Music Educator here. I'm thinking about this piece in relation to your previous thoughts about the lack of a counter culture. As you mentioned, educators are in part responsible for maintaining, reinterpreting, and expanding the "canon" for future generations.
Maybe the overt litigiousness of big labels should inspire us educators to use more musical examples from lesser known artists that need exposure anyway?
I can already see the youtube title: "The Most Epic Odd Time Riffs from Bands You've Never Heard Of."
In one sense the current broken system is really annoying for YouTube. They have to deal with all these complaints from both sides, they have to make all these takedown and demonetization decisions and they don't even have enough staff to have a human take a look at each one.
But in another sense it's great for YouTube, because following all these rules is such a pain, it makes it hard for a startup competitor to make a video sharing site.
So I wouldn't expect the corporate titans to lobby for a simplified system any time soon. They benefit from the complexity even if it seems like the rules make them do a lot of extra work.
I got copyright infringement notices for several (unlisted) student videos I uploaded to YouTube, which I did so that the students could comment on their work. The first video included an ambient drone, some record label identified it as a Mariachi Band. The second video did not have any (!) sound on it, just visuals. The silence was identified as a pop song. I guess they're trying as much as they can, and see what sticks. Hans
What an excellent article. I once took a college course on the music of the Beatles and the professor never played one clip of a Beatles song. I thought it was ridiculous but knew why he did what he did.
Why can't an arrangement be worked out for educational institutions like the one that venues have with ASCAP, BMI, etc. ? It is absurd that a college professor can't use a recording of the Beatles to teach music but a lousy tribute band can play their songs all night at a dive bar.
This reminds me of the political bureaucrats and activists (of whatever political party) who only have a specific job if a specific problem remains unsolved. In fact, there’s a financial incentive to exaggerate the extent of the problem or even to (sub)consciously make the problem worse.
Long-term implications could be profound as 20th century songs and compositions are 'lost' to the next generation of music listeners, and to older listeners who don't want to support this kind of century-long lockdown publishing policy. It's interesting that intellectual property rights were established 1) to promote creative work and remuneration, and 2) to enrich the public marketplace of ideas. In music, where the glut of music and access has removed the scarcity=value strategy, draconian tactics are being used to drain the last bit of life (and revenue) out of great music by disincentivizing the teaching and promotion of it.
Record companies are the evil empire. But I didn’t know this extended to an educator using 15 seconds of whatever or a YouTube video! Damn. My dear friend Gary Bartz once said in an interview, “I would rather deal with the Mafia than with a record company. This is a very instructive (and horrifying) essay. Thanks, Ted.
Honestly I don’t see a lot of options for the arts.
The only thing I can think of is for us - creators - to build a parallel copyright/distribution network - decentralized/secured/fair - that would challenge the current system until the old one breaks.
Similar to a Bitcoin/crypto/PoW technology (I think there are other technologies that may suit the bill better but I think the analogy is good enough)
When I talk to licensing agencies which seem to drive the monetarization of creative content on films / tv - they point to the fact that the hardest obstacle in this system is the liability around original content - meaning protection from being sued by a major artist.
From their point of view - right now the system is working because they can place huge amount of content very fast -(directors and producers usually chose the music in matters of days) - for a very long period of time - generate fast income - and pay insurances to cover potential lawsuits - which individuals can’t afford. They also benefit from the fact that creators need money and are willing to give up some ownership for residuals or short time gains - which allows the agency to grow a catalog that appreciate overtime and can be fruitful for decades.
Short of building a parallel competitive network - I don’t see any viable alternative. The best for creators in the meantime is to keep 100% of their work - make people happy around them - earn income in live performance and expect very little of $ for their original work in the short term.
I’m not sure if those ideas are helpful to the conversation but maybe it will :)
Thanks for a very interesting article and for opening up for comments.
YouTube should have a licensing tier for people like Rick Beato or the absolutely wonderful Yesterday's Papers channel. It could be similar to the licensed libraries on TikTok and Instagram Reels, which limits people applying music to their video creations to 15 seconds, but perhaps a little more thoughtful to allow for multiple different clips in a video.
The labels and publishers would largely jump on that because it's another free promotional tool that earns some scratch. Look what happened with Fleetwood Mac's Dreams after that guy rode a skateboard while drinking cranberry juice on TikTok - that made some bank. It also ends the ContentID nonsense and demonetization and "Fair Use" headaches.
