How Years Of Copyright Maximalism Is Now Killing Pop Music

from the originality-is-a-con dept

Almost five years ago, we warned that years of copyright maximalists brainwashing the public about ever expansive copyright and the need for everything to be “owned” had resulted in the crazy Blurred Lines decision that said that merely being inspired by another artist to make a song that has a similar feel, even if it doesn’t copy any actual part of the music, was infringing. We warned that this would lead to bad things — and it has.

Over the last few years, we’ve been detailing story after story of similar cases being filed. It’s become so common that we don’t even bother to write about most of the cases. As we’ve said, though, this really is the industry reaping what they’ve sowed. It’s gotten so crazy that even the RIAA (yes, that RIAA) has felt the need to tell courts that maybe their interpretation of copyright has gone too far in the direction of over-protecting copyright holders.

It’s now become such a fact of life that the NY Times has a giant article on how copyright is basically eating pop music these days. It describes a bunch of these cases, and notes that merely “being influenced” makes you liable for copyright infringement, and how that’s causing problems for the very concept of pop music:

That is, to put it plainly, bad news for pop stars, and the producers and songwriters who help them craft hits. They are now marks for frivolous litigation premised upon nebulous assertions as well as a complete and willful ignorance of how pop music is actually made.

Occasionally, pop innovates in a hard stylistic jolt, or an outlier comes to rapid prominence (see: Lil Nas X), but more often, it moves as a kind of unconscious collective. An evolutionary step is rarely the product of one person working in isolation; it is one brick added atop hundreds of others.

Originality is a con: Pop music history is the history of near overlap. Ideas rarely emerge in complete isolation. In studios around the world, performers, producers and songwriters are all trying to innovate just one step beyond where music currently is, working from the same component parts. It shouldn’t be a surprise when some of what they come up with sounds similar — and also like what came before.

The whole article is great, including this fantastic line:

It fails to make a distinction between theft and echo, or worse, presumes that all echo is theft. It ignores that the long continuum of pop revisits sonic approaches, melodies, beats and chord progressions time and again. It demands that each song be wholly distinct from everything that preceded it, an absurd and ultimately unenforceable dictate.

All echo is theft. That’s definitely the argument that many copyright system supporters have made for years. And now it’s coming back to bite them.

But here’s the most frustrating part of all of this: even with that one RIAA filing admitting that sometimes copyright could go too far in over-protecting rightsholders, it’s not stopping them or other copyright maximalist organizations from still pushing for more expansive, more draconian, more protective copyright reform. Get ready for it, because it’s coming. There are efforts to import the EU’s dreadful copyright directive, as well as a very strongly backed effort to get rid of the DMCA’s safe harbors. And this is coming at a time when actual revenues for artists have continued to shoot skyward.

However, as with so much about copyright, this is all about third parties — not the artists and creators themselves — looking for their own monopoly rents. They’re looking to figure out how to get a piece of the pie for literally doing absolutely nothing. But if something becomes successful, suddenly they all want a cut, and copyright maximalism has handed them the tools to get exactly that. And, as a result, pop music is under ongoing litigation assault. The labels are making money. The lawyers are making money… and, according to a new Rolling Stone article, the insurance companies are making money:

While some record labels may have the budget to hire on-call musicologists who vet new releases for potential copyright claims, smaller players who can’t afford that luxury are turning toward a tried-and-true form of protection: insurance. Lucas Keller — the founder of music management company Milk and Honey, which represents writers and producers who’ve worked with everyone from Alessia Cara and Carrie Underwood to 5 Seconds of Summer and Muse — recently began encouraging all his songwriter clients to purchase errors-and-omissions insurance, which protects creative professionals from legal challenges to their intellectual property. “We all feel like the system has failed us,” Keller says. “There are a lot of aggressive lawyers filing lawsuits and going ham on people.” (He’s particularly critical of publishers whose rosters are heavier on older catalogs than new acts: “Heritage publishers who aren’t making a lot of money are coming out of the woodwork and saying, ‘We’re going to take a piece of your contemporary hit.’ ”)

Under E&O policies, insurance companies can cover several million dollars of an artist’s costs if they lose a copyright lawsuit. Joe Charles, senior vice president at insurance provider Alliant Insurance Services, says that as many as half of his personal A-list music clients — a roster of stars who already pay for tour insurance and other standard entertainment-industry policies — have recently shown interest in E&O coverage. “When a major claim is all over the press, we’ll get 10 to 20 calls from musicians asking how they can protect themselves and what it will cost,” Charles says.

