I’m spending the next couple of days back in Boston at the Rethink Music conference, with a humbling collection of music industry minds. I wanted to mark the occasion by bringing back a thesis about which I wrote extensively last year, following several discussions at the Future of Music Coalition Policy Summit in October 2009. In response to perceived market failures in the licensing market for sampling music, I proposed that Congress should develop a statutory license for sampling. The details of this proposal are below. The paper I drafted received a warm response from my peers (thank you), but needs substantial revision in light of Peter DiCola and Kembrew McLeod’s excellent new book, and my own Sisyphean push for excellence. I wanted to share my thoughts here and take this time to solicit some feedback. So here they are. Conference attendees, non-conference attendees, friends, strangers: rip this apart.
26 April 2011
15 November 2010
Girl Talk has a new album out today that you can download for free here. Copyright nerds like me will note that Gillis has licensed this one under a Creative Commons license, with the attribution and noncommercial restrictions.
I’m still confirming this, but I believe this is the first CC-licensed Girl Talk album. Unstoppable, Secret Diary, Night Ripper, and Feed the Animals all are released under Radiohead-style pay-what-you-want schemes, but not under any more liberal a copyright license. The difference is subtle, but important: you may be able to obtain a copy of Night Ripper for free, but to get it for free doesn’t mean that you get to copy your copy and send that to your friends, or make a music video with the tracks, or perform these songs publicly. Your rights over the copy only go as far as your right to use it, and then (if you decide to) dispose of it. The Creative Commons license used in All Day gives you some new rights that you don’t have over Girl Talk’s earlier works: the right to copy, distribute, transmit, and remix. You can do this as long as you provide attribution to Girl Talk and you do not do this in a way that is primarily directed toward commercial advantage. To the consumer it makes little difference, but to the remixer the difference is stark.
So, everyone go remix the Girl Talk album and post it on YouTube? Well, not so fast. All Day isn’t a lone, romantic album. Inside of All Day are samples from Jay-Z, The Ramones, The Doors, Missy Elliot, Beck, Fugazi, Radiohead, DMX, Lady Gaga, Daft Punk, MGMT, 2 Live Crew, Arcade Fire, Fine Young Cannibals, John Lennon… the list goes on. If Girl Talk is doing as he has done in the past, he didn’t get permission to use these sound recordings. He releases his albums at his own legal peril; Girl Talk could easily be sued for appropriation of those songs. (He hasn’t yet, probably because of the flood of copyright lawyers that would come out and make the case that what Girl Talk is doing is fair use, giving the music industry some very bad case law to fight off the next time a sample is before a court.)
The problem with using a Creative Commons license here is one of arithmetic. Girl Talk can only license that which he has authority to license, and he doesn’t have authority to license all of the underlying sampled works. The sampled recordings aren’t under the Creative Commons license. To put this in practical terms, your YouTube music video for a song on All Day may not get you in trouble with Girl Talk, but DMX could come after you for sampling “Party Up” in your video, by and through Girl Talk’s sample of the song. Your defense is about as strong as Girl Talk’s defense. You’ve got a fairly strong argument for fair use, but it’s a largely untested argument, and you’d be the one paying for the litigation to make that argument. (There’s no indemnity clause or warranty of title in Creative Commons licenses.)
Gillis going Creative Commons is a strong gesture towards those of us who advocate free culture. But as a legal matter it’s little more than a gesture. Perhaps his will encourage broader dissemination of the album, but it does not clear the muddied waters around the album’s legality.
Now, will record companies sue you for remixing All Day? Probably not, only because it’s such a complicated case to make with little economic return. But will they send a DMCA takedown notice to YouTube over your remix? Quite possibly, and the Creative Commons license doesn’t make your counterclaim any easier.
14 July 2010
(an early version of aural drugs)
This has been quite a week for us law nerds, especially those of us that like to talk copyright or the First Amendment. I mean, there’s substantive due process challenges to obscenity doctrine, the Second Circuit striking down FCC regulations on expletives, porn producers arguing fair use against record industry copyright claims (and Warner seemingly confessing to group boycott in the same case), challenges to a a Massachusetts law attempting to regulate online speech targeted to minors, the Tenenbaum opinion on constitutionality of copyright damages — and what, of all these things, gets me worked up enough to post something?
26 June 2010
Teddy & the Pandas – Basic Magnetism
One thing I’ve learned about the Boston rock scene is that bands from here are often as locally-conscious as their New York counterparts, constantly name-checking local streets, hangouts, and bands. The Real Kids are a stellar example (frontman John Felice probably learned it from the master of name-checking himself, Jonathan Richman, when Felice was in an early lineup of the Modern Lovers). Here’s a stanza from their “Better Be Good:”
Everywhere I go I hear kids talking,
“There’s nothing going on. The town ain’t rockin’ Like it did before
Way back in ’64”
When we were rocking with The Ramrods
When we were shaking with The Pandas
You know it don’t seem the same
Without The Remains.
