to a report that Facebook currently hosts 4% of every photograph ever taken in history. Whether that’s an accurate number or not, the social media giant does host a huge amount of photos on its servers. Masnick uses this story to question copyright:
What is the real purpose of copyright? Is it only to incentivize professional content creation, or to incentivize content creation overall? Given the stated purpose is to “promote the progress,” and to provide the public with more content, I would argue the goal is to promote more overall content, and it seems that technology is doing a much better job of that than copyright.
There’s a couple of points here I want to talk about later, but first is this undercurrent that runs through many criticisms of copyright — that of valuing amateur content over professional content.
Yes, copyright incentivizes professional content creation — it is an money in the production of creative output. There is a moral rights aspect to copyright — explicit in many civil law nations, implicit in many common law nations — but the incentive aspect of copyright is primarily economic.
Critics of copyright law occassionally advance arguments attacking the incentive given by copyright as unnecessary or outdated. This one in particular goes something like this: we have no need for copyright anymore because amateur creators don’t need copyright’s incentive to create and amateur creativity is better than professional creativity.
This notion isn’t unique to Masnick. Sci-fi writer Cory Doctorow shares this view. In the Guardian last November, , “I mean, I love sitting in an air-conditioned cave watching Bruce Willis beat up a fighter jet with his bare hands as much as the next guy, but if I have to choose between that and all of YouTube, well, sorry Bruce.”
Swedish politician , who, though he doesn’t get around to defining what he means by “new” types of culture, can’t wait for “old” types of culture to die out:
I’m going go out on a limb here and say, that even if it is true that movies can’t be made the same way with the Internet and our civil liberties both in existence, then maybe it’s just the natural progression of culture.
[…] After all, we have previously had operettes, ballets, and concerts as the high points of culture in the past. Even radio theaters (and famous ones). Nobody is particularly concerned that those expressions have had their peak and that society has moved on to new expressions of culture. There is no inherent value in writing today’s forms of culture into law and preventing the changes we’ve always had.
You’ll even find such ideas coming from more scholarly sources. The Social Science Research Council’s report adopts this idea and wraps it up in more academic language:
[W]e take seriously the possibility that the consumer surplus from piracy might be more productive, socially valuable, and/or job creating than additional investment in the software and media sectors. We think this likelihood increases in markets for entertainment goods, which contribute to growth but add little to productivity.
Promoting the Progress
“To promote the progress of useful arts, is the interest and policy of every enlightened government.”
In the US, the end goal of copyright law is promoting the progress of the useful arts and sciences. A private right is secured as an incentive for creating and disseminating works for the public benefit.
Usually when we talk about “” and copyright, we’re talking about cultural works that are made for many of the same reasons as professional works but without the commercial aspect — videos, music, and writing created by hobbyists or striving professionals. But some of those making the argument that amateur creativity makes copyright obsolete sweep in not only this type of creativity but all noncommercial creative acts.
Snapshots, home videos, and status updates are great ways to communicate and express ourselves, but these can hardly be considered contributing to the promotion of the progress of the useful arts and sciences. Where is the public benefit in a stranger’s vacation pics? (Never mind that, unless you’re friends with all these people, you likely can’t see most of them.)
I wonder sometimes about those who don’t see the value of art and entertainment made by someone who got paid for it. It’s stunning that they can’t see the value of , or , or , or . To dismiss these works and countless others like them as mere “entertainment” that is “unproductive” is an incredibly narrow viewpoint.
What’s equally stunning is the view that the measure of progress when it comes to copyright law should be based solely on numbers — quantity over quality. Ten photos are better than one, no matter what.
Faza, at the Cynical Musician, addressed this topic last year in a post on . And the late :
I agree that the copyright law should encourage widespread dissemination of works of the mind. But it seems to me that, in the long pull, it is more important for a particular generation to produce a handful of great creative works than to shower its schoolchildren with unauthorized photocopies or to hold the cost of a jukebox play down to a dime, if that is what it is these days.
But suppose we ignore all this and decide to weaken copyright protection since the incentive is not needed anymore — problems would still remain. While the type of amateur creativity discussed above doesn’t rely on copyright’s incentive, it still benefits from the protection copyright law affords. A lot of attention is focused on end-user piracy of works from larger entities, but larger entities can infringe on individuals’ works.