How to pay for it? Only allow monetized creators above 1000 followers and 4000 monthly viewing hours and then take 30% of the video's ad revenue? Maybe require Beato to pay a yearly licensing fee? I don't know. That's for the lawyers to work out.
No matter how it's hashed out, everybody could go home a limo. Problems are solved. Creativity and education is allowed to flourish. If that's not progressive, I don't know what is.
Ultimately it gives them power and no one who wants to hold onto power will ever relinquish it. They can pay off Congress pretty easily as we've seen with so many other industries and it's always going to be cheaper to do so than the alternative since in any other case, they forfeit the power.
I find it oddly coincidental that the original owners and representatives of music and musicians (as it became a going financial concern in the early 20th century) were, more often than not, mobsters who were out for every penny they could gather –– and the current crop of music "bosses" aren't that much different.
It it's not plain madness, it's worse: an exercise in Mutually Assured Destruction for: A. musicians, ,who could profit from learning the standards that comprise the history of jazz improvisation, and B. the increasingly clueless listening public, for whom the revelation that Tad Dameron's "Hot House" is based on Cole Porter's "What Is This Thing Called Love" sounds like a nonsensical line from an Ella scat solo. As the curtain comes down on sites like the crowd-sourced Wikifonia.com and Youtube.com increasingly restricts publication of songs to approved versions, the copyright police are ultimately the victims of their own obsessive greed. Imagine their surprise when the properties to which they've staked their claim are spurned as uninhabitable wasteland by all potential renters.
And in the meantime the NHL/Disney/ESPN uses The Times They Are a-Changin' to promote its Stanley Cup coverage. Capitalism in the 21st century is as warped as a 9-cent 45 on a bargain shelf, and litigation and lobbying are its tools. And you're right: the big record companies are in fact acting against their own interests, but neither common sense nor community service plays a role.
Jun 27, 2022·edited Jun 27, 2022Liked by Ted Gioia
Ted, nicely done, as always.
You might note, however, that fair use, in fact, is a matter of statute these days (codified by the US Congress as part of the Copyright Act; an attempt, in part, to codify several centuries of judge-made doctrine). Congress chose not to draw hard lines, but instead to provide guidance to the judges that must apply this defense to a particular set of facts. There was a tremendous amount of jockeying among the stakeholders (copyright owners, educators, those who would hope to create derivative works without paying license fees) as the legislation was drafted, and an attempt was made to balance the various interests. I can imagine the havoc that would result from application of a bright-line doctrine to individual artworks (like photos or paintings) that don't lend themselves to the use of snippets as fair use was intended to permitted historically. The alternative would be to try to draft bright-line legislation that accounts individually for each type of creative expression extant today and that may arise in the future -- a hopeless exercise, I'm afraid.
I note that a whole cottage industry has grown up for rights holders to hire contingency lawyers and non-lawyers to assert copyright claims against website owners who pull media off the internet for use in their websites, and horrendous amounts of money is changing hands (some would say extorted) from small outfits to these players and their clients, much of which is coming from not-for-profit, particularly arts organizations who fall into the trap that if it's easy to copy, it must be okay to do so. Usually all it takes is a form letter from one of these outfits to land a payment of 100s or 1000s of dollars for the retrospective use of some not very interesting photo or video clip. I would love to see some standard arise akin to what we see in trade secret law that puts some onus on the rights holder to make it harder to copy their works (a fairly trivial matter to do these days), and perhaps a requirement that the rights holder place a notice with the work that it's not free for the taking (something done away with in the U.S. for works created in the last few decades).
That said (vented), I'lI close by noting that I advise clients (solely in the not-for-profit sector on a pro bono basis these days) on these issues, and agree it's a bit of a morass, but there are real interests (beyond those held by increasingly irrelevant record labels) that require this balancing in the end.
Great article again Ted. How could we all band together and stand behind those that are trying to make a difference, without the major labels, big tech and VCs involved. There are a lot of people trying to make a difference but the artists and creators are often hesitant to take a risk and support them. How can we break through the cycle?
Jun 27, 2022·edited Jun 27, 2022Liked by Ted Gioia
This is going to get worse rather than better. The powers that be are arm-twisting tech companies to introduced hardware and firmware that will one day limit the software we run on our computers to approved software only. That will require 'kyc' {know your customer} registration for anything that was previously anonymous, so no more pirate software, no more anonymous crypto etc. The powers that be will have carte-blance to charge whatever they like for our patronage and the banks able to take that money whether we like it or not. We're entering an age of the end of personal freedom and nobody is even talking about it.
