in 2003. It was such a great disappointment to me that no one noticed. There will never be enough people to notice me, I thought.
And then, I would find myself dreaming. Maybe I'll get a settlement. Maybe it will be large enough to make all my problems go away. I'll be able to pay for my new record. I'll be able to afford the best marketing and publicity money can buy. And then there will be some left over to buy a house. My life will change!
Finally, I disconnected. I couldn't tell very many people about what was happening, and the feelings were overwhelming me. Ok, I thought, I'll just let the lawyers do their lawyer thing. This is why you pay them. I am powerless. Breathe deep and exhale.
Very early in the process, my lawyers asked me what I wanted to be the goal of my settlement. Did I want 100% of the money made? Did I want a flat fee? How much? Did I want a public apology? Did I want to let it go? Did I just want credit?
These questions became a spiritual exercise. I began to think that how I answered them said something about who I was as a person.
I believe that creativity is an unpredictable, mysterious process. I often have no idea where a song comes from. Other times I am more aware of the hard work. It is not always an easy thing to know where influence ends and mimicry begins. But there is also a way we recognize ourselves in the faces of our children, and a gut instinct that tells me when I am hearing my own musical fingerprint.
I thought for awhile, and decided I would like 50% of all the monies made so far, and 50% on everything moving forward. I didn't need a public apology. I think this is fair, not punitive, and given the current copyright law system and options available to me, a reasonable request.
Now I just have to wait one to five years to see how it turns out.
Recently, I've ended up doing a lot of advocacy and policy work around copyright. This isn't because I am a copyright crusader, for or against, but because the issue gets tied up with so many other things I care about: media access, fair compensation for artists, creating a sustainable music business.
I actually hate to talk about copyright because, once it's brought up, it just seems to take over any conversation. Most of the time I feel like that conversation then becomes counterproductive. People throw around complex legal principles. The jargon resembles a foreign language. Often, the emotions get so heated that a room ends up divided at just the time when we need to work together. I've also noticed that most of the people crowing about copyright aren't individual copyright holders. They're groups of people who make money from the business of policing and administering copyright.
In my advocacy, I want to talk scale. I want to talk relationships and power structures. I want to talk about technology. Copyright is part of this, but it's not the whole enchilada. I've come to think that current copyright law is like an immovable boulder in the middle of a rushing river. It's not likely to change, so I'm going to have to work with it, as it is. And not let it stop other important work.
Yet here I am facing a difficult situation where copyright is the main issue.
I recently watched Kirby Ferguson's "Everything Is A Remix" series and found it really helpful to understand the feelings that came up for me around "Touch The Sun." In part four, Kirby makes the observation that we humans are easily and freely influenced and inspired by the world around us. However, when we feel like something has been taken from us, we get very angry and indignant. Our anger is as natural and essentially human as is our borrowing or being influenced.
Really how I feel about copyright is this: can you please just ask me? I am so easily found. One or two clicks, a badly mangled combination of "erin" and "mck" will get you to me. Let me know what you're doing. Let's talk. Take some time and connect with me. I know this is imperfect. Sometimes in the creative economy, there just isn't time. But how about we try?
I'd also like us all to acknowledge that the current copyright system, the unmovable boulder in the stream, rather than protecting rights holders and acting as a deterrent to infringement, is in its very complications a shelter for those who use others' material without permission and an obstacle to those who would like to legally use or remix content. Whether it is done consciously or unconsciously, nefariously or in communal bliss, given the complicated, arcane process, the myriad hoops to jump through, the length and cost of the process, who can afford to participate?
So Tomas, Peter, and Maros, I won't assume your motives in turning my song "Slung-lo" into "Touch The Sun." Instead, I'll say this: if you asked me, we might have worked something out. When I found you, we might have worked something out. Who knows, maybe we could have advanced the conversation around copyright and made a radical contribution toward a different type of economy. Instead, it will drag on in court. And I will fight it in court as long as I have to. But this could have gone another way. And for that, I am sad.
Erin McKeown is an internationally known musician, writer, and producer, releasing 8 full length albums in the last decade and spending an average of 200 nights a year onstage. She has appeared on Later with Jools Holland, Late Night with Conan O'Brien, NPR, BBC, and has had numerous film, television, and commercial placements. She's even written a song via text message with her friend Rachel Maddow. Lately, she has added mentor and activist to her resume. She is a board member at the Future of Music Coalition and a 2011-12 fellow at the Berkman Center for Internet and Society. Visit her website www.erinmckeown.com for more info and to join her mailing list.