Certainly, this type of infringement happens now. Look at the flurry of controversy that stemmed from news that photo service allowing it to distribute those images to its company partners. This is far from an isolated incident — in 2007, the for using a photo of her, uploaded to Flickr under a Creative Commons license, in an ad campaign (the case was ). And even the aforementioned against the unauthorized use of one of his wife’s photos by a newspaper.
Without copyright protection, companies would have free rein to behave like this. There’s nothing magical about copyright protection that makes it only limit the ability of consumers getting free movies.
Development of creative tools
Technology is suggested by Masnick as a better mechanism for promoting creativity than copyright protection. It’s true that people today have access to a vast array of cheap and portable tools to record and produce high quality audio and visual content (though no technology has yet made it easier to learn how to tell a story or convey an emotion). But this idea that technology has rendered copyright obsolete begs the question that a functioning market for professional content had nothing to do with the development of that technology.
Would there be technological tools that help amateurs create — especially free or cheap tools like GIMP, Blender, and Reaper — without their commercial precursors? These tools required investment and development, and that came largely from their use in professional contexts — decades of improvement fueled by a need for this technology and enabled by the money to meet that need. Invention, after all, doesn’t occur in a vaccuum.
No doubt this technology would have developed without copyright and a market for professionally produced content. But it certainly wouldn’t have developed at the rate it had — the tools that are available today would likely be decades away in such a world.
This ties into the benefit of copyright protection and its economic rationale. I think even copyright’s critics would agree that the ability to create movies and music from a home computer is a good thing. And, while I’m unaware of any research quantifying the effect of a market for professional content on the development of the technology used to create that content, I think it’s safe to say that it does have an effect, and probably not an insignificant one. We, as a society, generally want to encourage those things that bring about good results. Viewed this way, copyright makes sense from a public interest and economic perspective.
The “progress” of destroying markets
The biggest problem with attacking copyright by placing amateur content on a higher pedestal than professional content is that it sets up a false dichotomy. When did this become an either/or choice?
Amateur creativity thrives regardless of the copyright incentive. In fact, it’s an essential part of any culture with professional creators: almost without exception, every one of those professional creators has started out as an amateur. What Masnick, Doctorow, Falkvinge, and others are saying is that society would be better off with only amateur content rather than the combination of amateur and professional content.
That doesn’t sound like progress to me.
Whether your song is clicking in Caracas or soaring in Singapore, you’ll want to make sure someone is collecting your share for you in the international marketplace.
In addition to the secondary income streams from sales of sheet music and synchronization explained elsewhere, there are also monies to be earned internationally, should your song cross over beyond U.S. borders.
While the major multi-national publishers (EMI, Warner-Chappell, Universal, BMG, etc.) maintain offices in most of the leading territories, most independent publishers do not. As a result, these publishers sign agreements with local publishers in each territory to collect on their behalf. In these cases, the local publisher becomes known as a sub-publisher.
Regardless of what kind of publishing company is representing you, you should keep in mind that most countries have a mechanical rights collection society that licenses all musical compositions used by all record companies in that country. These mechanical societies are oftentimes government-owned and operated. Each local publisher files a claim with the mechanicals society explaining what percentage of a particular song it represents, and the collected monies are allocated accordingly.
In addition, sub-publishers collect the publisher’s share of performance monies from the country’s performing rights society, while the performing rights society pays the writer’s share to the U.S. performing rights society that you have affiliated with as a songwriter.
A sub-publisher can charge between 10% and 50% of the monies earned for its services, though typically the amount runs in the 15% to 25% range. The sub-publisher usually gets an increased percentage for covers of your song (a recording by a local artist in that territory of your song). This increased percentage usually tops out at 50 percent.
In regards to printed music, if the sub-publisher is responsible for manufacturing and selling the sheet music, it usually pays the U.S. publisher about 15% of the retail selling-price. If the sub-publisher has licensed the print music, it typically retains between 15% and 25% of the licensing income.
As is the case with your U.S. publishing agreement, an advance from the sub-publisher may be involved. For new songwriters with no proven track record, there may be no advance, with the sub-publisher content to merely collect on behalf of the U.S. publisher (this arrangement is usually referred to as a “collection deal”). In the absence of an advance, the sub-publisher will usually keep a lower percentage. Sizes of the local market and of the catalog also affect the advance amount. Advances can also be greatly affected by the currency exchange rates: if the U.S. dollar is strong, lower U.S. dollar advances are the norm.