Notice that all this is money that is not going to the actual artists. The entire premise of the Rolling Stone article is basically that having a hit song is simply too expensive these days, because of bullshit copyright lawsuits that actually have a chance because copyright law has gone insane. Something is clearly broken here, and supporters of the copyright system need to admit that maybe they’ve gone too far.

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Comments on “How Years Of Copyright Maximalism Is Now Killing Pop Music”

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58 Comments
Scary Devil Monasterysays:

Re: Re: Re: Re: Re: Re: The History of Music

Yup. Axis of Awesome did a wonderful demonstration of just HOW unoriginal music really is.

We’re talking about what, a hundred hits from as many different bands, all based on the same configuration of chords?

The blurred lines decision is a tool the RIAA is really afraid of using because even they must be aware that its a legal MAD.

Anonymoussays:

Re:

There’s no need to be torn. Copyright maximalism is joined to pop music at the hip.

Once copyright maximalism kills off enough funding and interest in pop music they’ll have nothing to maximalize their copyright on. And what that happens, in the words of Pikasprey Yellow, "I guarantee that the life in their eyes will fade away in the most satisfying way imaginable."

aerinaisays:

This is working exactly how RIAA wants it to...

While they may feign being upset, adding all these additional hurdles and unexpected fees gives the people RIAA ACTUALLY represents more money. It makes the environment so toxic for an independent that they HAVE to sign to a label out of fear of having their creation taken away from other greedy labels, lawyers, and whoever else thinks they are entitled to free money for nothing.

I mean… it is really a perfect model when you are trying to extract extortionate rents from the artists who really do all the work…

That One Guysays:

'How about that, the water we chummed is filled with sharks...'

Was just about to post that very thing. Sure a lawsuit happy arena is a pain and downright disastrous to artists, but primarily for smaller artists, those that don’t have a label backing them to scare off or pay the parasites.

With the threat of ‘publish a song on your own that sounds a little too close to another and face a million dollar lawsuit, or sign with a label and avoid that’ people are going to be much more likely to ditch self-publishing and go back to the gatekeepers, playing right into their hands.

Given that they’d have to be nuts to object to the general trend or try to reverse it, as it’s working out great for them.

Bergmansays:

Re: This is working exactly how RIAA wants it to...

These decisions won’t make RIAA happy for very long, since there’s a fundamental problem with the viewpoint that copyright protects ideas not expressions. And once the courts notice, then combined with recent precedents it has the potential to destroy just about all music copyrights, everywhere.

Music is iterative.

The thing that illegal copying and theft have in common is that neither one confers ownership. If courts are ruling that the current generation of musicians are violating copyright because they utilize new expressions of the same idea, then those older expressions of those ideas cannot be copyrighted either, because they in turn infringe the copyrights of older expressions!

And if copyright protects ideas, not expressions, the fact that some of those protected ideas are older than their creator’s life plus 70 years combined with copyright violation not conferring ownership means that NOTHING is copyrighted!

Anonymoussays:

Re: Re: This is working exactly how RIAA wants it to...

And if copyright protects ideas, not expressions, the fact that some of those protected ideas are older than their creator’s life plus 70 years combined with copyright violation not conferring ownership means that NOTHING is copyrighted!

Lol, that’s cute – those ideas didn’t legally exist until the copyright was filed. And even if they did exist, the inventor is dead and can’t sue. So no new ideas until 70 years after all current copyright holders are dead!

Consulting payments for this and further ideas can be made to Trolling Rent-Seekers, LLC. We accept cash, credit or salt. Can’t wait to hear from the RIAA.

Wyrmsays:

… and supporters of the copyright system need to admit that maybe they’ve gone too far.

They do, when they are the victims. As quoted in this article, the RIAA did admit it once, which should send others the message that it has really gone too far.
But that’s the problem: they know it. They just won’t admit that they were wrong and that things need to be rolled back. They prefer to fight on single cases such as "Blurred Lines", but not the overall issue.

bobsays:

worth of digital goods

Yeah the NY Times article even has a link to royaltyexchange .com where you can own a portion of a royalty. I had no idea royalties could be divided up for sale like bitcoin. Seems their worth is just as likely to drop or raise on the whims of society as bitcoin does.

What’s truly crazy is that neither have any intrinsic value. Only what people think they should be worth at the time. And with music, especially pop, that value can change instantly.

Cdaragornsays:

Re: worth of digital goods

What you’re describing isn’t actually the core of the problem. You’ve just discovered Economics, my friend.
Nothing has "intrinsic value". All value is determined by the individual and therefore the "whims of society". This is more obvious in areas where haggling is more prominent but it’s absolutely true everywhere. It’s how the entire supply/demand curve works.
Much of the issue with the value of digital goods is that they have consistently been massively overvalued. People tend to freak out when they see the low dollar points that come out of calculating things the way physical goods are when the cost of reproduction is literally 0 and overhead costs are in the sub-dollar ranges per month. They can’t handle that and start insisting that "normal" prices must be applied here because reasons.