Music Educator here. I'm thinking about this piece in relation to your previous thoughts about the lack of a counter culture. As you mentioned, educators are in part responsible for maintaining, reinterpreting, and expanding the "canon" for future generations.
Maybe the overt litigiousness of big labels should inspire us educators to use more musical examples from lesser known artists that need exposure anyway?
I can already see the youtube title: "The Most Epic Odd Time Riffs from Bands You've Never Heard Of."
In one sense the current broken system is really annoying for YouTube. They have to deal with all these complaints from both sides, they have to make all these takedown and demonetization decisions and they don't even have enough staff to have a human take a look at each one.
But in another sense it's great for YouTube, because following all these rules is such a pain, it makes it hard for a startup competitor to make a video sharing site.
So I wouldn't expect the corporate titans to lobby for a simplified system any time soon. They benefit from the complexity even if it seems like the rules make them do a lot of extra work.
I got copyright infringement notices for several (unlisted) student videos I uploaded to YouTube, which I did so that the students could comment on their work. The first video included an ambient drone, some record label identified it as a Mariachi Band. The second video did not have any (!) sound on it, just visuals. The silence was identified as a pop song. I guess they're trying as much as they can, and see what sticks. Hans
What an excellent article. I once took a college course on the music of the Beatles and the professor never played one clip of a Beatles song. I thought it was ridiculous but knew why he did what he did.
Why can't an arrangement be worked out for educational institutions like the one that venues have with ASCAP, BMI, etc. ? It is absurd that a college professor can't use a recording of the Beatles to teach music but a lousy tribute band can play their songs all night at a dive bar.
This reminds me of the political bureaucrats and activists (of whatever political party) who only have a specific job if a specific problem remains unsolved. In fact, there’s a financial incentive to exaggerate the extent of the problem or even to (sub)consciously make the problem worse.
Long-term implications could be profound as 20th century songs and compositions are 'lost' to the next generation of music listeners, and to older listeners who don't want to support this kind of century-long lockdown publishing policy. It's interesting that intellectual property rights were established 1) to promote creative work and remuneration, and 2) to enrich the public marketplace of ideas. In music, where the glut of music and access has removed the scarcity=value strategy, draconian tactics are being used to drain the last bit of life (and revenue) out of great music by disincentivizing the teaching and promotion of it.
Record companies are the evil empire. But I didn’t know this extended to an educator using 15 seconds of whatever or a YouTube video! Damn. My dear friend Gary Bartz once said in an interview, “I would rather deal with the Mafia than with a record company. This is a very instructive (and horrifying) essay. Thanks, Ted.
Honestly I don’t see a lot of options for the arts.
The only thing I can think of is for us - creators - to build a parallel copyright/distribution network - decentralized/secured/fair - that would challenge the current system until the old one breaks.
Similar to a Bitcoin/crypto/PoW technology (I think there are other technologies that may suit the bill better but I think the analogy is good enough)
When I talk to licensing agencies which seem to drive the monetarization of creative content on films / tv - they point to the fact that the hardest obstacle in this system is the liability around original content - meaning protection from being sued by a major artist.
From their point of view - right now the system is working because they can place huge amount of content very fast -(directors and producers usually chose the music in matters of days) - for a very long period of time - generate fast income - and pay insurances to cover potential lawsuits - which individuals can’t afford. They also benefit from the fact that creators need money and are willing to give up some ownership for residuals or short time gains - which allows the agency to grow a catalog that appreciate overtime and can be fruitful for decades.
Short of building a parallel competitive network - I don’t see any viable alternative. The best for creators in the meantime is to keep 100% of their work - make people happy around them - earn income in live performance and expect very little of $ for their original work in the short term.
I’m not sure if those ideas are helpful to the conversation but maybe it will :)
Thanks for a very interesting article and for opening up for comments.
YouTube should have a licensing tier for people like Rick Beato or the absolutely wonderful Yesterday's Papers channel. It could be similar to the licensed libraries on TikTok and Instagram Reels, which limits people applying music to their video creations to 15 seconds, but perhaps a little more thoughtful to allow for multiple different clips in a video.
The labels and publishers would largely jump on that because it's another free promotional tool that earns some scratch. Look what happened with Fleetwood Mac's Dreams after that guy rode a skateboard while drinking cranberry juice on TikTok - that made some bank. It also ends the ContentID nonsense and demonetization and "Fair Use" headaches.
