Re: "Black Myth/Out In Space"? - Legal Status of Ownership

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#1 Sun, 1998-11-15 23:42
Last seen: 10 years 10 months ago
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Re: "Black Myth/Out In Space"? - Legal Status of Ownership


Thanks for your comments. Here is another lengthy ramble about the music business, creativity & the market.

I think we are talking about the same thing. When I use the term, "free market," I am not talking about "freedom" or the opposite of "communism." The term has a specific meaning, describing an unregulated world where money can buy what it wants and other considerations, such as democracy, are not allowed to interfere with the power of money. You say it's "our society." I use the term, "free market" to describe that aspect of our society (and other societies) that makes money and use value the ultimate arbiters of worth. At the time of Mozart, the free market did not really apply to composers. Mozart's situation was closer to that of musicians in the old "communist" set up which, you will note, I also criticized. Beethoven was the first composer to operate in a free market situation. Actually, copyright protection itself is an infringement on the free market since it is a creation of governments, just as the very existence of any corporation is a function of government.

Let's not forget that it isn't only artists who are exploited. If Sun Ra were given the just value of his creations, he would have been able to afford health care, even as inflated by it's corporate domination in the US. But what about the vast majority of humans who are not able to create something so valuable? Let me give an example of how health care works here. I just got a bill for some lab tests that came out to over $450. Since I have medical insurance (way overpriced & crummy as it is), insurance paid $90. A further $300 was deducted from the bill because I have insurance. So, if I didn't have insurance, as millions here don't, I would have had to actually pay that $400. This is a way that they have of making it necessary that I buy insurance. For many, they just have to do without many types of medical care. And that procedure didn't cost anything like $400 to do, even. Strictly a mafia type thing to make sure the insurance business is profitable. The lab could have made a profit and charged $140 (or probably even less). I don't know if such a procedure would be legal in most European countries but I certainly find it immoral. I don't think that players in the market should be "free" to do such things.

I think that part of the problem with respect (and even compensation) of artists in "our society" is that the free market determines their "worth" (for purposes of material compensation). If you are a popular musician and want a record contract, unless you are a superstar, you pretty much take what you are offerred. That is because there are thousands more where you came from. It is a buyer's market and the big music conglomerates have the market tied up. Bach had to work for a patron because there was no independent forum for music that included compensation (outside of being a wandering minstrel, which was about as lucrative as it is now). Now the market is "free" and Bach could go out and make a deal with anyone who was willing. But if an unknown new Bach wants to write a type of music that is not currently popular, he might as well be out looking for a patron. I have trouble, though, with the idea that, just because some things are better now than they used to be, I should not object to things that are still wrong.

In our society arts are not given the due respect, yet. It's part of a mentality: not few people (and I am not speaking only of bourgeoisie) do not see any difference between a fire-eater (with all due respect to fire-eaters) and -I don't know- a composer. Unless he is successful: our society venerates success: that's the only thing that can legitimate what you do. And that's not fault of the free market. I would say that's a pretty decent description of a free market.

Walter Banjamin wrote quite interesting essays about the artistic creation in our contemporary world, but I dare say that situation did not change very much since artists were at the service of a royal Court. I've read the Art Object In the Age of Mechanical Reproduction (I think that is the title) & it's something anyone interested in this topic should read but it doesn't address this question directly. Music & Society Since 1815 by Harry Raynor is a very interesting book that is about the transition from the old patron system to the modern system of public concerts and a music market. Not as much fun as Benjamin, though. I think the situation has changed a lot but it's hard to say if it's better or worse. One good thing about the current system is that artists are free to address whatever subject matter they like instead of only what a patron wanted. Of course, if buyers are not interested, the artist will starve and if the businessman is incompetent or dishonest (or even unlucky or just interested in unpopular genres or artists), you'll get the same result. Look at the situation of jazz & rock musicians in the old Soviet Union. The state record companies only released what was deemed acceptable (maybe more than you think, I have quite a few Ganelin Trio LPs on Melodiya and a truly wild Popular Mechanics LP on Melodiya too and the catalog of Melodiya releases contains many pieces by many of the composers now being touted as "censored by the communists."). There were countless samizdat releases of underground musicians, usually on tape, and the underground scene was very interested in them. Now, everyone is complaining that everyone has lost interest in anything that won't be a big hit. I, personally, am in favor of letting individuals pursue their own enterprises but with many institutional constraints to ensure fair treatment of the actual creators of the art. I am not interested in purity of concept at the expense of the lives of real people.