Stephen T. Stonesays:

This is as far as I'll go with this.

I heard your song back in the year 2002
I learned to sing it so I’d sound a lot like you
Your type of music is what I’d try to outdo

Oh-ah-oh

I made a song that sounds like yours the other day
Nobody told me that it wouldn’t be okay
But when you sued me, it sure taught me the hard way

Oh-ah-oh
You wanted my head
Oh-ah-oh
And my career dead

Copyright killed the pop music scene
Copyright killed the pop music scene
This outcome was not foreseen?

bobsays:

Re: Re: We're finally living a Spider Robinson story

That’s a good short story.

But why did he delete the tapes? Knowing that we aren’t creating but instead rediscovering doesn’t sound like a big problem to me.

I would think that that knowledge would be accepted by the populous and forgotten over 100s of years.

Scary Devil Monasterysays:

Re: Re: Re: We're finally living a Spider Robinson story

"But why did he delete the tapes? Knowing that we aren’t creating but instead rediscovering doesn’t sound like a big problem to me."

Because you aren’t a creator by profession and/or calling. Let’s assume every christian, jew, muslim and hindu manage to obtain mathematical proof that God does not exist and that every prayer they have ever uttered was simply a deluded person talking to thin air.

Care to guess the extent of the chaos?
I like to call copyright a cult, because it is. A religion centered around the tenets of control and ownership over some immaterial concept that you must take on faith is unique and indivisible and sprang wholly formed from the inner depths of your soul after extensive and laborious effort.

The RIAA and MPAA have made it their lives work to convince artists and hopefuls that this is sacred truth…
…so at the end of that everyone invested in art would have to realize that, in fact, their work is about as unique as flipping burgers or working an assembly line.

If the copyright cult hadn’t fostered belief in copyright and the creative process to the point where it actually makes up a new religion then artists and creators might move on and settle for "This sounds damn fine" or "I could do this piece better".

But we live in an age where that belief is taken so seriously that a german rock band will pursue a ten-year litigation case against another artist because there are two seconds worth of industrial noise from the german bands tune in the work of the new artist.

If I was a US senator and actually cared about a few million special snowflakes with fragile egos going berserk or suiciding, then I’d probably erase that recording too.

bobsays:

Re: Re: Re: Re: We're finally living a Spider Robinson story

If the copyright cult hadn’t fostered belief in copyright and the creative process to the point where it actually makes up a new religion then artists and creators might move on and settle for "This sounds damn fine" or "I could do this piece better".

I’m an engineer by trade so yeah, "I could do this piece better" is very natural to me. Engineers are always thinking of better ways to do things. Which would explain why the notion of artistic creation like you said wouldn’t have occurred to me.

Thanks for the explanation.

Would your description of copyright as a religion also apply to the real world? I dont personally believe so. I dont think people (even copyright maximalists) believe that copyright signifies the belief that the creation came from solely the one person and is indivisible. I would think it is more about how much money they can make as well as the prestige of being known to have done something of note.

Without copyright people create anyway, they just may not be able to support their lifestyle by just creating.

Anonymoussays:

Re: Re: Re: Re: Re: We're finally living a Spider Robinson story

Most of the copyright maximalist are corporations. They are the people that attack the Internet using piracy as an excuse, but their real issue is that they are losing control over what is published, and with it their ability to make a profit. They well know that copyright is not a driver of creativity, as they reject far more original works that they ever accept for publication. They are scared that without copyright their businesses would be washed away by a flood of self published works.

Anonymoussays:

Re: Re: Re: Re: Re: We're finally living a Spider Robinson story

Without copyright people create anyway, they just may not be able to support their lifestyle by just creating.

This suggestion doesn’t really make sense to me. Copyright by itself doesn’t lead to money rolling in. You can license something for distribution, sure. But the copyright on the content doesn’t make the product worth more for the consumer. It’s why copyright lengths are completely silly. Copyright lasting 70 years after death doesn’t motivate more creation than 50 years after death.

As for a supported lifestyle, not everyone who’s a copyright holder is going to live it up like Robert Downey Jr..

Scary Devil Monasterysays:

Re: Re: Re: Re: Re: We're finally living a Spider Robinson story

"Would your description of copyright as a religion also apply to the real world? I dont personally believe so. I dont think people (even copyright maximalists) believe that copyright signifies the belief that the creation came from solely the one person and is indivisible."