In addition, sometimes when an American song becomes an international hit, various territories will seek the release of a version with lyrics in the language of their country. The local lyricist (or translator) will then receive a share of the royalties on that version, paid by the local societies. Sometimes the American songwriter and publisher are responsible for this percentage, while other times the sub-publisher pays for it.
At any rate, the translated version should be registered separately with the society, which usually ensures that the translator does not get paid on the English language version.
Be sure to receive a copy of the new lyrics translated into English by a reliable third-party source for your approval. This will prevent a new version of your song going out with lyrics that you – or someone else – may otherwise find confusing or even offensive.
Sub-publishing deals are established to run for a specific duration (usually at least three years).
Many demos from aspiring musicians are sent daily to major record labels. Know how to increase the chances of your demo getting noticed.
Industry Tips & Advice: Music Law – What are Common Types of Music Publishing Contracts? by Ruben Salazar, Esq
The seven (7) basic music publishing contracts are:
(1) Single Song Agreement: This type of music publishing contract is an agreement between the writer and the music publisher in which the writer grants certain rights to a publisher for one or more songs. In single song publishing contracts, the writer is paid a one-time recoupable advance.
(2) Exclusive Songwriter Agreement (“ESWA”): Under the ESWA or “staff writer” contract, the song writer generally grants all of the publisher’s share of the income to the music publisher. The writer’s services are exclusive to the music publishers for a specified period of time. Thus, any compositions written within that period belong to the music publisher. These publishing contracts are usually offered to writers with some degree of success.
With this type of music publishing contract, because writer has a track record of writing hits, the publisher feels confident that it will recoup its investment. In return for signing away exclusive rights to some or all the writer’s songs, the writer gets paid by the publisher a negotiated advance against future royalties. The advance amount naturally depends on the writer’s bargaining power and on the competition in marketplace, if any. Under a staff writer deal, the writer is paid on a weekly or quarterly basis. An ESWA can be either tied to a record contract or independent of a record contract.
(3) Co-publishing Agreement (“Co-pub”): The co-publishing (“co-pub”) deal is perhaps the most common publishing contract. Under this deal, the songwriter and the music publisher are “co-owners” of the copyrights in the musical compositions. The writer becomes the “co-publisher” (i.e. co-owner) with the music publisher based on an agreed split of the royalties.
The songwriter assigns an agreed percentage to the publisher, usually (but not always), a 50/50 split. Thus, the writer conveys ½ of the publisher’s share to the publisher, but retains all of writer’s share. In a typical “75/25 co-pub deal,” the writer gets 100% of the song writer’s share, and 50% of the publisher’s share, or 75% of the entire copyrights, with the remaining 25% going to the publisher. Thus, when royalties are due and payable, the writer/co-publisher will receive 75% of the income, while the publisher will retain 25%.
(4) Administration Agreement (“Admin”): An administrative agreement takes place between a songwriter/publisher and an independent administrator, or between a writer/publisher and another music publisher. In an “admin deal,” the songwriter self-publishes and merely licenses songs to the music publisher for a term of years and for an agreed royalty split.
Under this music publishing contract, the music publisher simply administers and exploits the copyrights for another publisher/copyright owner. Only the most popular song writers can even consider asking for an admin deal. Under this coveted arrangement, ownership of the copyright is usually not transferred to the administrator. Instead, the music publisher gets 10-20% of the gross royalties received from administering and exploiting the songs for a certain period of time and for a certain territory.
(5) Collection Agreement: A collection publishing agreement is like an administrative publishing contract where the writer retains the copyrights, except that the publisher does not perform exploitation functions; like an accountant or business manager, it merely collects and disburses available royalty income.
(6) Sub-publishing Agreement: These are basically music publishing contracts in foreign territories between a U.S. publisher and a publisher in a foreign territory. They are like admin or collection deals (with no ownership of the copyrights being transferred to the sub-publisher), but limited to one or more countries outside the U.S.
Under this music publishing contract, the publisher allows the sub-publisher to act on its behalf in certain foreign territories. Often, they are limited to a group of countries, such as European Union (EU), GAS (Germany, Austria, Switzerland), Latin America, etc.
(7) Purchase Agreement: Under this publishing contract one music publisher acquires in whole or in part the catalogue of another music publisher, sort of like a merger of companies. With this type of music publishing contract, a “due diligence” investigation is done to determine the value of the catalogue.