It's cynical, but it's like that, I am afraid: our society is not able to (or is not interested to) protect some categories, especially those who produce non-material objects, and that has nothing to do with the free market, since in Eastern Europe communist or marxist regimes the situation was not much better. Nobody really starved, but the theory of equal pauperism has been failing in protect almost all social categories, except those who stayed in power. There still is not a balance, in Western societies between the freedom we have and the costs we pay for it, although I feel that in some countries some problems have been more taken care of, like in Northern European countries (especially in the Sixties and in the Seventies), somehow in Holland (at least up to the Eighties), or in Canada. In Europe certainly musicians are better protected as far as royalties are concerned: the copyright is much better protected by companies like GEMA, SIAE, SUIZA, etc., than by ASCAP and BMI. Of course, it was much easier up to some years ago, when there were only State owned TVs and Radios: the controls were easier and definitely more efficient. With private networks blossoming all over, it's almost impossible to control what they are doing or what they are broadcasting: only the major private networks pay a fixed sum per year to the copyright societies. the others... well, it's a sort of Far West stuff... Well, there you are. Such protection can exist and has existed and still exists in some forms. My point is that the "free market" is conceptually opposed to protecting any non-market values. But we can make the market less "free" and protect such values. Outside the United States and Canada, as you point out, the rights of music composers are protected more. Free market advocates say this is a distortion of the market and is wrong. I say that this is a protection of people who are not powerful enough in the free market to protect their own interests and such rights should be extended. Just to use the tired old example, it is a limit on the free market to prevent someone from selling himself into slavery. In a strictly free market, if someone thought it was worth what he was to be paid, he could agree that he would be a slave forevermore. Most societies have decided that such a contract is wrong and have prohibited them. That is, they have made the market less "free."

Limiting the market to protect artist's rights doesn't require a fundamental change in human nature or a revolutionary change in the way the world is (although if it were implemented throughout society for all people it would amount to a revolution). Those who must have every principle be radical and for whom the world is black and white say that socialism is impossible and therefor we should not try to protect such interests. I say that we are here while we are alive and we must do the best we can. If a glorious concept, such as communism, turns out to be a flop (for whatever reason), that's no reason to say that human's are just the way they are and so we must allow the worst humans to have their way in everything.

When we speak of free marke or of an abstract entity like "Society", we are not taking into our consideration the many individualities that concur to create those abstractions. If the free market is exploiting categories, is simply because our society does not feel respect for certain categories, and that's the result of an evolution that has still many steps to ascend... See above. What I am saying is that when you say that "society doesn't feel respect for certain categories" that is another way of saying that the free market values those categories by how much money can be made from them. Perhaps the free market will just go away once society "ascends." Very mystical. Humans are alive on Earth right now. Most of them are being exploited. They are being exploited by real living humans who are very happy to have everyone think that the problem is that society hasn't "ascended."

If it will ever ascend them... The market is so wide, today, and the meaning of being rich is becoming such an incredible parameter, that I feel that twenty, thirty years, forty years ago, when I was a kid, it was better, it was safer. Or maybe, I just can't cope with the new generations. Maybe I simply do not understand what's going on... I think many feel a bit helpless now that there is no major player in the world even ostensibly opposed to the market (or whatever you want to call it). Few people think of it in these terms but I think that this is at least a major part of it. The actually existing "communist" block was a real fiasco (who knows if the alternative would have been even worse) but it had one great value. It opposed the unlimited power of world capital. As a result, capital restrained itself and tried to convince the people of the world that they didn't need a different system. If you could oppose one bad system to the other, you could have a little free space between them. Now that there is only one world system, it doesn't feel the need to restrain itself. Thus the triumphalism. I think that's one reason why things seem so much more savage now.

