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.