Vandals' Bass Player Not A Fan Of The Public Domain, Thinks PD Recordings Will 'Destroy' Classical Music

from the is-this-a-joke? dept

We’ve covered how Vandals’ bass player, Joe Escalante, a former entertainment industry lawyer, is currently in the middle of a legal fight with Reed Elsevier over a parody logo the band briefly used — but has since stopped using. His discussions of the lawsuit have been interesting and informative, so I’m a bit shocked to see the following article, submitted by a bunch of folks where Escalante goes a bit off his rocker in attacking the public domain as “communism.” Honestly, I had to read it a few times, and am still sort of wondering if this is pure satire. If it is, bravo. If it’s not, Escalante may have taken cluelessness about the public domain to previously unheard of levels.

At issue? The story we recently covered of how the folks at Musopen wanted to raise money to hire an orchestra to record public domain symphonies, and release the recordings into the public domain. As you’re hopefully aware, while such symphonies are in the public domain already, new recordings of those works are not. The composition is still public domain, but the recording gets a new copyright. Thus you really can’t find public domain recordings of many of these works — something which Musopen is helpfully looking to fix. That effort has been a massive success, with the group far surpassing its original goal of raising $11,000. In fact, Musopen has said that the more money they raise, the more songs they’ll record and release into the public domain with the orchestra they hire. Who could possibly complain about that?

Escalante apparently.

Does this sound nice to you? If it does, you are forgetting one thing.You are forgetting that if these recordings have some commercial value it creates a market for them which not only employs musicians, it encourages better and better recordings and orchestrations that benefit all of society. Destroy their commercial value, and you destroy a lot more than you realize.

This makes absolutely no sense. Putting something into the public domain creates all sorts of additional commercial value in that it makes those works usable in all sorts of new and interesting ways. That’s why we have the public domain after all. And, just because something is in the public domain, it doesn’t “destroy” the value of the work. That’s economically wrong, as has been shown over and over and over again. Allowing a work to hit is actual economic price, leads to a much greater economic efficiency, enabling all sorts of additional commercial opportunities. With the statements above, Escalante shows why he’s a lawyer/bassist, not an economist.

Is it that offensive to these people that musicians should get paid for mastering their chosen instruments and making the sacrifices necessary to become a professional? Or is it crazy if someone gets a return on an investment to undertake the enormous task of recording a 100 plus person orchestra? Carried to it’s logical conclusion, someday all classical recordings will be in the public domain so this faction of the recording industry can just shut down. Now you can tell your kids not to waste time learning the cello, because there’s no way to earn anything from the sacrifice, so don’t go to orchestra practice. It’s a waste of time.

This is the paragraph that made me wonder if this is really pure satire. Escalante should go look up the history of the music industry. When player pianos first came out, the industry said that no one would ever go see live music again. When the radio came out, we heard the same thing. All through history, every time something new comes out, we’re told that it will “destroy” the previous industry, but that’s never happened. Making public domain recordings does absolutely nothing to remove the “return on investment” of an orchestra. Did Escalante really miss the fact that Musopen just raised a ton of money to pay this orchestra to make this recording? If he didn’t get confused, then why is he claiming that this action to pay musicians is “offensive” to those who believe musicians should get paid? Furthermore, just because there’s one public domain recording, there will be no market for orchestras? Seriously? This is the identical claim to the idea that player pianos would kill off musicians, because who’d ever need to see a live musician when they can just stick a piano roll in the player piano.

So we should let people make films and sell them and keep all the money instead of giving some to the musicians and encouraging their pursuit of these arts?

First of all, the musicians got paid. Why does Escalante keep ignoring this? It’s like a giant mental block. On top of that, one of the important parts of the public domain is the fact that it allows others to build on previous works and create new sorts of works. Escalante seems wholly ignorant of the public domain. If someone sends me his address, I’ll gladly send Escalante a free copy of Jamie Boyle’s excellent book The Public Domain, so he can learn a bit about why the public domain is so important, and why it’s a complete myth that it harms anyone.

Can you believe this? Why not hire sound alikes to record all the works of the Buena Vista Social Club so we can get around paying those suckers. We can avoid paying at least 1/2 of what we used to have to pay to license their works. They’re seminal, why not? Esguerra actually calls this a “creative solution” to the problem of having to pay for the rights these musicians have obtained by sweat and talent. Does he also agree that waiting until midnight with a brick in your hand is a “creative solution” to the problem of having to pay for a plasma TV as well?