Recording companies exploit some artists, of course. As far as I

know, notwithstanding what Mr. Nessa recently wrote (I supposed he is the Chuck Nessa of Nessa records: excellent stuff, I remember), I do not have positive news about fees paid by Impulse! or other American or multinational companies: European indies paid, in the Seventies and in the Eighties, much more than any American company. But then, was it a civilized way of doing, or just a commercial evaluation concerning the European market, where concurrency is different, and where some American musicians are definitely (and sometimes rightly, notwithstanding all the ridiculously nationalistic stuff that is currently going on, especially in Italy and in France) more appreciated than some local ones...? This is a complicated subject. There are so many different types of contracts that are used. A person being cheated under a good contract can end up with so much more than someone who is being treated perfectly according to the letter of a bad one. With small labels, everything depends on the person running it. If that person gets sick or dies, everything changes. If the company is sold, everything changes. If the person has the best will in the world but is a bad businessman or operates in a field of music that is not popular, he may be unable to pay musicians. And, of course, there are some who are actually dishonest and are trying to cheat people.

In Europe, for example, mechanical royalties are paid automatically to a quasi-governmental agency when the records are manufactured. This means that artists very seldom fail to receive them. In the US, the company pays them when it accounts. In effect, this means that many small companies never pay them. You may wish to call the European method "civilized." I kind of like that. It is certainly better for the artist. Don't forget, though, that that means that the small label must have that much more money on hand before it can release a record. For smaller labels, that means that some records couldn't be released at all. How can you resolve the contradiction? A free market believer would say that the US way is better since it would allow more records to be released & more music would be available. But that is not the only answer. You could also have a system where distributors paid Harry Fox (in the US, labels are supposed to pay Harry Fox in most cases but it is not automatic) or the equivalent government agency or collection society separately as they pay the labels. Or you could have some other system that would allow some type of system similar to tax withholding to ensure payment. It would make business slightly more complicated but would result a much more equitable system. You could even set up a similar system for artist royalties, which does not currently exist anywhere, as far as I know. These are not utopian daydreams. They can be implemented, just as similar schemes are already in practice. Perhaps that is how society "advances."

In general, major labels live up to their contracts. The reason artists don't get paid by majors is that recording costs & other costs are so high that they eat up the royalties. The break-even point for major label releases is very high (With most record contracts, major & indie, all recording costs are recouped out of artists royalties so the label will actually make money on records that do not recoup. Companies use some of the excess to finance manufacturing the records & promotion & overhead but it is true that some records that never recoup still make a little money for the company.). With some artists, the contracts are "loan-outs" where the actual contract is between the company and a "producer" who is to pay the artist. With those, it all depends on the "producer." Generally, majors pay lower rates than indies. The advantage is that there is the chance of much greater distribution (NOT the guarantee) and that the company will not go out of business. Majors usually cut out records very quickly unless they are hits. An indie is more likely to keep things in print because its overhead is lower. The bottom line is that most releases by majors lose money for the major & don't generate royalties (except mechanicals, which is why they are so important - they are paid from record 1 & not subject to recoupment of recording costs). They make their money from big hits.

It's important to remember that record labels are businesses. Records don't go out of print (usually) because an evil executive decides that Sun Ra fans must suffer. It is because he doesn't believe that he can make money on them anymore. I don't wish to defend all such decisions but given a choice between keeping some music in print and losing some of his own money, I can understand them. Could there be a system to keep things in print? If everything is stored digitally & you can download it for a fee, that might be the way but it is a way off & I have my doubts about how labels (and artists) would get paid fairly from such a system.

A wackier idea would be to have a compulsory license for master recordings. You can get a license to record your version of any song, regardless of what the publisher wants. If you could do something similar with masters, nothing would be out of print for long. It would basically be legalizing bootlegging in return for the payment of royalties. This is probably an unworkable scheme but it amuses me to think about it sometimes.

Sat, 1998-11-21 01:25
Last seen: 10 years 10 months ago
Joined: 2010-12-22 23:45

Re: "Black Myth/Out In Space"? - Legal Status of Ownership

To amphinom:

Well, I certainly agree with all you said: just give me some time (at least one day...!) to answer to your letter, athough I may add just some further comments, since, as I mentioned before, I totally agree with what you wrote.

Just one thing: we are talking about protecting artists, which may arise the danger of making them a protected species. As you said: what about those who are not artists and are not protected? Should they be considered less socially valuable? Of course not. The whole stuff seems to be a Gordian knot.

Your letter has really many, many points... We should all discuss about what you wrote.

Gianni Morelenbaum Gualberto