A Brief History of Artists’ Control of Their Product by Jonathan Segel

by Jonathan Segel
(re-posted by permission, copyright in the author)

I would like to start out by saying that I am writing in a completely subjective voice—this is opinion!— with annotation from other similar voices. This isn’t an academic paper, but I will try to cite others ideas – hoping that I can remember where they came from!

I’m writing here about the current situation that musicians find themselves in with respect to economic and the ability to sustain any sort of career as a musician. There are, of course, numerous ways in which people who are musicians can make money or have a career doing such. The ones that interest me are the type that are based in the creative process of composing or performing one’s own music, including making recordings thereof. I am not so interested presently in discussing the economics of performing other people’s compositions (as classical musicians do, as jazz “standards” players do for, for instance, hotel lounges, nor as cover or wedding bands do), but I would like to touch on this briefly later. I am mostly interested in how a composer or writer can make a living, and in this variety of musician I do include all live improvisers and performers of their own music.

It seems that historically, composers have had about a 200 year stretch of time in which they were able to control their own economy, based on a salable item that was a representation of the music. Of course, one cannot sell the music itself, it exists in real time: “when you hear music, after it’s over, it’s gone in the air, you can never capture it again” as Eric Dolphy said. Prior to around 1800, professional composers in general relied on either a royal or church patronage to pay them for composing. It is unlikely that prior to, say, 1400, composers were kept alive by the royalty to write music—with the exception of perhaps court jesters or griots as part of a royal entourage. However, with the age of reason and the restructuring of many governments, opportunities opened up for the composers to be in control of the licensing of their works themselves. While Mozart wanted freedom from his employer (the Archbishop Colleredo) to be able to receive performance fees, when he was finally “fired” in 1781, though his fame continued to spread, he only made money when he himself was performing, despite writing some of his greatest pieces in this time (and most musically intense, apparently difficult for audience and players), so he went back to a part time gig from a royal employer, Joseph II in 1786. Despite this, he never made enough money to get out of debt, even with rich admirers pledging yearly amounts. It is thought that he made *some* money from the sales of sheet music that he had written for Joseph II, but nobody knows the exact deal. He died, in debt, in 1791.

A landmark in this history is available to us in the form of a receipt from Ludwig Van Beethoven in 1805, where he is promising several piano pieces to be written for a London based publisher for an advance of 5 pounds. I say this is a landmark, as this is the first instance I have heard of where a composer is directly selling representations of their compositions (in the form of sheet music) and doing so in advance of their having been written!

To run through this quickly, the 19th century managed to upgrade composers’  abilities to market a product themselves (or with the aid of agents and management, that is to say, not necessarily with the aid of royal patronage) by means of selling scores of their works for people to play at home or in concerts, or by performing or conducting their own pieces. A side effect of this in the art music world meant that large scale pieces were simpler and more crowd-pleasing, while the pieces performed in small salons were the ones that were more adventurous in terms of developing the musical language.

The 19th century also gave us industrialism and thus a population moving toward urbanization. By the late 1880s people had developed an analog means for reproducing actual sound waves, it didn’t take long for this to become commercialized. The commercialization of recording music produced vast changes in the musical horizons of most people in the western world, and had major effects on the music itself. By the start of the 20th century there were three major differences: 1) composers and performers could sell their recordings (to record companies, of course, if not directly to listeners), 2) people in general could have music anywhere they had the device to play back a recording, and 3) the technology of recording limited the length and dynamic range of the music being recorded.

The music that became popular initially was loud and short, in general. Prior to World War I, many brass band pieces were produced on recorded media, and many of these were military style, which had two lasting cultural effects: 1) some sort of militarism and patriotism was common in urban environments enabling the US to easily conscript people for war when the US joined the World War fray, and 2) John Philip Sousa himself demanded payment for being the composer of the pieces on the recordings, and being so important a patriot he actually petitioned congress to enact laws regarding “royalty payments” to composers for recorded media.

Here begins the great story of recorded media. It goes through many changes over the course of the century, wax cylinders, 78rpm shellac records, 33 and 45rpm vinyl records, tape, multitrack tape, cassette tape, digital tape, compact discs, and finally the digital information freed from the physical media and stored and passed back and forth between peoples’ hard drives.