The gangsta rap veteran reflects on the state of today’s hip-hop scene.
Ice-T has made his views on today’s popular music known, most recently blasting Soulja Boy for “single handedly killing hip-hop.” Now, he’s taking a less dynamic approach, explaining that contemporary rap doesn’t accurately reflect the state of the world.
The rapper-turned-actor explained that it’s an evenhanded exchange between fans and artists. “I just think that right now, you have so many blogs, you have so much news… There’s so much news that’s being pumped at you through the internet and stuff. People just want to hear music that doesn’t have anything to do with reality,” he told CNN. “They’d rather just listen to music about ‘party, party, party.’ We don’t want to deal with the issues because they’re dealing with the issues daily, all day.”
He continued by stating that the music suffers because of this oversaturation of news. “The music doesn’t reflect it. We’re in a war, got a black president, we got lots of things going on. We got economic problems, you got the Wall Street situation,” he said. “You’re not going to find any of those in any of the music. It’s not being reflected. People are trying to run from the truth because music is very delusional.”
Ice-T most recently released his autobiography Ice: A Memoir of Gangster Life and Redemption—From South Central to Hollywood, addressing reviews that it’s an “easy read.” “It’s exactly meant to feel like that. It’s meant to feel like you’re dealing in a conversation with me,” he said. “You get the full vibe of me, I wasn’t pulling any punches. When people say it’s a fast read, I say is that a good thing? But I’m doing a lot of press and they’re like, that’s a great thing. You want to keep the pages turning.”
Outkast rapper Big Boi tells Billboard.com that he and his 16-year-old daughter, Jordan, have formed Purple Kids, a new record label that will launch in the coming weeks. The imprint will feature a roster of younger artists but will target fans of all ages.
“My daughter just turned 16 years old, and you can see it on MTV’s ['My Super Sweet Sixteen'], where they get cars, and things that depreciate and just don’t mean nothing,” says the 36-year-old rapper (real name: Antwan Patton). “I wanted to give my child something that she can grow and build and nurture. So I gave her her own label.”
Big Boi says that Purple Kids’ first signee is Gabbie Rae, a 12-year-old singing prodigy who has appeared on “The Tyra Banks Show.” The rapper, who already heads the Purple Ribbon All-Stars hip-hop label, says that he and Jordan are the sole partners on the new imprint.
As for Big Boi’s solo career, the Outkast member’s label situation slightly shifted when Barry Weiss took over for Antonio “L.A.” Reid as Island Def Jam’s chairman/CEO last March, but Big Boi says that all is running smoothly as he continues working on the follow-up to last year’s “Sir Lucius Left Foot: The Son of Chico Dusty.”
“I had a conversation with Barry Weiss, and he was like, ‘Hey Big, great album,’ and he’s ready for the next album,” says Big Boi. “And he wants it ASAP. So, you know, everything’s good.”
Total U.S. music sales slipped just 1.3% in the first quarter from the same period a year earlier, thanks to a surge in sales during six of the last seven weeks of the quarter.
The relatively modest decline marked a sharp improvement from a 6.1% year-on-year sales decline in the first quarter of 2010.
Album sales for the quarter ending on April 3, including track-equivalent albums (whereby 10 digital tracks equals one album), are down to 111.8 million units from 113.2 million in the corresponding period last year, according to Nielsen SoundScan. In contrast, last year at this time, albums and track equivalents were down 6.1% from 120.6 million units at the end of the first quarter in 2009.
The slowing decline is due to a surge in digital sales, with tracks showing an 8.6% gain in the first quarter to 339.1 million units from 312.4 million units in the first quarter of last year. That gain is contrasted by the 1.1% gain that the configuration posted for all of last year, and is even more dramatic when compared with how tracks performed in the first quarter of 2010 versus 2009, when the configuration was down 0.9%, or nearly 1%, from the latter year’s first-quarter total of 315 million track scans.
Moreover, digital album sales were up 14.9% to 25.1 million units, from the 21.8 million units posted in the first quarter of 2010. While that’s less than the 16% increase posted for the first quarter of 2010 — from the 18.8 million units scanned in the corresponding period in 2009 — weekly digital album sales have already passed the 2 million unit mark five times this year, as compared to three weeks for all last year.
