Often in this space, I talk about the economics of music as though they don’t matter. This is, largely, because in the abstract, general sense, they don’t. But in the last couple of weeks, a handful of things have happened that made it apparent that, despite my evangelical stance that the world in which the record-selling industry is a much, much smaller part of the music business, and that availability to everyone everywhere contingent only upon effort (the necessary amount of which grows smaller with every passing year), there are some real, good-things-affecting side effects that are occasionally somewhat difficult.
The big news, even to people that don’t look at the music business with anything but the most glancing eye, was the judgment to Pharrell and Robin Thicke that “Blurred Lines” sufficiently ripped off Marvin Gaye’s “Got to Give it Up”1 that it should account for several million dollars of revenue for the family of Marvin Gaye. This is because copyright law is a total cock-up.
This is about the money involved in music, not about the ethical problems of copyright, but, in in case this is your first hearing about it, come down to this: copyright exists so that someone has a chance to capitalize, financially, on an idea. The original conceit being that it took you time and effort to come up with the idea – time and effort that, given that the idea only exists at the end of the process, you were unlikely to be directly compensated for – so you should be the one to have the opportunity to make money on it before anyone else does. Under its original, sustainable position, it was meant to have a relatively-short statutory period, at the end of which the idea became a part of the public stock. The story of how it came to be a multi-generational, heavily-policed guardianship is long and, frankly, not terribly pertinent to the thoughts contained here2, except insofar as to say: it no longer makes any rational sense, but most people don’t think about it, so if some of what follows seems weirdly anti-family, rest assured that I am not, I am just opposed to the nature of intellectual property as it exists right now.
The upshot of all of this is that, as I’ve said, there used to be a lot more money in the sale of records. People had to go and buy an object, and that object was only freely-distributable as copies of itself, which, due to the limitations of technology, were somewhat-degraded. Now that there is no money in the sale of records, due to their being much less centralized sale of records and the ability to disperse albums (via both digital copying and the much-more-efficient streaming) basically means that a copy doesn’t even need to be sourced, let alone actually procured. The courts, long lobbied by a flush and cash-friendly music industry, have all of the entrenched pathways to side with the music industry and are generally-disposed to side with the former big-record-people.
In the press, this was presented as two thoughtless pop stars3 stealing from the family/legacy of one of American music’s greatest heroes. After all, given the choice between assigning yourself to Team Robin Thicke or Team Marvin Gaye, who could possibly choose Robin Thicke?
The idea, that was presented (although, it must be noted, largely not agreed with) was that we cannot allow people to steal intangible elements of music from older music. This case, while probably not directly planned by the legal arm of the old-record-dudes was something of a boon: what other opportunity could there be to establish a citable precedent that pitted a beloved institution against a lame-o skeezebag (Robin Thicke, not Pharrell.)? So now they have their precedent: the ability to affirm the copyright of je ne sais quoi.
Historically, the record-selling industry response to a downturn in record sales has been to change a format – this enables them to make new money without having to make a new product. In the current environment, that’s functionally impossible – the problem is that digital music, while it does have a format, doesn’t have a controllable inventory, and therefore there’s no real way to force them to buy the same songs again4. This, then, is a legally-sustained way to generate income via lawsuit (or forced settlement, since the precedent here is so clearly and unilaterally anti-artist and pro-business) for old material without needing to sell anything. You just need to find someone willing to complain about a similarity, and a lawyer to back them. This is a genuinely frightening piece of the law, and the only thing we can hope for is that the appeal works, because otherwise a lot of people that would manage to succeed without playing the game exactly the right way are going to find themselves in an extremely precarious position.
At the moment, it’s Marvin Gaye’s family that stands to gain. But the use of that as a cover for the machinations that will lead to the end result of the decision are, at best, pernicious. There are few bodies of humans in the world that have proven themselves, repeatedly and over time, to be less trustworthy than the people that govern the record-selling industry. Even people that don’t spend any time thinking about it know that stories abound of labels not paying what they should, of making even the “should” part of payment an anti-artist joke, and of generally dealing in the most underhanded and financially-disastrous way possible when it comes to the people that are, at least in theory, generating the content that they need to sell to continue to do business. So how long is it going to be before such a judgment is granted to an old-guard dude that is then, for whatever reason available, possible, or trumped-up, intercepted by whatever label figures out how to do it first?
Evidence for the fact that it’s only the formerly-massive corporate system that does this kind of scrambling comes, ironically, from the closure of indie-focused (and Pitchfork-affiliated) retailer Insound. That seems paradoxical, but it’s worth pointing out that this closure of a music retailing service you never used happened in 2015, years after the mass-closure of physical record stores. Insound never had what could be considered a commanding share of the music-retail market (even the online kind), and it still took this long to fold up. This is probably helped somewhat by it being one of the links that features in every Pitchfork review, but it also says that there is still enough of a market to keep multiple sources afloat. Insound, for the unfamiliar, focused on selling actual physical media as of their closure. They were a download platform for awhile5, but focused on other areas when the download game became more difficult to compete in. They were sort-of nebulously extant: they didn’t have the self-publishing aspect of CDBaby, which acts as much as a fulfillment house as it does as a store,and they weren’t as self-directed as Bandcamp.