So. Let’s talk then about the value exchange. What is the value that is being translated into a monetary currency here, when composers sell music? Since a person can’t actually “own” music itself, I understand that the value is in the hearing of it. Music, indeed art in general, has an intrinsic value that gives an audience some form of pleasure or meaning when it is being heard or viewed. The performer of music can sometimes charge people money to hear them play. The composer of music had more limited options, unless they themselves performed it, until the rise of physical media, which gave them a physical object that could serve as the currency for the value exchange (albeit additionally laden with the ideas of mechanical and artistic royalties to enable this.) I would like to point out as well that with the development of the recording arts themselves, a huge compositional aspect to recorded music came to exist within the recording itself, perhaps more akin to sculpting sound. The final product, the “sculpture” would then be the final mastered version of the piece.

So here is where our current problem arises. When the recorded piece of music is made, the information is now able to be digitized and copied with no degradation from the source media (from a compact disc—a vinyl record can be copied when played, but as it is played it plays an analog representation of the piece, and a copy is degraded by another generation.) Of course, when a digitized file is made, it can be copied into other digital file formats that may degrade the original (e.g. MP3 or AAC+ file formats, which purposefully lose some of the information.) Regardless, the inherent value of a piece of music is in the listening, and that value does not disappear.

Adherents of what we now call “Media Piracy” claim that “Copying is not theft. Stealing a thing leaves one less left. Copying it makes one thing more”. What is happening here seems to be a willful ignorance that the inherent value is still there, not being paid for in the distribution of additional copies. These same individuals would certainly make the claim that they are copying the music in order to listen to it, (though there have been studies that suggest that the hard drives of the biggest illegal downloaders are full of unviewed or unheard media!) but are refusing to admit the relevance of the social contract that says that that inherent value is what is used in the exchange rate with monetary currency. I see this as a hypocrisy: either music has no value at all, (in which case why copy it to begin with?), or it has value and the copiers are refusing to admit that it does, simply because it is a copy. There is no way that a piece of art can have value and exact copies of it cannot. There is no way that anything can both have a value and not have a value at the same time (in our physical universe.)

I also see this as the main problem with the Creative Commons licensing formula. The strictest license allows anybody to “download your works and share them with others as long as they credit you, but they can’t change them in any way or use them commercially.” The idea here is that there would be no economic exploitation. This, however, ignores the fact that the value is there so any copying whatsoever is in fact economic exploitation.

I think that this sort of breaking of the social contract of value exchange is becoming more and more common. However, we don’t have people breaking the social contract of paper currency’s value as often, simply because there are extremely restrictive laws regarding counterfeiting.

Similarly, paper currency (and coinage to a large extent) is really only worth the cost of the paper and part of our societal systems allow it to represent value by means of a social contract. Listening to a copy of a piece of music would be like taking somebody’s currency and then claiming that it is only paper and therefore valueless, …and then spending it!

A willing disbelief of any inherent value of anything can lead to the acceptance of the idea that a copy of a piece of art has no value (even when the same person is utilizing the cultural value of this copy.) The morality that allows this hypocrisy is one that sees such conflicts as anachronistic. Jennifer Egan’s latest novel, “A Visit from the Goon Squad” has some very funny chapters set in the near future involving children who have grown up in the current media environment who refer to this sort of moral dilemma as a form of “Atavistic Purism” (though, the use of atavism in social sciences should refer to an actual previous state and there is no morally pure previous state of society. Perhaps it should be “Atavistic Puritanism”.)

Indeed, more and more younger people becoming adults (in the legal sense) are seemingly oblivious to any morality involving copying others’ intellectual property. See, for example, this New York Times article on plagiarism. Many believe that things available on the web are fair game and “authorless”. One German teenage apparently even plagiarized most of her novel and when caught, said: “There’s no such thing as originality anyway, just authenticity.”

Additionally, many people in the “sharing culture” believe that artists and musicians are either overpaid to begin with or are somehow untrustworthy enough to pay for what they do, or that the creative class’ output has little value to being with—all the while benefiting from this same output. See this Salon article. Or, they somehow believe that supporting intellectual property rights is somehow opposing free speech! As if supporting workers rights were somehow different.

It’s easy to see this same mindset in much of the popular music of today—a lot of it is made out of other music. I recently watched a video interview with a famous DJ, (Theo Parrish ) who claimed that he favored “artistry over convenience” in his milieu, denigrating the use of computers in favor of playing vinyl records on turntables, even going so far as to compare the “artistry” of finding old records and playing them as a DJ versus using a computer playlist to painting with oil paint and brushes versus using photoshop. I was incredibly taken aback by the narrowness of this focus, where he was willfully ignoring the basic fact of this essentially bourgeois use of the labor of others by making music from other peoples’ recordings of music! In essence a selector DJ is the very paradigm of capitalist use of the labor of others, where one is paid for their taste, the choices they have made of in others’ music being their talent. But this view of intellectual property or ownership of music is clearly not even part of the mindset of such an individual.

