Lecture Notes from 11/13

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Class on Copyright and Music Industry

1:19 PM Class Begins Introduction of Guests:

Wayne Marshall – Ethnomusicologist. Post-Doctoral Fellow at the University of Chicago. Musician whose main instrument is the laptop. Synthesizes other artists’ music, doing so without permission to create his own art. Part of a group called “the Rhythm Method,” named after the Jamaican tradition of taking other artists music and crafting it to make it one’s own. Also a DJ, though he “clicks instead of spins.” DJ on Monday, November 13, 2006 at the Enormous Room from 10PM – 1PM. Raps as well. In his professional capacity, he writes about music for various publications and journals. Also runs a Blog on Caribbean centric music.

Mike Fricklas – General Counsel for Viacom. Principally a cable programming company. Moved into the internet property world as well, including IFilm and Shockwave. Owns Paramount Pictures. Mr. Fricklas works for the CEO. Viacom thinks of itself as a technology company that has consistently pushed the boundaries of new technology. Principle job is to advise the board of Directors. Spends most time on board governance and corporate transactions, but also spends quit a bit of time on copyright issues. Also works on deals, including the split up of Viacom and CBS.

Our guests are on two sides of a gulf. Each side has used high rhetoric, much like Dylan’s. Nesson argues that it is this type of rhetoric that made the 60’s fail. Unlike the empathic approach, it makes no effort to see the other side, as in Bob Dylan’s “Masters of War.”

Bob Dylan’s “Masters of War” – Described as a bad piece of music that becomes very powerful, full of violent imagery and wishes of death for those who drive the machine of war.

1:35 PM Mike Fricklas

Did the 60s fail? The strong language of Dylan was not a failure. It instead became integrated into the main stream. Copyright is not life and death, but the battles help to smooth the rough edges. The radicalism of the 60s is the establishment of today. People are beginning to realize that there should be a way to make a living writing songs and creating art, which means a degree of copyright protection. At the same time, companies have begun to get more sophisticated with their efforts to protect intellectual property. These companies are striving to allow creative uses of property while protecting the artists’ rights of distribution.

1:40 PM Wayne Marshall

The way YouTube has begun to allow people to create their own media without infringing on artists rights is promising, but to what extent does that end up putting a large burden of risks on the creative end of things. One now has to put oneself and labor out into the public in a way that may not be approved by the powers that be. In electronic music, where music editing software has democratized the tools of production, what are the risks for new artists? In scholarship, if ideas are expressed in the medium discussed using musical lyrics, what are the dangers that such scholarship will face chilling effect from copyright? The grand power balance means that the individuals could be hammered by the corporations at any time.

1:45 Mike Fricklas

In a perfect world, if we had all the resources to deal with this, we might be able to overcome some of these problems. Many of them, however, are structural that have been built up over time, and would require massive resources to overcome. If you are a small singer songwriter, the technology and the rights are empowering. They open up the world to the artists. A strong copyright interest can be very helpful for the small songwriter who may not have corporate power to help protect them. Consider for instance Universal, the biggest music company in the world. The biggest part of their business is taking songs that artists own and exploiting those rights, ensuring that the song writers receive the most benefit for their work. Microsoft has agreed to pay Universal a dollar on every one of their music players that are made, and they are going after Apple next. Universal uses its massive market power to ensure the most profitability for both the artists and the corporations.

1:50 Wayne Marshall

The model of the singer song writer still upholds a romantic vision of how song writing works. Musicians do not pluck these ideas out of the air. The build on old ideas, taking bits from here and there and putting them together in many different ways. For anyone looking to take these ideas and deliver them around the world on a peer to peer basis, artists still have to fly under the radar as there is no way to negotiate with a Universal.

1:52 Mike Fricklas

One area where there is a huge opportunity is for our company to figure out a way to deal with the small transaction. The market can figure this out, in the same way that EBay created markets out of people’s basement junk.

1:53 Nesson

We had a conference two years ago in which two camps clearly emerged. One was a camp of creators with lawyers, and the other was a dominate body of creators without lawyers. The notion of dealing with a legal regime seems both extremely frightening and extremely difficult. Is there empathy from both sides for these two camps?

1:54 PM Mike Fricklas

We spend a lot of time with volunteer lawyers for the arts. We see a whole variety of things that would never cross our radar stream but are nevertheless important to the independent artists. You study in law school all these rules to figure out which ones make sense. Getting to a point where we can figure out the rules costs us millions of dollars, and that is not a system that will provide a dispute resolution system for the vast majority of people.

1:56 PM Wayne Marshall

The companies with lawyers seem to be doing all right for themselves, and they enable a small number of hand picked artists to fulfill their dreams. They also lock a lot of other artists out. These companies put a monolithic slice of culture in front of artists.

1:57 PM Mike Fricklas

What we do and do well is provide what large audiences want to see. We help those artists to do what they do and maximize their returns. Without large companies there would not be stuff like South Park or Mission Impossible 3 or other big productions. It is easy to critique these projects, but cast audiences want to see them.