Special Thanks to Mike King, Andy Sellars, my lawyers, Lawrence Stanley and Vaclav Schovanek, and Erik Gilbert at Duchamp for their help researching and proofing this post.
from the a-picture-is-worth-a-thousand-copyrights dept
For the most part, furniture designs can't be copyrighted. Just like fashion, which thrives without copyright, the furniture industry serves as an excellent example of why intellectual property is not necessary to promote innovation and commercial success. Copying happens in these industries, and while it's sometimes fought on trademark grounds, the prevalence of cheap knockoff products is an unavoidable reality. But cheap knockoffs are exactly that, and they meet the demands of a different market segment, where low price is more important than quality, so the original designers can compete either by focusing on their strength in the high-end market, by entering the lower market with their own cheaper products, or both.
If you didn't watch the video, suffice to say the two knockoffs snap like twigs, while the original withstands the same punishment without any signs of damage. Fritz Hansen has rightly recognized what it offers that others don't, and has found a high-impact way of demonstrating this advantage. Naturally some people won't care: they will choose affordability over durability. But those people were probably never going to buy a $500 chair anyway, whether or not cheap alternatives for that specific design are available. Meanwhile, customers who value and can afford top-quality merchandise see a clear demonstration of what they're getting for their money, and one that reflects well not just on the Series 7 but on Fritz Hansen's entire line.
It's extremely rare, in any industry, for one creator to copy another without adding or changing something—a lower price point, better marketing, a better distribution model, a valuable curation service. This is how copying expands markets: originators and copiers must both focus the things that make them stand out, which means finding ways to make a product appeal to new and different people. Strong intellectual property protections exist to shut down such copying, but as industries like furniture and fashion demonstrate, this is unnecessary and potentially quite detrimental. Beating your competitors in court only proves that you were first—obliterating their products on YouTube proves that you're better.
It's about a photographer Noam Galai, who had posted a photo of himself screaming on Flickr. A few years later, he discovered, much to his own surprise, that the photo was being used all over the place. The photo is on t-shirts, in magazines, on book covers and a variety of other places. But rather than freak out and go ballistic (or legalistic) about it, he went a different route. He embraced it. He started posting an archive of everywhere that he'd seen his own face appear -- including as a symbol in the Iranian protests against the government. And then others came and saw the archive and sent in more examples they had seen. So now, he's set up an entire website, TheStolenScream.com, a blog of all the uses of his image he finds... and (quite smartly) his own store to sell things with the image printed on it.
David Bergman, from F-Stoppers, points out that his first reaction, like many he spoke to, upon hearing this story was to wonder if he was suing anyone, or if he was trying to protect his works. He even notes that he "couldn't understand" why Noam didn't seem particularly upset about all of this. And, eventually, he came around to realizing that maybe this wasn't a bad thing:
There is no way to know for sure but I bet if Noam had watermarked his images from the start, none of this would have happened including the Glimpse Magazine cover. The people that were looking for "free" images online would not have contacted him if his images were watermarked, they would have simply found another image to use. By allowing his images to be public, Noam has gotten to experience something that many artists would give anything for. In my opinion, this experience is worth more than any advertising agency could pay for the image. Noam has made almost no money on these images so far, but I believe the money will come. I know many, if not most of you, will disagree with me but I see Noam's Stolen Scream as an amazing example of art and the power of technology. I believe everything worked out for the best.
Not only that, but I'd bet people are now a lot more willing to buy all that gear from him directly. First, because of the whole "stolen scream" concept, he's getting even more attention, and the image is getting additional attention. On top of that, people now know that they can support the original creator directly, something which often drives people to buy. It's really a great example of how to respond to such a thing. As he says in the video:
This is the thing. Artists like their work to be published and seen by as many people as possible. Usually, when someone paints a nice painting, he wants as many people as possible to see it in museum. I'm not a big fan of people stealing my pictures, but it's better than not having all those people see my pictures at all. It's another way to publish my work. It's not me publishing it, but it's other people publishing my work for me. If I had taken this picture 20 years ago, the only place it would be is in my room and that's all. I don't think anyone would know about this picture.
There's also a funny bit at the end, where he tried to offer the image via a stock image service, and it was rejected, because the stock photography company claimed there wouldn't be any interest in that photograph. As Noam says, "I guess they are wrong."
Of course, we've seen this elsewhere as well, but it's always nice to see yet another example of people realizing that there can be massive benefits to others promoting your work for you. You just have to learn how to embrace it, and set up ways to capture some of that benefit.