Again, I’m left wondering if Escalante is being satirical here. Just look at the video games Rock Band and Guitar Hero. For a while, both of them regularly used “sound-alike” recordings for bands that didn’t want to license the originals — and fans hated it. They wanted the originals. The claim that you could just hire a sound-alike and that’s fine is provably false. People want the originals. It’s already legal to record sound-alikes if you pay compulsory licenses, and it hasn’t damaged anyone.

And please don’t confuse this with the concept of “music should be free” because we’re in a “new era,” etc. It is nothing like that. My band The Vandals allow many unauthorized uploads on YouTube and other places as a measure of good will, we don’t run around and bust infringers routinely. We get it, they listen, they might come to a show or push some kind of demand for us. Musopen is not a part of that movement, make no mistake. They are extremists trying to deprive honest working people of what they already earned to spite them for having the audacity to charge for their services.

Seriously? Putting public domain music into the public domain is “extremist” and “deprives honest hard working people” of what they’ve earned? Someone seriously needs a massive history lesson on the public domain.

The EFF calls for “music lovers” to support them with their wallets. This isn’t for music lovers, it’s for music killers. I actually used to have respect for EFF. I thought they were an important part of the debate but this is off the deep end.

Supporting the public domain is killing music and “off the deep end”? No, Joe. Telling people that supporting a larger public domain is what’s off the deep end. The public domain is where great creativity and great creative works come from. It’s the endless fountain of resources that people can pull from to do amazing new things. I actually used to have respect for Escalante for his fight with Reed Elsevier. I thought he was an important part of the debate, but this is off the deep end.

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Comments on “Vandals' Bass Player Not A Fan Of The Public Domain, Thinks PD Recordings Will 'Destroy' Classical Music”

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Richard (profile) says:

Re: Re:

They have already got quotations from various orchestras for the work. The original $11,000 target was based on those quotations.

If you don’t believe them then check the following calculation:
The Prague Symphony orchestra is giving a concert this month in the Smetana Hall (capacity 1100) tickets are 450- 600 Koruna ~ $20- $30 implying that you can certainly buy this Orchestra for an evening plus rehearsals for under $30,000. A recording studio will almost certainly be cheaper than a large concert hall.

The extra money we have now got can be used to hire a better orchestra and/or record more music.

Laurel L. Russwurm (profile) says:

Re: "Good luck recording, mixing, and mastering a full orchestra for $10,000"

It never ceases to amaze me how quick the knee-jerk “it can’t be done because…” reaction comes out.

Everything has gotten cheaper. What Hollywood pays to record a soundtrack has traditionally been higher than what an Independent would. I know for a fact that it is possible to make a studio recording of a full length commercial quality CD with an 8 piece band for CDN$ 1,000. So $10,000 for an orchestra doesn’t sound all that out of line. Particularly if you factor in the fact that many people would be willing to volunteer their services for such a good cause– as we’ve already seen here.

Hulser (profile) says:


Let’s say that Mr Escalante is right an that that recording public domain symphonies damaged the overall classical music market and the reduced demand for live musicians. This is just a just a natural part of capitalism. It’s simple competition and supply and demand at play. So, because he’s against competition…he must be anti-capitalism, right?

As Mr. Esclalante would say, “That’s just plain old fashioned communism!”

What a hypocrite.

Hulser (profile) says:

Re: Re: Communism

The copyright industry does not compete in a free market.

No, they don’t. But nobody is really surprised when the big media companies or even big name artists say they’re for policies which are actually anticompetative. What’s surprising in this case is that you have a member of a less-well-knowm band bashing competition who is also on record as being against copyright maximalism. He doesn’t come out and say it, but the logical conclusion of his stance is that there shouldn’t be a public domain or that there should be some kind of law to “protect” musicians from the public domain. The irony of course is that his (presumed) solution is more communist than what he accuses Musopen of.

Communism? You keep using that word, Mr Escalante. I don’t think it means what you think it means.

herodotus (profile) says:

This is absolutely ridiculous. And the fact that the guy is talking about encouraging ‘better and better recordings and orchestrations’ shows that he knows nothing about recordings of classical music. There are no ‘orchestrations’ of the classics, unless you are talking about student editions that have the hard pasrts left out.

And in any case, no ‘orchestrations’ will be used in this project anyway, because the orchestrations wouldn’t be in the public domain now, would they?

