I’m a musician, not a lawyer. But for the past year, I’ve been asking my friends to sign letters with language like this:
I am opposed to the efforts from technology corporations to exploit works that they identify as “orphan works” online with no compensation to the creators. I oppose the fair use exception being applied to the mass digitization of orphan works. Fair use is too broad an exception for this activity.
If this stuff makes your eyes glaze over, you’re not alone: I need a lot of caffeine. I persist because I’ve witnessed, over the past few years, a relentless attack on the basic rights of myself and my “creative” colleagues. I’ve experienced the damage this attack is causing in my community and I’ve lived long enough to know that it doesn’t have to be this way.
Change is inevitable: exploitation isn’t.
A major battleground of this attack is the ongoing “copyright reform” hearings in Washington, DC. What should have been a reasonable discussion on how to make the copyright system work for all parties has become an aggressive power grab on the part of Google and other tech corporate giants. As you can see from the snippet quoted above, the issues are incredibly complex: but the results will be simple: the devaluation and destruction of our livelihoods and art forms.
We don’t have much time:
“…if the creative community doesn’t intervene now, and by now, I mean, fucking now — we will be bound to a multigenerational clusterfuck that will take 40 to 50 years to unravel.”
— Kurt Sutter, executive producer and showrunner of the FX drama series Sons of Anarchy, in an open letter in Variety magazine, August 5, 2014.
I’ll return to the issues in a bit. First, I’d like to tell a story — a true one — about how these seemingly nerdy details of copyright law can make a big difference in the lives of artists and the vitality of a culture.
Long before Google existed, it was common for publishing companies not to mail out composers’ royalty checks unless the composer complained. Inevitably, some wouldn’t, and the publishers could pocket the money. For middle-level composers, it was a common scam.
One such composer was my guitar teacher Frantz Casseus (aka “the father of Haitian classical guitar”). Frantz, after emigrating from Haiti in 1948, had put out several records on Folkways, and once had a tune covered by Harry Belafonte — but he wasn’t rich, not by a long shot. I took my weekly lessons in his tiny rent-controlled apartment on West 87th Street in Manhattan, surrounded by the clutter of sheet music, eternally morphing home-made furniture and the Brazilian rosewood of half-finished guitars.
Frantz supplemented his composer’s publishing checks by editing guitar books, making guitars, concertizing and, luckily for me, teaching. He lived very simply, but he got by.
Things became difficult as Frantz’s publishing income began to dry up in the ’70s. In the mid ’80s, he suffered a series of strokes that left him unable to play guitar. A friend who had volunteered to help get his finances in order figured out that income was being blocked, and confronted the publishing company. They responded predictably: “Oh, we just didn’t know where to send the checks.” Frantz had lived at the same address and with the same published phone number for over 40 years.
Several months later, a check for $16,000 arrived, representing decades of unpaid income. By this time, Frantz had been forced onto Medicaid — so everything that went into his bank account went straight to the government. Still, it wasn’t the financial loss that bothered Frantz most. What he said as he stood there, finally holding the long-delayed check in his hand, was this: “If I had known, I would have composed more. I felt my work to be without value.”
These days, as the attack on artists’ rights threatens to make Frantz’s loss into the new normal, placing access to rights beyond the means of most creators and increasing the vulnerability of musicians exponentially, I’m often haunted by Frantz’s words.
I feel a ghost in the room when governmental roundtables of distinguished stakeholders discuss the strength of the protections and incentives our founding fathers created copyright to provide. And then Big Tech’s corporate accountants provide mountains of data on the dangers (to them) of providing too strong a protection.
But who will speak for the works of art left uncreated if the protections are too weak? Who represents the work aborted, abandoned, or never undertaken in the first place? What accountant can place a value on the loss from a work’s absence? Who speaks for the discouraged, tired of being unvalued, who walked away from their gift? Or protests the loss of the ineffable, immeasurable might-have-been?
Frantz died less than a year after receiving his check, leaving behind a body of work beloved by Haitians and classical guitar fans to this day. If we judge the work Frantz might have composed by the work he actually did, then the loss — to Frantz of the dignity of work, to the public of the beauty his work might have created — is profound.
I should add two things:
Although the publishing scam described above remains common, other forms of theft occur much less frequently. For example, using copyrighted material in films or television commercials without a proper license is relatively rare. Why? Because composers/artists have effective recourse. In the end, Frantz got his check: for all its abuse by corrupt institutions and individuals, the system functioned: most working composers, artists and musicians got paid.