1:58 PM Wayne Marshall

This is a very circular thing. What is it that audiences want to see? It is what is on the tv in front of them?

1:59 PM Mike Fricklas

MTV puts on 50 products a year. Of that product, most will not survive. It is very much the audience deciding what will be successful. If they get it wrong, Fox will figure it out or NBC will figure it out. They have to connect with that audience or the market will weed them out. It is a very democratic thing.


Open up the discussion to include Rebecca, Mark Morrill (at Viacom with Mike Fricklas), the panel for this week, and the rest of the class.

2:02PM Wayne Marshall (Note: the time stamps from this point on might be a bit off. I apologize for any confusion)

Wayne Marshall played his Pedagogical Mashup of Jay-Z’s Big Pimpin v. a Mid-20th century Egyptian pop song that Jay-Z had taken the melody from. Wayne’s puts the two songs together to call attention to the relationship between the two. Wayne didn’t like the subject of the Jay-Z song, se he just used very small parts of the lyrics, taking out the parts that he felt were degrading to women. Wayne paid tribute to the old Egyptian song by modulating the Jay-Z song to follow the note changes in the original. Wayne doesn’t have the license to use the Egyptian song like this so he is theoretically taking a risk. At the same time, in this instance, Jay-Z didn’t license the song either, so he’s taking a much bigger risk since he made a lot of money off of the song.

2:08 PM Mike Fricklas

System that is functioning well should allow people to take works in a good creative directions while still offering some protection to creators.

2:11 PM Mike Fricklas, Rebecca Nesson, Wayne Marshall

Moral rights might be an exception to artists taking old works and transforming them in a new creative direction. It’s possible that the Egyptian company does not want their work being used in US songs at all. Wayne’s argument is that I should be able to do this if I am adding something creative. Can we have a compromise? Mike Fricklas says this is much more a US issue than an European one – Europe law says artist has intrinsic right to stop own work from being used in way not want to. Rebecca is more curious about the right of artist to selectively decide that some people can or can’t use a certain work. She is worried that it is the artist who is taking the risk – there might be a fair use defense, but that is only a defense. Could still get into trouble. This might stifle creativity if artists are always worried about what might happen. Little artist can’t afford that. Mike Fricklas says he can’t imagine any big company suing over something that small. Wayne does try to emphasize the transformative value of his use, but not everyone knows the law. Might have a random artist ignorant of the law who gets into trouble.

2:15 PM Mark Morrill, Deputy General Consel at Viacom

Practical reality is that no one is going after Wayne. Understands the worry, but says Wayne’s conduct is not even at the margin. His use is very clearly fair use. There is litigation going on in the movie industry – director’s guild brought litigation against company in Utah that was editing out offensive scenes and language in movies (edited out love scene in Titanic). Congress worked on releasing some clean versions for airlines etc. Collision of fair use with moral rights – artist might not want distributed in “clean” form.

2:19 PM Rebecca Nesson

Is there any way for Wayne to make money? If it is creative and fair use, why cant’ he earn money off it? Mike Fricklas says he should be able to earn money, but there are people who make money off of the licensing as well.

2:25 Student Questions and Class Discussion

Can copyright change enough to new world? Wayne says that on one hand, copyright will continue to adapt, will continue to evolve. Thinks celestial jukebox is soon to be here. Will require lots of convoluted negotiations among those who own the major rights. Assumption of MPAA, RIAA, etc. that they represent the majority of artists. Wayne thinks this is no longer true b/c many more people recording music now that not represented b/c the ability to produce music is more widespread Mike Fricklas sees many many threats. Big companies will go to where the money is. B/c of expense of enforcement and legal system, won’t go after lots of the little users. People will adapt to new set of conventions. Do companies want to interfere with things that the users want to do? At some point the desire to keep future customers limit what companies will actually do.

(Note: Mike Fricklas and Mark Morrill left at 2:30 PM)

How do you use licensing on something like Wayne’s mashing up of songs? Is compulsory licensing system a good enough system (i.e. you can use the song but you must pay a fee)? Wayne suggests using maybe a sliding scale – some people are in a position to pay for licensing, some aren’t. There will still be those “militant” people who feel it is their right to sue whatever content is available to them in the public sphere. How do you decide where the line is drawn? When do you start enforcing copyright? Maybe let the court of public opinion decide? Creative commons puts in the hands of the creator a wide array of mechanisms for possibly controlling what they want to do. There are limits, however, and even Creative Commons doesn’t allow true choice at individual level

How do you transition to a new system? Its hard for the average artist to know where the line is and how creative you can be. How do you start a shift to a place where everyone knows exactly what their rights are? Wayne thinks this sort of uniformity will require a large central authority. It requires full transparency of knowledge and full agreement of all parties. Wayne notes that this is one of the problems of Terry Fisher’s proposal as well.

2:39 PM Class ends with Wayne playing another “mash-up” of four different versions of “The Lion Sleeps Tonight”