If I hadn’t seen this article myself, I wouldn’t believe it. It sounds too much like a parody to be real. But it seems not to be all too real. Sad.

weneedhelp (profile) says:

I stopped right here

“Now you can tell your kids not to waste time learning the cello, because there’s no way to earn anything from the sacrifice, so don’t go to orchestra practice. It’s a waste of time.”

So this loser thinks since you cant monetize your playing the Cello, its not worth it. So if you cant get cash, its not worth it. What a sad sad outlook on life. I hope he does not have kids.

jupiterkansas (profile) says:

we need more Beethoven

Beethoven’s symphonies have already been recorded HUNDREDS of times. There really is no financial incentive to create another one, and yet major music labels still do, and classical musicians still get paid.

Obviously there’s room for one more recording in this world, and as someone who can’t afford to hire an orchestra to record a symphony for my Youtube video, let alone license an existing recording, I’d welcome a public domain recording.

He should be happy they’re actually hiring new musicians for this project, rather than simply buying the copyright of an older recording.

cc (profile) says:

I’m surprised people are missing this: Will the free recordings of the symphonies discourage new recordings any more than existing commercial recordings that are already considered “ultimate”?

There have been amazing recordings of Beethoven’s symphonies (von Karajan, anyone?), so someone could argue nobody else will bother to re-record them, because they couldn’t possibly do a better job.

Yet, hundreds of orchestras play and record the works of Beethoven every year.

Given Mr Escalante’s thinking, we should have stopped von Karajan from making his recordings, because it could have discouraged others from making new recordings. Of course, that’s totally stupid.

Free recordings of the symphonies can only push up the quality of future commercial recordings, because if those orchestras wish to compete with the free versions, they have to do better. This is a good thing, because it’s the best possible way to “promote the progress of the useful arts” and Escalante is a fucking idiot.

wallow-T says:

In 2005, the BBC produced MP3 recordings of the 9 Beethoven Symphonies, as part of a celebration called The Beethoven Experience. These recordings were made by a BBC orchestra — the BBC maintains a number of classical symphony orchestras around their country. Each of the Beethoven symphonies was available for free download for about a week.

The companies involved in selling recorded classical music went absolutely nuts, claiming that the BBC would destroy the market for classical music. The companies brought sufficient political pressure to bear so that the BBC promised never to repeat the project.

Scote (profile) says:

If Public domain is so bad why do we still play public domain compositions????

If putting music in the public domain is soooo bad for music and musicians why hasn’t the public domain already killed off classical music? I mean, it is in the public domain after all, so surely there can’t be any people still composing music for money anymore? Right? Oh, wait, Joe Escalante is an idiot. His own argument contradicts itself.

Paul or something (profile) says:

Sounds like this guy wants to kill classical music

This guy has absolutely no clue about classical music. The whole point of multiple recordings of music is to be able to listen to interpretations of the conductor, how different themes are presented, or maybe even differing interpretation of tempos. In music classes you are taught how to study what the composers intentions may have been as he was writing the music so you can interpret it correctly. A group of great works in the public domain can only strengthen classical music and build a market to hear live performances. Music is truly to be experienced not just heard. What do you expect from a lawyer that writes crap radio songs?

Pseudonym (profile) says:

Re: Sounds like this guy wants to kill classical music

Exactly. Classical music was designed to be played in a concert hall, not fixed in vinyl or bits. Every time you go to a concert hall and hear a Beethoven symphony, you get a different piece. And that’s the way it’s supposed to be.

Symphony orchestras make most of their money off live performances of public domain works. They use this in turn to get people into concert halls to listen to the rest of the programme: new works by new composers. And that is how new composers get paid.

If you want to do classical musicians a favour, stop extending copyright. That way, more of the classical music of the early 20th century will get played in concert halls, and in turn, more people will end up hearing the work of new composers, and might even find they like it and want to pay them for some of their music.

MrWilson says:

I think another significant point Escalante has missed, aside from a general understanding of how the public domain works, is that commercial endeavors are not the only use of recordings.

How many low budget and independent artists/creators can benefit from not having to blow half their budget on licensing decent recordings of public domain works (or really just forgoing their use at all since they likely can’t afford the licenses to begin with)?

How many kids can benefit from using public domain music in the amateur videos they post to the web?

How many non-profits can benefit from using public domain music in their promotional material?

Unless Escalante wrote a brilliant symphony and then died over 70 years ago, he doesn’t have a dog in this fight anyway.