I would even go so far as to say: perhaps it is no longer OK to use samples of other peoples’ music to make music that you claim is your own, or represents you. This is an unpopular viewpoint, I know, and one that has been fermenting in me for a long time. I admit freely that when “sampling” started in Hip Hop in the 1980s, and was then used as parts in so many other musical genres, even so far as plunderphonics, I believed in the idea that when a sample of one music is taken from its initial context and used in an entirely different context, it bore an almost surrealist element of juxtaposition, which made, to my mind, interesting forms of semiotics, unintended meaning made by the juxtaposition of contexts.

Unfortunately, this has developed into a culture of music making where the idea of juxtaposition is no longer in use, where the context of the sample is the same context of the music it is used within. It is not only no longer interesting, it has nothing to say. When Apple made Garageband, an application that by their very advertising tagline needs “no musical talent” to make “music”, I think it basically ended the game. Yes, those loops are lacking any rights other than the one Apple sold you with the software, equivalently McDonalds is selling food with no nutritional value.

The Pirate Parties that are infiltrating government in Europe are additionally opposed to copyright, basing their argument on some economic model of “blockbuster” entertainment releases (e.g., “The Avengers” opened with a $200 million weekend, therefore after a year, it should be free,) completely ignoring the facts that 1) most artists are dependent on the “long tail”, that is to say that the project either will never recoup its investment or may make it back if sold over a great length of time, and 2) somehow it is alright for people in other professions to save money to provide for their children but when that savings is in the form of intellectual property it is somehow unreasonable.

If an author writes a book and it sells well, what argument can you possibly make that she isn’t doing it to provide for her children or grandchildren, that it should be free after the first five years in print?

The entire Pirate Party basically comes off as a bunch of self-centered teenage boys in their views on what they want and why and their severe lack of human empathy.

This is not a pretty picture of the future. If you combine these ideas with the veneration of popular idols who do nothing, (“What does a Kardashian do?” “Kardashes…?” ) we become a society that is easily manipulated by media and thus easily controlled. In western culture, even into the 1970s, people were interested in intelligent and artistic people in society. As education in America began to suffer in the Reagan era, and continued a 30 year slide toward a population of people who are convinced by the pyramid scheme of Republicanism, we have found ourselves in a society that produces more vacuous media than any other, at the expense of the minds of the audience, enabling the current generation controlling the thrust of pop culture to be willfully ignorant of any political or cultural history that came before them.

Many people think that the music industry also started its artistic decline in the 1980s even as it began an economic upswing into the 1990s. I have heard anecdotes that say that the reason was of course the wholesale introduction of organized crime who saw the 13 million copy sales of “Frampton Comes Alive” and made some quick calculations. Of course, we’ve been fed crap for years, but in the past decade, or decade and a half, a huge percentage of media made is either directly using older media (i.e. sampling, so-called, though entire pieces are lifted piece by piece) or referring older media or authors, not merely as quotation but as if a particular album or artist was a genre unto itself that newer artists could be part of. (I’ve said it before and I’ll say it again: I’m tired of indie-pop bands who just discovered “Pet Sounds” and think that they can be part of it as if it were a genre.) The idea of venerating a DJ based on their expression of “who they are” is as intensely bourgeois as veneration of a king because of their choice of composer for their court dances.

Some people have written that this is simply a market demanded “supply versus demand” situation, where music is now devalued and seen as overpriced. I somehow don’t doubt that it is devalued in the minds of the consumer (why pay when we can get something for free?) but I don’t believe this changes any inherent value. I think the perceived value is lowered due to ubiquity, that is to say, music is everywhere and with the advent of personal listening devices has become almost obligatory background information. This leads to a new problem of perception of music, let alone the value of music: most people are constantly “hearing” music. How many are listening? The iPod has changed our culture, there are even sociology courses in these changes that make us “alone, together”, and we all know the “why, when I was a kid…” stories of listening to LPs and looking at the album cover in a dedicated session, something that compares to dedicated classical music audiences (those that aren’t sleeping) listening quietly and intently to the music in a small auditorium or salon. I offer this comparison to bring me back to the idea of the development of the western musical language over the course of the 18th, 19th and early 20th centuries. “Listening” allowed a forward momentum. “Hearing” seems to have allowed a stagnancy in development. (Though in this article the author believes that people are indeed listening, and that this is an modern urban attempt to control personal space in crowded environments. I would tend to think that the intention is listening, I certainly use headphones for critical listening myself, but I still bet that for most people it’s just background music for their current endeavors.)