It’s probably Bandcamp that created the holes in Insound’s market share that made it necessary to fold up shop. And, even if it wasn’t, there’s nothing that Insound offered that isn’t covered by the redoubtable Bandcamp – an ability to manage your social presence, band info, and shop in one dead-easy tool is a real game-changer, and Insound lasted a few years into Bandcamp’s reign, which speaks of it being more successful by channelling small-time records to the widest possible audience, rather than by trying to force something larger-scale onto an audience that doesn’t really exist to serve it. Another part of the record-selling industry existed to serve a need, something more direct came along and made the first thing no longer necessary, and now we have a better connection, a better source, and an easier-to-use tool to communicate personally, physically and economically with bands.
This is, because of Insound’s relative size and lack of vituperative corporate bitterness, a useful object lesson in the way things could go if it weren’t for the amount of noise that the corporately-motivated wing of the record-selling industry is capable of generating, which is what its relatively-minor passing is doing here. A retailer whose business model started out useful – even laudable – was replaced by a much better model. The people who know to look for the kind of small-time records Insound was largely in the business of providing are probably all savvy enough to find Bandcamp, where you can order records, or CDs, or downloads6. And there it goes, not suing anybody or crying out loud in the press, just folding up their small business like so many have had to as things change. I’m not saying I’m happy they’re out of a job (I’m never happy when anyone is out of a job, let alone a bunch of people who wanted a thing and then went out to try to make that thing happen), I’m just saying that, since it was apparent that there was no longer a place in the market for them, they blamed neither the artists nor the fans for its demise. It’s a shame that it happened, but it’s also pretty hard to get misty-eyed over an online retailer.
It is, however, much easier to get misty-eyed over the retirement of a major figure in my record collection, Rob Crow. Rob spent twenty years what would pass for the trenches if rock music were actually a war. At least half a dozen of the bands he was in made fantastic records7, and chief among them were ONAT all-time favorites Pinback. He ran his career in what is, basically, an exemplary and, it must be said, non-exploitative fashion. He had no particular major-label affiliations, he developed his bands’ fanbases by playing for them, and by making them aware of his records, mostly. The mostly comes because he embraced television, appearing on The O.C., and allowing a couple of his songs to do the same. At the time, this seemed silly8, but given that it never really re-directed his output, it seems pretty harmless. Thirsty, but harmless. He may have tried to capitalize on what his band was, but he never tried to make his band something else so he could capitalize on it. And now he’s retiring, for lifestyle reasons mainly, and while it will be sad if it sticks and there’s never a new Pinback album, it sure is hard to begrudge somebody for trying real hard and admitting that the engine is out of gas.
By only sticking to what he was able to do and what came naturally, Rob Crow built a career of success by just about any measure. They actually succeeded beyond most measures – their OC affiliation led to a bunch of people that show up to their shows to hear “Fortress,” but that also never really managed to derail either their music or their presentation thereof. The connection here is: this is what people fear when they talk about how terrible the world would be if everyone made music by their own means. Twenty years of pretty-good records, with a couple of bona-fide great ones in the mix, followed by a dignified, planned end.
That’s what happens when you build your output on a for-real audience and don’t try to shortcut it by throwing money at it. That is why it’s hard to decry the loss of the ability of larger, non-music-affiliated entities to throw money at things. Good fucking riddance.
Now we just have to get them to stop suing people for intangible nonsense. But that’ll come, as well.
1 the details of the reasoning for this judgment were somewhat hilarious, as the case involved a bunch of untrained people scrutinizing sheet music, and ending with the judge agreeing that, while the song did not take chord progressions (which are uncopyrightable) or melodies (which, while copyrightable, are the thing that’s easiest to verify with sheet music), but rather the “feel” of the song, thus implying that Marvin Gaye officially holds a copyright on vibe.
2 it has a lot to do with Disney, although Mark Twain figures into it more prominently than you might think.
3 one of whom, Robin Thicke, is generally both credited with the song have an unsavory subtext and is, generally, poorly-considered, which probably has some effect on the public reaction, but it’s sort-of beside the point. Let it stand here: I do not like “Blurred Lines,” I am annoyed by Robin Thicke, and I am less interested in defending his music than in protesting this particular point.
4 the hard maximum on annoyance in that regard is the need to purchase a conversion program, of the sort that proliferated while iTunes was selling only copy-protected music.
5 they were noteworthy for awhile for being one of the first DRM-free download stores, but this still isn’t a piece about our cockamamie intellectual property laws.
6 you can also order cassette tapes. I’m not usually a dude who complains about cool-kid band trends, but the cassette thing actually affected me, as a number of bands whose output I liked were making cassette-only releases, which meant that if I wanted to hear the music, I had to buy the stupid format. This seems to be dying down except among certain crowds (none of which are crowds I’m particularly involved or interested in), so I’m happy to see it go.
7 another half dozen made pretty-good records. He was in a lot of bands.
8 although The O.C., having presaged a vogue for the rich-teen-soap-opera that goes on to this day (albeit with it now more likely to have monsters in it than, say, Tate Donovan), has been rehabilitated critically somewhat, so it’s no longer quite as dumb-seeming as it was at the time.