Karl (profile) says:

What an idiot

This guy really has no idea what he’s talking about.

So we should let people make films and sell them and keep all the money instead of giving some to the musicians and encouraging their pursuit of these arts?

You know those kids who learned the cello so they could “get paid for mastering their chosen instruments and making the sacrifices necessary to become a professional?” (And, apparently, for no other reason?)

If they’re members of a symphony orchestra, then they’re employed as “work for hire” musicians. They earn union scale, not royalties. Whether or not their performance is used in a film doesn’t matter, since they get paid the same either way.

And they only get paid when they record new material. If they’re recording new versions of classical pieces, it’s usually because the performance is the selling point, not the piece itself. Otherwise, whoever is hiring them would just license old recordings.

And the artists on those old recordings worked the same way, so they wouldn’t get royalties either.

So, the musicians themselves lose absolutely nothing in any case. They get paid exactly the same whether their performances are in the public domain or not.

Why not hire sound alikes to record all the works of the Buena Vista Social Club so we can get around paying those suckers.

Many, many, many people do this, all the time. How many times have you heard re-recorded pop songs in commercials, musak, or those old lounge records?

It’s perfectly legal, and widely accepted. The performers don’t get royalties in those cases, either – just the composers.

Which in this case would be members of the Buena Vista Social Club, so they would get paid.

He’s utterly wrong all around.

So wrong, in fact, that I also suspect it might be some sort of prank. I hope so.

Etch says:


“Now you can tell your kids not to waste time learning the cello, because there’s no way to earn anything from the sacrifice, so don’t go to orchestra practice. It’s a waste of time.”


When did anyone EVER play Cello for the money??

When did you ever hear anyone say the following: “I always wanted to be a doctor, but all the fame and fortune that comes from playing Cello at the subway was too appealing!”

Richard (profile) says:

Re: No Satire

It just demonstrates the nature of the copyright monopoly.

Officially it is just a monopoly on individual compositions or sound recordings – but the holders of most of these rights behave as a cartel. They trade the rights in large blocks so that ordinary people can never afford to purchase them. They distribute work under the strictest provisions that the law allows. They never compete with one another in the area of conditions of usage and copying etc.

The effect of this is to turn the monopoly on individual works into an effective monopoly on ALL works!

What this initiative does is to break the cartel by radically undercutting its standard terms and conditions. That is why these people hate it so much (much more than they hate piracy – because that appears to give them some “moral high ground”) – but they dare not be fully honest about why.

Rosedale (profile) says:

Public domain

His logic really falls flat if you apply it outside of the recording. His premise is that if you release recordings into the public domain no one will then pay for recordings and no one will record. But hey this guys is a musician right? What about the public domain compositions that these recordings are going to record? Is having those in the public domain for free for anyone’s use diminishing the output of composers? Did having that music for free in the public domain stop him and his band from composing and profiting off of their composing? Has it stopped people from making money off of their compositions? Absolutely not. So why would it be any different for recording?

The other thing that really bothers me is that he insists that musicians need to get paid. What he is completely overlooking is the fact that museopen is going to pay the damn musicians. I highly doubt that individual orchestra members profit directly from CD sales. Not just because the record label will take most of it, but because that isn’t how it works. Sure the orchestra might have more cash flowing allowing a possible higher salary or something, but most of that money comes from endowments and gifts not from the recordings. His whole article is total bunk when he waxes eloquent about how musicians won’t get paid when museopen is absolutely going to pay them.

A final note. I live in Boston. I really like the BSO and the BPO. If there is an option for a recording from them I tend to default to them because I know the quality is good. Of course I also know that New York Phil and Chicago Orchestra are pretty damn good as well. In the end I don’t mind having multiple recordings of the same piece by different orchestras. Not only do orchestras sound different, but they have different conductors. Maybe one does something extraordinary. The idea that I won’t buy a recording because these are free is absurd.

Anonymous Coward says:

Escalante isn’t arguing that the public domain is bad, just the company that says it’s hiring the orcastra to play songs isn’t in it for the right reasaons. what about that? Why is everyone trying to prove him wrong when he’s a fucking former entertainment industry LAWYER in the first place??? what the fuck do you people do??? You think he’s just going OH, this public domain is BAD. we have to stop now! You guys are fucking stupid. Just preaching over and over againg to yourselves how right you are.this is also a month late but still, there’s plenty of knee jerk reaction here to see, so you guys can suck a fat fucking public domain dick. it’s available free for all of you to enjoy

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