[ EEPI-Discuss ] Re: Mr. Krimm's bifurcation into T-shirts and Muse-ical noise

[Dan Krimm <djkrimbo@earthlink.net>]

>Date: Fri, 27 May 2005 11:56:47 -0600
>From: David Wade <djw@marystruck.com>
>Subject: [ EEPI-Discuss ] Mr. Krimm's bifurcation into T-shirts and
>	Muse-ical	noise
>To: eepi-discuss@eepi.org

...

>At 07:25 PM 5/26/2005 -0700, you wrote:
>
>>Perhaps you'd like to see all non-star musicians get into the T-shirt
>>business.  But then they are in the T-shirt business and not the music
>>business.  That's the celebrity model right there: tangential value, not
>>direct value.  It skews the market incentives very badly.  An artist with a
>>great T-shirt and lousy music will sell more T-shirts than an artist with
>>great music and a lousy T-shirt.
>>
>>As a musician, I want to get value because of the great music I make, and
>>not have to depend on getting into a completely different business selling
>>T-shirts (or whatever other tangential value you propose).
>>
>>Without some sort of direct compensation for the *recorded* music, I'm
>>screwed, plain and simple.  Getting a fair return for recorded music is my
>>only hope for self-sufficiency as an independent musical artist making
>>high-quality music that appeals to a moderately sized audience.
>
>It is so interesting that the image that jumps out at me is that you could
>substitute "vinyl records, or even CDs" for T-shirt in the above argument
>and the entire statement would mean exactly the opposite of what it means
>aqui.

But that substitution is not inconsequential, because the objects you refer
to have music on them and T-shirts don't.

I'll agree that the format of controlling physical objects that package
music is a contingent aspect of the market (and so are the rights designed
to create that market) -- the control over rights for duplicating and
distributing copies of the content is still designed to create a market for
the music (recording), and not for the object per se.

The object is a packaging device/paradigm.  The T-shirt is something
entirely unconnected to a specific recording or any collection of
recordings.  The T-shirt cannot be played back to recreate the musical
experience, and even if it could it would not be an effective packaging
device for that music as an exclusive delivery mechanism.  That is, once
CDs become unenforceable as to content control, any T-shirt-dependent
mechanism that might embed a little chip or something becomes equally
unenforceable as a content control mechanism.



>So what is the truth here.  Musicians make music.  When I hear "Hey, Jude",
>it will always be The Beatles singing, but when I hear Beethoven's Ninth
>Symphony it will always be the nameless players of the band on the Mall in
>front of the Capitol on each 4th of July...  So, what we have is that there
>is such a thing as an Intellectual Property Right, (The Beatles) but it
>eventually expires... (Beethoven)  So what we need to decide is, Who owns
>Beethoven's Ninth Symphony.  Clearly we know who owns "Hey, Jude", and they
>sold it to someone who will collect the royalties as long as he
>can...  But, Beethoven's Ninth?  Is there an Intellectual Property Right
>associated with the individual performance?  Or is it with the person who
>chooses the particular musicians and pays for the performance?  Be careful
>here...  You could easily end up with Bill Graham owning all the Grateful
>Dead and Jefferson Airplane performances.

When rights expire, the public (domain) owns the music.  Of course there
are two distinct rights here, one for the composition ("circle-C") and the
other for the performance/recording ("circle-P"), and they'll likely expire
at different times.  When the composition rights expire, then anyone can
legally record or perform a new version without paying anyone or getting
permission.  When the recording rights expire, then anyone can legally
distribute copies of that recording without paying or asking permission.

This is nothing new, of course.  But I don't see any lack of clarity here,
in principle, unless you are unfamiliar with the current rights/licensing
regime.



  (Or, perhaps the performance is
>a T-shirt and belongs to the better T-shirt manufacturer who captures the
>best version of the performance.  If this is the case, there is no IP,
>merely product.)

This is nonsense so far as I can tell.  There is a reason music (et al.) is
distinguished from physical property by calling it "intellectual property"
-- we already know there's a fundamental difference (at least I do, I'm not
so sure about Jack Valenti).

If you're trying to make Valenti's point then I'll argue against you the
same as I'd argue against him.  Intellectual Property is not the same kind
of thing as physical property.  That's why it must be treated differently.



>If it is, as I would prefer, The Musician...  Why is it so easy to take
>those rights from the musician?  Substitute Author or Painter for musician
>in that last sentence.  When a painter sells a copy of her painting (I'm
>thinking of Julie Bell) does she sell her rights to that image?  Of course
>not.  So why do we pretend that a musician can be deprived of his ownership
>of a performance?
>
>If these rights are non-transferrable, would that make a significant
>difference in this discussion?  I think it would.  I think it would solve
>the problem.  I believe what we are arguing about otherwise is which piece
>of the carcass which corporation is entitled to, surely the musician
>doesn't even enter the discussion.


Ah, well, transferability is a separate issue, and one worth considering on
its own merits.


First of all, though, I'm not interested in "rights in the author" -- I
believe a merit-based market for music (et al.) has to be based on the
"rights in the work".  Sell the art, not the artist.  Otherwise the market
dynamics are fundamentally distorted and culture will be distorted on
balance.  (I'm repeating myself here, but the message seems to get lost so
it seems to bear repetition.)

As far as "pretending that a musician can be deprived of his ownership of a
performance" that's not what the legal paradigm sets up.  The rights are in
duplication/distribution of fixed works.  Those rights are what is
transferred, not the "work in and of itself".  It's merely a bottling
mechanism for fixations of works that has been set up as a market.  And of
course, new technology has played havoc with that content-control
mechanism, thus undermining the market enforceability of those rights.  So,
that's why the paradigm needs to be changed.  However, just because this
particular rights paradigm is running into logistical problems doesn't mean
all possible rights paradigms for intellectual works are non-functional.
The service model paradigm still is feasible, and that involves blanket
licensing of usage rights.

(Note: The big corporations don't like this idea because it ameliorates
their power to control the market.  Blanket licensing is a constraining
factor on the market power of such rights.  This is one reason I support
them.  As an artist, I don't require market-dominating power in an
intellectual rights regime -- I'm perfectly happy with balance.  So this is
why arguments against corporations seem, to me, mismatched with arguments
against blanket licensing.)


Also, I'm arguing for a market structure where most artists will not have
to assign them to anyone else, corporate or otherwise.  But I would prefer
a market structure where there is incentive for the artist to retain rights
rather than a rights regime that prohibits assignment.

Even in my ideal market, there will be a place for celebrity-driven
markets, and in those cases the market dynamics (scarcity) of celebrity
will determine that assigning rights is useful (because only the big corps
or other rich entities have the resources to play the celebrity game
consistently).  So, if an artist "needs" to become famous for some reason
(the art certainly doesn't demand it in and of itself), then by all means
let them assign their rights to a big corporation in return for fame and
hopefully some decent cut of the financial action -- that's their risk to
take, and their gamble to lose if that's the case.  I don't care about
that, as long as there is a merit-based market alongside the celebrity
market that is effective.

No one "deserves" fame and anyone who wants to play that game should take
the risks.  But, culture does deserve to reach its best-fit audience in as
fluid a manner as possible without the market bottleneck, and that's my
goal here (without depending on fame as the exposure conduit, which is the
distorting factor I'm fundamentally criticizing).

Dan
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