The surge in digital album scans has slowed the decline for the overall album configuration, with U.S. sales at 77.8 million units, down 5% from the nearly 82 million units in the first quarter of 2010. As part of that, the CD album, which has been declining at an 18%-20% clip over the last few years, also slowed to a 12.8% decline in the first quarter. Again, that was due to a 4.8% decline in CD sales the last seven weeks of this year’s first quarter, versus a 22.1% decline in the first six weeks.
The top selling digital album so far this year is Adele’s “21,” with scans of 456,000 units, which is almost half the 942,000 total units the album has racked up as the best-selling album this year so far.
The best-selling digital song for the quarter, Cee-Lo’s “F— You (Forget You),” scanned 2.15 million units, beating out Lady Gaga’s “Born This Way,” which scanned 2.11 million units.
In album market share (including TEA), Universal Music Group’s 29.3% barely held off a surging Sony Music Entertainment’s 29.15%.
Look for further analysis of the first-quarter figures in this week’s Billboard magazine, available Friday.
The use of music in film, TV, video and webcast production involves two aspects of copyright law: synchronization rights and performance rights. Performance rights come into play when a production is shown to the public — typically via broadcast or cablecast. Performance rights are primarily of concern to film distributors and TV and cable stations.
Synchronization or “sync” rights, on the other hand, are involved whenever recorded music is used in combination with visual images in a production. It is important for producers to understand what is involved in obtaining sync rights.
Some producers incorporate music in their productions without permission, particularly for programming produced for private use (in in-company training videos, for example) or for distribution in the smallest markets where the likelihood of detection is low. Not only does this practice violate the copyright law (for which the consequences can be severe) but it can also unnecessarily limit opportunities to exploit the production. Other producers treat music rights clearance as an afterthought, only to discover that obtaining sync rights can be complicated, time-consuming, expensive and not
guaranteed. Experienced producers budget for, and negotiate the terms of, sync licenses before including music in a production. If the rights are too costly or are not available, the producer is able to look for alternatives.
In many cases, a producer commissions original music for a production. When a musician is hired to compose original music, the producer may own the work outright under a “work-made-for-hire” agreement and does not need to license the sync rights separately. In such an agreement, the producer may agree to pay the musician or music publisher a flat fee and/or grant a royalty interest in the production. Work-for-hire agreements must be in writing and contain specific language to be enforceable.
More typically, the musician or music publisher insists on retaining all or part ownership of the work and agrees only to license the sync rights to the producer for a set fee, a royalty interest, or based on some other formula. Under this approach, the producer can usually keep the cost of the sync license low (perhaps only compensating the musician for actual costs), because the performance license fees for a commissioned work — which the producer does not pay — can
be very lucrative for the musician and/or music publisher.
In a typical flat fee arrangement, the musician is paid fifty percent of the total compensation to start work. Music is composed and presented to the producer who offers comments and criticism. After revisions are made, players are hired and the music is recorded. An additional twenty-five percent is usually paid on the first day of recording. The music is then mixed and edited and the final twenty-five percent is paid on delivery.
If the music was previously recorded and published, the producer will have to obtain a sync license from the copyright owner (usually the music publisher, or the musician in the case of self-published work). The use of music in film, TV, video and webcast is not covered by the compulsory license provisions of the Copyright Act. As a result, sync licenses for these uses must be negotiated on an individual basis between the copyright owner and the producer.
The heart of the sync license describes the rights which are being licensed. This normally will be a non-exclusive right to record and edit the music in sync with the production, to make copies of the recording in sync with the production, to perform the music in sync with the production in theaters, through broadcast and cablecast, and to reproduce and sell home videos containing the music in sync. Usually the sync right is structured so that all other rights other than the sync right may continue to be licensed or otherwise exploited by the musician. The sync license is also normally limited to a specific period of time, after which the sync rights themselves can also be licensed to other productions.
The sync license may also provide for use of the music for promotional purposes such as advertising the production, and for other ancillary uses. Musicians with particularly strong bargaining power may insist on additional compensation for such ancillary uses. For relatively unknown musicians, however, the additional exposure gained from such uses can be invaluable. In a similar vein, the sync license typically requires the producer to credit the musician not only
in the production, but also in connection with advertising and promotional activities, and on home videos. Due to the current lucrative market for soundtrack albums, it is becoming increasingly common in film and TV sync licenses to also negotiate for the right to produce a soundtrack album containing the music featured in the production.