The lyrics stand as a Rosetta Stone, highlighting some of the best of the mid-60s Boston scene. The Remains are probably our most famous mid-60s export, going down in history as an opening act for the Beatles, a featured part of the Nuggets box set, and even briefly highlighted in the movie Superbad. “The Ramrods” is probably a reference to the Rockin’ Ramrods, a group which came shortly after the Remains, was featured on a volume of Pebbles and still seem to be somewhat active today. For a good while, though, I couldn’t figure out who “The Pandas” were. It wasn’t until after some sophisticated Google searching that I figured Felice is probably referencing Teddy and the Pandas, an all-but forgotten 60s pop band from Beverly, Mass. With a little more searching I managed to turn up their only album, a 1968 lost gem called Basic Magnetism.
The album is a beautiful artifact of the Sundazed-psych era, with baroque-like numbers including “Shine A Little Light,” “Childhood Friends,” the goofy “At The Debutanes’ Ball,” and the deliciously fuzzy title track. “Kona, Idaho” is a surprisingly complicated song, hopping from meter to meter like a peculiar bridge from late-period Beatles and the prog-rock songs to come in the 1970s. (Speaking of late-period Beatles, “Raspberry Salesman” quite plainly evokes a certain psych-laden song about fields of small red fruit, released around the same time.) Amidst all of this steady 60s rock gets its due with “Running from Love” and “Crossing Man.” Clearly drawing more from the Remains than the hard-edged rockers which dominated garage rock going forward (like the Real Kids, for that matter), the Pandas stand like the last of the innocent 60s: not angry, but not bubblegum either, and a wonderful accompaniment to a hot summer day.
Teddy & The Pandas – 68 Days ‘Til September
6 April 2010
My good friend and bandmate Oscar works at Planet Records in Harvard Square. Like many of its record-store contemporaries, Planet does not put out CDs and jewel cases in its shelves. Instead, it keeps the CDs behind the counter and puts out either the liner notes or a placeholder card in their place. Oscar, as part of his job, gets to design the placeholders. And he makes it an art form:
Check out the entire photoset here.
You know, Record Store Day is right around the corner. Why not go out to Planet today and celebrate a little early? You can see all these beautiful cards in person, and if you buy the CD you can probably ask Oscar to keep the card.
17 March 2010
8 March 2010
(from Flickr user samsaundersleeds)
We’re seeing far too many tragic music deaths this year.
Yesterday, Sparklehorse frontman Mark Linkous was found dead from a self-inflicted gunshot wound. Only two days earlier we found out that the band’s latest work, a collaboration with Danger Mouse and David Lynch called Dark Night of the Soul, finally cleared some legal hurdles that have kept the album out of fan hands for nearly a year. (I wrote about those legal hurdles back in May 2009.) According to a statement copied at Brooklyn Vegan, there’s a nearly-finished album for Anti- Records in the pipeline, so this might not be the last we see of this excellent, excellent band. I’ve considered Good Morning Spider a desert-island record for years now, and am quite sad to hear of Linkous’ passing.
Rest in peace.
1 March 2010
Berklee College of Music runs a music business journal which addresses the problems of our beloved industry with a little more academic vigor than most other outlets. Usually, I rely on them for some valued in-depth perspective on a lot of issues. But their coverage of the Live Nation / Ticketmaster merger is simply miserable.
The journal published two articles on the subject for their most recent issue. The first is a fairly straightforward pros-and-cons piece which, aside from only getting one opinion on either side, serves as a sufficient history piece. The second is a pro-merger take by someone who I can only assume is a student at Berklee, highlighting the purported efficiencies of the transaction.
The (entirely citation-free) piece offers only conclusory statements about the “efficiency” of a merger, and seems to be confusing a lot of the details of both the settlement and the industry. The author seems confused, for example, that no mention was made in the DoJ settlement of major record companies, as if the record industry’s role would have any bearing on a live-music merger. He predicts the end of service charges on tickets, with no evidence to support it. He suggests TicketsNow (a Ticketmaster affiliate) avoided antitrust investigation for their unsavory ticket resale practices, which is totally wrong. He says TM/LN will now finally have the market power to engage in pure price discrimination, but does not even mention how that might fall under the criminal liability of the Robinson-Patman Act. The author seems to also fundamentally misunderstand the nature of Live Nation, talent agencies, and a lot of the structure of the business, and adds this structurally imbalanced suggestion as to the impact on independent actors in the music industry:
But this is not the death of all things independent. To the contrary, independent segments of the industry will survive through strategic partnerships and consolidation.
So the solution for independent businesses is to consolidate, and thus no longer be independent?
There’s substantive issues to address here, but the article takes so many sharp turns I can’t do the merits any justice. (Paradoxically at the end the author supposes that “Live Nation Entertainment will suffer eventual divestiture at the hands of a Republican administration.” Don’t look for any reasoning to back up the assertion that Republicans, historically softer on antitrust, will feel compelled to split up Live Nation once they take power.) This was a tremendously disappointing read. As one of the only academic music business journals out there, I expected a hell of a lot more from Berklee.
25 January 2010
Wired has the scoop. While this is not dispositive should someone eventually sue under a civil antitrust theory, it means the government won’t block the action directly.