How to pay for it? Only allow monetized creators above 1000 followers and 4000 monthly viewing hours and then take 30% of the video's ad revenue? Maybe require Beato to pay a yearly licensing fee? I don't know. That's for the lawyers to work out.
No matter how it's hashed out, everybody could go home a limo. Problems are solved. Creativity and education is allowed to flourish. If that's not progressive, I don't know what is.
Ultimately it gives them power and no one who wants to hold onto power will ever relinquish it. They can pay off Congress pretty easily as we've seen with so many other industries and it's always going to be cheaper to do so than the alternative since in any other case, they forfeit the power.
I find it oddly coincidental that the original owners and representatives of music and musicians (as it became a going financial concern in the early 20th century) were, more often than not, mobsters who were out for every penny they could gather –– and the current crop of music "bosses" aren't that much different.
It it's not plain madness, it's worse: an exercise in Mutually Assured Destruction for: A. musicians, ,who could profit from learning the standards that comprise the history of jazz improvisation, and B. the increasingly clueless listening public, for whom the revelation that Tad Dameron's "Hot House" is based on Cole Porter's "What Is This Thing Called Love" sounds like a nonsensical line from an Ella scat solo. As the curtain comes down on sites like the crowd-sourced Wikifonia.com and Youtube.com increasingly restricts publication of songs to approved versions, the copyright police are ultimately the victims of their own obsessive greed. Imagine their surprise when the properties to which they've staked their claim are spurned as uninhabitable wasteland by all potential renters.
And in the meantime the NHL/Disney/ESPN uses The Times They Are a-Changin' to promote its Stanley Cup coverage. Capitalism in the 21st century is as warped as a 9-cent 45 on a bargain shelf, and litigation and lobbying are its tools. And you're right: the big record companies are in fact acting against their own interests, but neither common sense nor community service plays a role.
Ted, nicely done, as always.
You might note, however, that fair use, in fact, is a matter of statute these days (codified by the US Congress as part of the Copyright Act; an attempt, in part, to codify several centuries of judge-made doctrine). Congress chose not to draw hard lines, but instead to provide guidance to the judges that must apply this defense to a particular set of facts. There was a tremendous amount of jockeying among the stakeholders (copyright owners, educators, those who would hope to create derivative works without paying license fees) as the legislation was drafted, and an attempt was made to balance the various interests. I can imagine the havoc that would result from application of a bright-line doctrine to individual artworks (like photos or paintings) that don't lend themselves to the use of snippets as fair use was intended to permitted historically. The alternative would be to try to draft bright-line legislation that accounts individually for each type of creative expression extant today and that may arise in the future -- a hopeless exercise, I'm afraid.
I note that a whole cottage industry has grown up for rights holders to hire contingency lawyers and non-lawyers to assert copyright claims against website owners who pull media off the internet for use in their websites, and horrendous amounts of money is changing hands (some would say extorted) from small outfits to these players and their clients, much of which is coming from not-for-profit, particularly arts organizations who fall into the trap that if it's easy to copy, it must be okay to do so. Usually all it takes is a form letter from one of these outfits to land a payment of 100s or 1000s of dollars for the retrospective use of some not very interesting photo or video clip. I would love to see some standard arise akin to what we see in trade secret law that puts some onus on the rights holder to make it harder to copy their works (a fairly trivial matter to do these days), and perhaps a requirement that the rights holder place a notice with the work that it's not free for the taking (something done away with in the U.S. for works created in the last few decades).
That said (vented), I'lI close by noting that I advise clients (solely in the not-for-profit sector on a pro bono basis these days) on these issues, and agree it's a bit of a morass, but there are real interests (beyond those held by increasingly irrelevant record labels) that require this balancing in the end.
Great article again Ted. How could we all band together and stand behind those that are trying to make a difference, without the major labels, big tech and VCs involved. There are a lot of people trying to make a difference but the artists and creators are often hesitant to take a risk and support them. How can we break through the cycle?
This is going to get worse rather than better. The powers that be are arm-twisting tech companies to introduced hardware and firmware that will one day limit the software we run on our computers to approved software only. That will require 'kyc' {know your customer} registration for anything that was previously anonymous, so no more pirate software, no more anonymous crypto etc. The powers that be will have carte-blance to charge whatever they like for our patronage and the banks able to take that money whether we like it or not. We're entering an age of the end of personal freedom and nobody is even talking about it.