Sadly, it does hold up in the real world. When I read what copyright adherents say out loud what comes to mind is the speech and body language of an iranian mullah or pulpit thumping western priest exhorting the virtues and commandments of the One True God.

"I would think it is more about how much money they can make as well as the prestige of being known to have done something of note."

Similar to the medieval church i often compare the copyright cult to, the top layer is primarily vested in money and control, naturally. But look at Sonny bono for a good example of people who take for granted that they should retain full control over information in someone else’s possession that bono (in every other area considered philanthropic) blurted out his admiration for China’s state censorship and rhetorically asked why we couldn’t adopt the same model to enforce copyright.

Here’s the thing. bono isn’t an undiluted asshole or fascist. He just has a conviction which makes him ignore what factual reality and common sense is telling him. That, in my book, is faith.

"Without copyright people create anyway, they just may not be able to support their lifestyle by just creating."

With copyright some 99% of all creators still can’t support their lifestyle by just creating. That calculation remains the same whether copyright exists or not. That the copyright cult (RIAA/MPAA/BSA/Etc) keep spinning a different story is what has so many of them believing, with all their heart that if it weren’t for "piracy" then somehow their self-perceived genius would let them live well just doing what they want to do.

Copyright is hyped and presented to deny the hard, unshakable fact that "Many are called but few are chosen" is still the golden rule when it comes to being an artist. It’s a religious belief, all right.

Wendy Cockcroftsays:

Re: Re: Re: Re: Re: Re: We're finally living a Spider Robinson s

Copyright is hyped and presented to deny the hard, unshakable fact that "Many are called but few are chosen" is still the golden rule when it comes to being an artist. It’s a religious belief, all right.

Indeed, and pirates are the devil, who will be cast into eternal denial of internet access at home if they exceed the Three Strikes rule, amen.

Wendy Cockcroftsays:

Re: Re: Re: Re: Re: We're finally living a Spider Robinson story

Would your description of copyright as a religion also apply to the real world? I dont personally believe so. I dont think people (even copyright maximalists) believe that copyright signifies the belief that the creation came from solely the one person and is indivisible. I would think it is more about how much money they can make as well as the prestige of being known to have done something of note.

"Religion" is not confined to monotheism. Take a look at some of the others.

The religion of copyright is faith-based exclusivism; the belief that if you conform to the prescribed rituals*, you will achieve salvation, where "salvation" means "Huge piles of dosh you can swim in like Scrooge McDuck."

The prescribed rituals include

  • getting signed up to a publishing/record company
  • signing your copyright over to them in exchange for promotion and distribution
  • releasing recorded or published items within segmented markets
  • touring to promote sales of copies of the recorded or published items
  • issuing statements condemning unauthorised copying

Woe unto the infidel, who doth not believe in the Almighty Copyright, the Holy Trademark, or in the doctrine of Ever-expanding Terms. Behold, he will be subject to infringement claims and speculative invoicing even unto the third and fourth generation.

Anonymoussays:

Re:

The independent music scene is still growing exponentially, with no signs of slowing down.

But those musicians will be attacked in the same way as soon as the make enough money that they can pay most of the damages. Also, because of lack of money, how many have been driven out of the business by threats of law suites that they cannot afford to fight.

That One Guysays:

Re: Re:

Also, because of lack of money, how many have been driven out of the business by threats of law suites that they cannot afford to fight.

More than that, how many won’t even try to enter the business for fear of a lawsuit bringing financial ruin should they write a song that sounds too ‘similar’ to another one? How many would-be musicians won’t even bother because it’s simply not worth the risk, and move on to other things, eliminating any chance for the music they had or would have created to be heard and enrich culture?

MikeVxsays:

The movie industry has been feeling this for years.

The steady churn of remakes/reboots/sequels in the motion picture industry (sometimes "motion putrid" seems more appropriate) owes a fair bit to this same effect. It is safer to remake/mutate something you already own rather than risk getting sued because someone once had an idea that came within screaming distance of yours.

restless94110says:

Insane

It is literally insane how informative and right you can be on copyright issues, but then flip and be completely crazy when talking about Trump or litigants like Devin Nunes. Nunes will succeed just like the Covington Kid has done. It’s coming.

I wish you would have more articles about copyright tyranny and NO articles about Trump or individuals who are fighting slander and libel (which you are against, meaning you are totally cool with slander and libel if you don’t like the people being slandered and libeled.) It makes you look stupid. Utterly.

And blind to boot. I hope that you somehow drop your nonsense and concentrate on copyright abuses among other things. An extra bonus would be that you strongly support Nunes in suing the fock out of slanderous crazed lunatics that don’t care about truth.

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