So, it’s 2012. We now have a culture that has been distrustful of intellectuals since before eggheads won the war with their atom bombs and cryptography, a culture gradually educated less and less, taught to worship “cool” by a media culture that sells it to us, taught to idolize the rich by the rich themselves, a culture where media necrophilia is the norm (why remake movies that were good to begin with, anyway?), where new and creative art is made less and less, where an artist cannot survive economically due to these factors combined with the lack of control of the currency exchange of their art.

Combine this with our current economic and political situation, the wars based on control of energy production and fueled by religious positions (don’t even get me started on this!) Where can this end up if not a culture that falls, as did Rome?

Ok, that’s sort of a bummer.So where can we go? Can we rebuild some sort of society that values art and music? It’s unknown. Can we ever make a way for artists and musicians to gain some sort of value for their work? This could be possible, but it will be difficult. For one thing, there is no such thing as “sustenance level capitalism”, only growth-oriented capitalism.

The pundits who claim that the internet “leveled the playing field” for musicians got just that: a level field. A whole lot of mediocrity (yay, we won the DIY revolution!) Unfortunately, the modern fan-based patronage hasn’t panned out the same way the old Royalty-based patronage did, it’s still a situation where the rich (corporations, usually) pay and everybody else listens for free—to those who get the production paid for by advertising!

For most artists it’s a case where they pay for their own production costs themselves and then a few people buy the music and everyone else listens for free. There are of course a few lottery winners in the fan-based patronage, touted as examples by tech writers in various blogs of course, but there are as many of these as actual lottery winners—and certainly those are the ones to garnish the media attention, why wouldn’t they be?

We can try to educate people, not only in the realities of being a musician/composer/artist/dancer/whatever, but also in general. I do believe that more education in general is necessary for the world at large. It can only help. I’ve been a teacher of music for several years, and while of course I am teaching musicians, I always do try to include, for example, social relevance into music history and mathematical relevance into music theory as a way to get people to think. I can see that it works, to some extent, to get students thinking around the present idea instead of trying to memorize.

Economically and technologically, I’ve heard a few decent ideas. The best of which so far seems to me to be Paul McGuiness’ article in GQ where he points out that the ISPs are the ones making the money here, and how it should not be difficult, in fact is possible, to know exactly which bits have been downloaded by whom when. It’s pretty easy. Oh no, you say, I don’t want anybody spying on me! Well, tough, it’s already happening.

If you’re on the internet, your privacy is compromised. In fact, as Jaron Lanier points out repeatedly in his excellent book “You Are Not a Gadget”, the anonymization of one’s presence on the internet has only worked out for the worst, bringing out the troll in everybody. If we all had to be ourselves publicly, we might have to back up our various statements in real life, idiotic or not.

It occurred to me recently while trying to find a decent mobile phone plan (I recently moved to Sweden) that the real winners in the entire streaming radio/cloud based collection services are your phone companies as much or more than the ISPs. Apple, Google and Amazon are all chomping at the bit to get everybody’s music collection’s uploaded, and Spotify, Pandora, MOG, etc, are all deep into mobile app development. (note: I worked for Pandora for 3 years, until April 2012, so it’s iffy what I can actually talk about w/r/t the company in a legal sense. Leave it at: we had a bad breakup.)

Recently, for example, Verizon removed the unlimited data plans, to the glee of the wall street pundits. The more you stream, the more money they will make. I know how much Pandora pays in royalties, and I know somewhat how little Spotify does (very confusing, when they have made individual deals with major labels) but as all the spreadsheets show, that means zillions of plays per before a composer earns U.S. minimum wage! As Paul McGuiness noted, it’s certainly an easy matter of digital bookkeeping to know what’s being played. Why not have the phone companies chip in with their immense data charges? I mean, they even charge people for sending SMS texts… that must cost them absolutely nothing. I’m betting the data usage is near a 1000% markup.

Other possibilities have included the more idealistic ideas presented in forums, such as caps on value for music, wherein once that cap is paid it become freely accessible (this in response to my musings that potentially value can be calculated by the number of listens to a song: if you bought a CD and listened once, would the tracks then inherently be more valuable than if listened multiple times, as each listen spreads out the cost of the CD…?) Or ultimately the idea that there will be no more professional artists or musicians and the art forms will lapse to the era of folk music or folk art.

Personally, I like recording music, manufacturing music in the studio. As long as I have a job that can keep me alive (which I do not at the moment…) I will continue to do so, regardless of the ability to “sell” the music. As a solo artist, I’ve basically been priced out of performing with a band: I can’t afford to pay other musicians nor even rehearsal time if the band isn’t popular enough to earn more than $400 for a gig, and that just doesn’t happen.

So I’ll see you on my front porch in a few years?