The modified agreement – requiring the licensing of Ticketmaster’s software to AEG and some other “suitable company” for five years – rings a little hollow to me. Reservations aside, I do hold out hope for the clause strictly prohibiting the retaliation against venues choosing to use another ticketing service or promoter when booking a Live Nation artist.
But there’s an underlying vertical integration concern that seems unanswered by Wired’s piece. After all, Live Nation presently owns about a hundred venues throughout the United States, and holds management arrangements with dozens more. If the settlement is structured so that venues are left with the choices as the “consumer” in this market, and LN/TM owns the venue, can we really expect the venue to not use their own ticketing agents and concert promoters? How are promoters expected to compete for venue business with other promoters when the other promoters own the actual venues?
The FTC and DoJ will have to watch this settlement like two hawks to keep the collusion practices out of the business. I’ll be sure to post a link should I uncover it in my research. I believe it will be published for an open comment period in the Federal Register.
Update: After reading the DoJ press release I was pleased to find the following information:
The settlement also sets up firewalls that protect confidential and valuable competitor data by preventing the merged firm from using information gleaned from its ticketing business in its day-to-day operations of its promotions or artist management business.
That is the principal concern I had with the settlement, as I expressed here. I know we do this in other industries, but I’m still wary of a practice that allows a conglomerate to conduct both sides of an exchange and rely on ethics and a settlement alone to keep them from using their combined information to an unfair advantage.
Update 2 (1/26): The Future of Music Coalition points to an excellent opinion in the LA Times from yesterday, which adds this about the provisions guarding competitor promoters and ticketing companies:
Those provisions will only be effective, however, if they’re well enforced. There’s no structural protection. Consequently, the reaction to the deal from opponents of the deal was muted praise. John D. Breyault of the National Consumers League, part of the TicketDisaster.org coalition that opposed the merger, said his group would have been happier had the Justice Department sought to block the deal. “The conditions that they have imposed on this merger are not insignificant,” he added, “if DOJ is committed to strong and enduring enforcement of the consent decree.”
The piece also adds a quote from Seth Hurwitz, owner of DC’s beloved 9:30 Club, which is worth posting here:
It seems the DOJ has created a healthier atmosphere for venues to explore other ticketing providers. However, unless any promoter is free to use any ticketing company they wish, at any venue, at any time, then nothing has been solved. In America, no one should be forced to do business with a company. If one ticketing company has a lock on an arena for instance, I could still be forced to have my competitor sell my tickets, which is an issue for a host of reasons including they can gather all my financial information and my customers’ information. We’re waiting to see how the DOJ will address this. The DOJ’s intent to spur competition is there, but it must be backed up with genuine mechanics to ensure independent promoters can try to compete on a level playing field.
18 January 2010
While my friends in MA may have other coverage to keep them glued to the screen, if you find yourself with some free time tomorrow night you should definitely catch Copyright Criminals, a documentary by Kembrew McLeod and Benjamin Franzen. I got a chance to see this as part of the Future of Music Coalition Policy Summit back in October and found it inspiring, entertaining, and thought provoking. (So thought provoking, in fact, that an entire conference panel was dedicated to discussing it the next day, and it lead me to draft a law journal article on this topic.)
From the movie’s website comes this description:
This documentary traces the rise of hip-hop from the urban streets of New York to its current status as a multibillion-dollar industry. For more than thirty years, innovative hip-hop performers and producers have been re-using portions of previously recorded music in new, otherwise original compositions. When lawyers and record companies got involved, what was once referred to as a “borrowed melody” became a “copyright infringement.”The film showcases many of hip-hop music’s founding figures like Public Enemy, De La Soul, and Digital Underground—while also featuring emerging hip-hop artists from record labels Definitive Jux, Rhymesayers, Ninja Tune, and more.
It also provides an in-depth look at artists who have been sampled, such as Clyde Stubblefield (James Brown’s drummer and the world’s most sampled musician), as well as commentary by another highly sampled musician, funk legend George Clinton.As artists find ever more inventive ways to insert old influences into new material, this documentary asks a critical question, on behalf of an entire creative community: Can you own a sound?
As I argue in my note (as much of which I will post as I can in the spring), sampling has become an integral part of our musical identity, and extends naturally from earlier traditions of borrowing which go as far back as music itself. The sampling clearance process as a business is plagued with problems which stile creativity. But this is a complicated business with many, many players, and each wants both a say and a cut of the profits. Copyright Criminals does a great job highlighting many of the key players here: the samplers, the sampled, and the various agents and managers involved in the sampling process.
The documentary also has a DVD release slated for 26 Jan, and as Creative Commons points out there will be a release party tomorrow night in Brooklyn (at the Brooklyn Bowl) with the likes of EL-P, Eclectic Method, and DJ Spooky.
Check your local listings for showtimes. (In DC: WVPT and WCVE-TV air at 10PM tomorrow, WETA airs next Sunday a midnight; in MA: MPBN, CPTV at 10PM tomorrow, WGBX World (‘GBH 44.2) on Wednesday at 9AM, 3PM, and 8PM, NHPTV Saturday at midnight, Sunday at 11PM).