Wednesday 23 July 2014

Taylor Swift is incredible

Richard Tomasi
at the Lago di Caldonazzo ...
A few days ago the Wall Street Journal (WSJ) published an imaginative piece by American singer-songwriter Taylor Swift bearing the charming title For Taylor Swift, the future of music is a love story, in which she discussed the future of music and music industry. 1709 Blog friend Richard Tomasi (@FathersNotCool) analysed it for us. As his Twitter handle suggests, Richard is a fun Italo-Irish living in London. He has now cemented a passion for copyright with a PGDip in UK, US & EU Copyright Law, having previously achieved a BEng in Telecommunications and an MA in Mass Communications. A professional career in IP Law is the path he now wants to take, having just completed the GDL.

Here's what Richard writes:

Taylor Swift is incredible. There, I said it. No, not that the 24-year-old country singer is so extraordinary as to seem impossible, but in the sense that she is not credible or, if you prefer, hard to believe. 

I am not, however, talking about her music. 

I do not know her music. 

I am sure I have probably heard some of her tunes, by chance, on the radio whilst waiting in a barber shop or whilst watching TV and it popping up in an advert. And I am sure it was delightful and creative. 

I can definitely say I know what she looks like, but that is because she dated one of the boys from One Direction. 

... and Taylor Swift
at LA airport
(note the mutual passion
for check shirts)
And Twitter was not happy when they broke up. 

But she is also a known and renowned cantautrice, having won many an award from an industry that likes giving out awards. 

An industry that she sees as just coming alive, according to the column she wrote for the Wall Street Journal earlier this month. The article was to be, it seems, yet another fuse, ignited by her, of a stick of dynamite labelled ‘Internet’. If this was the WSJ’s intention, well, kudos! The internet clambered to shout and scream its opinion. And sifting through the white noise, there are some very valid points made

But this was to be expected, though, when a successful performer – in music industry terms – decides to predict the future of her industry. She becomes somewhat of an easy target. Solely because the industry goes way deeper than the faces we see on the various platforms that flood our daily lives.

 “Where will the music industry be in 20, 30, 50 years?” she opens wistfully. A question which she does not particularly answer, but not because it is quasi-impossible to answer (just think, 50 years ago the Phillips tape cassette recorder – the little device that would release unprecedented piracy – was only one year old) but she attempted to do so without mentioning the word ‘copyright’ once. Not once in 1,174 words. 

As I said, the girl is incredible.

Copyright is the law that governs who can commercially exploit cultural creations and to what extent. Musical creations are one of the subsets in the category. To quickly understand how much copyright, the foundations of the music industry, has evolved in the last 53 years (that way we coincide nicely with the Rome Convention yet stay within Taylor’s predictive order of magnitude) one need only know that when Thin Lizzy signed to Decca in 1970 their contract was three and half pages long whilst the Gorillaz had to plough through over 100 pages when signing to EMI in 2003. 

So, you see, not to consider how copyright may evolve from now to 2064 when considering the future of the music industry is a bit of an oversight. An oversight made by someone who goes on to say that “Music is art, and art is important and rare. Important, rare things are valuable. Valuable things should be paid for.” 

This, in itself, is a massive statement, something I may ask the next song-writing busker I see in London about. 

The 80s are over
(thank goodness)
Yet it does not cross her mind to question or explain how the scarcity of her intangible product is created? 

The music industry, as we know it, will be fine as long as the copyright owners, usually the record labels, find ways to exploit their ‘property’. That is, it must be prepared to change and evolve. We must stop comparing the now to the 1970s/80s. Copyright and methods of distribution have changed quite significantly since. Historically, this has been done through lobbying for a more owner-friendly legal approach, at the expense of the consumer, instead of actually coming up with new viable business models. For example, the very robust anti-circumvention elements that popped up in US DMCA and the parallel EU InfoSoc Directive seem to have come about via the creative industries’ – or as I like to call them, entertainment industries’ – lobbying. Was it pressure from the very same lobbyists that led to the US Congress passing the Sonny Bono Act? Napster, well, we know what happened there, hashtag Metallica.

The industry will survive. It has always come through significant technological changes somewhat unscathed. It does so by finding new means to exploit its property, property that was created via copyright. That is, it does eventually find new methods of exploitation but only after it realises that it is probably best to adjust to the new ways of distribution/consumption that have evolved. The day of album sales as the primary source of revenue, and as a financial indicator to how well a performer is faring, is now well in its twilight zone. It is naive to write about the health of the music industry by simply looking at the decline in album sales. The diagnosis will inevitably be terminal

The big artists are now brands, their image managed and merchandising looked after by a team of IP lawyers. New streams of revenue have developed and are growing as I write, from the concept of crowd-funding where music is treated like a commissioned work – a kind of first-you-pay-then-I-will-create basis – to the idea of ‘fairtrade music’. It shows that perhaps some of the people behind the exploitation of copyright-protected music are as creative, if not more in some cases, as the actual songwriters. 

This business creativity, financially successful or not, is nothing new, from David Bowie issuing bonds on his future income in 1997 to Radiohead’s pay-what-you-want experiment, via the internet, with In Rainbows ten years later (the band actually made about $0.15 more per album than it would have had through a conventional label release). 

Yet using the internet to disperse your songs had been done before then by the Grateful Dead, Beastie Boys and Bowie. Radiohead, however, gave the decision on how much their work was worth to the listener – successful this time, because of their superstar status. 

It's all about the balance ..
But how do you keep it?
But this can’t last forever as copyright must also endeavour to keep a balance between the author and a public that has quicker and ‘illegal’ ways to access the author’s works. 

The industry depends on copyright, and therefore the real question Taylor Swift should have been posing is: will copyright survive? 

I believe that it can only do so if it retains its flexibility, via its exceptions. The real issue, I believe, is not if the industry will survive but the music that can be exploited, and the fact that some of that music is actually protected by law and for such long terms – "The forms of hit songs are so strictly standardized, down to the number of beats and the duration, that no specific form appears in any particular piece", wrote Adorno in 1938. 

Perhaps it is time to better divide the different categories that can enjoy the protection of copyright and perhaps develop different tests of originality. That is, develop a clearly defined off-shoot set of rights just for musical creations, under the copyright tree. As it stands now, as music is art and art is rare and valuable, and if by valuable we use a monetary standard, well, then Happy Birthday is the most artistic piece of music ever written. 

And remember, the 1980s was a golden age for the industry and not the norm. How excited were the labels when they knew they could get a listener who owned a tape to buy the same album on the spanking new CD? 


Anonymous said...

Thanks for your analysis. The reason why Swift did not mention copyright is that, lacking new credible business models, the music industry is just using copyright lobbying to try to survive. Law itself can't help though. And they have not realized that yet. Or if they have, they are still in denial. How pathetic.

Anonymous said...

To be fair, Gorillaz are not a normal band. For instance they either have, depending how you look at it, four members, all fictional, or two members, one a singer and the other a comic book artist. You might expect there to be a few difficult issues to clear up.

Richard Tomasi said...

Very true, Anonymous II. However if you look at the link below, I think you will agree that contracts nowadays will go well beyond the 3.5 pages that Thin Lizzy signed in 1970.