Frantz’s human tragedy and our cultural loss come down, at the end of the day, to details of law: to the presence or absence of the legal protections now under discussion in the copyright reform process.
Which is why it matters to me when I see corporate lobbyists aggressively trying to use this process to create a new legal landscape in which their drive to profit without paying creators will be unobstructed, while our tools to win fairness will be greatly reduced or obliterated. And they’re trying to go one better than the publishing scams of yesteryear: they want to put virtually all uses of our work in the same legally vulnerable position that enabled his publishers to rip off Frantz — and many others. They want to eliminate the recourse that enabled Frantz’s diligent friend — actually, it was my mom, Harriet — to win some form of justice.
And they’ve become rich and powerful enough to get away with it.
The way things were was far from perfect, but at least there was a common understanding that not paying the composer or artist was cheating.
This is no longer true.
Google brokers ads to ad-based black marketeers (aka “pirates”). I’m not talking about college kids file-sharing with their friends. These large-scale commercial enterprises exist to sell ad space, uploading tens of thousands of files as bait. Without the ad sales, they wouldn’t exist. Artists/composers get nothing. However, Google is protected by the “safe harbor” clause of the Digital Millennium Copyright Act, or DMCA. None of their profit goes to paying for the work that made it possible.
On Google-owned YouTube, creators receive a small percentage when work we post is streamed. But when others post our work we get nothing. We’re allowed to file DMCA take-down notices, but the violator can re-post our material again almost immediately. Google could stop this unauthorized use — other legal file-sharing services do — but they choose not to. They sell ad space whether the post is authorized or not. None of this profit is shared with artists.
And so our work is fast becoming economically unsustainable: not because some “disruptive technology” has found a better or cheaper way to make what we make, not because people no longer listen to our music, but because the current legal framework permits huge corporations to profit off our work without paying us.
The corporations that don’t pay us are driving those that do out of business.
And so it goes: the bean-counters continue to count beans — and those not counted disappear. The utter banality of this fact does not lessen the loss. Lest we forget, these bureaucratic details are what evil looks like in our world — and, notwithstanding their famous motto (“don’t be evil”), there’s a whole lot of devil in the arcane details of Google et al.’s Copyright Office testimony.
When Frantz Casseus felt deprived of value those years when the checks stopped coming, it wasn’t because he was “in it for the money” — Frantz was easily the least materialistic person I’ve ever met. He dropped out of law school in Port-au-Prince, giving up what could have been a comfortable life as a civil servant, so he could become an artist and move (in 1948) to an America that often didn’t hold black men with foreign accents in high regard. I never heard him voice a word of complaint; he was doing what he loved.
But for better and for worse, money is how value is measured in our society — it’s how we know others care about what we do — and yes, it’s how we survive. And until the day when that ceases to be true for all of society, we musicians, recording artists, writers, photographers, film makers, graphic artists — we who create so-called “content,” we who do the work of art — are going to ask to be paid for our work, just like any other group of working Americans, no matter how many trolls, most of whose garages are bigger than Frantz’s entire apartment, attack us for being “only in it for the money” whenever we have the courage to speak out.
We’re organizing to fight back. We’re going to give value to the ineffable, uncountable and immeasurable beauty being destroyed. We’re going to give voice to the creators whose work — and lives — are being devalued by tech-corporate greed. We’re going to fight for the sustainability of the culture we all enjoy. We don’t have the lobbying millions of the tech-corporate giants, but we’re going to win. Because the truth is a powerful slingshot.
Editor’s note: If you’re in the New York area, by all means go to “Benefit for Content Creators Coalition (c3): Defend Artists’ Rights: Economic Justice in the Digital Domain!” on Saturday, October 18, 2014 at Roulette. The show features: John Zorn, Eric Slick (Dr. Dog), Steve Coleman, Marc Ribot, Henry Grimes, Marina Rosenfeld, Trevor Dunn, Brandon Seabrook, Satomi Matsuzaki (Deerhoof), Amir ElSaffar and more. You can buy tickets here.
And there’s a free concert and rally at Le Poisson Rouge on Sunday, October 19, 2014 at 2:00 p.m., featuring Rosanne Cash, Yuka Honda and Miho Hatori (of Cibo Matto), Wesley Stace, Marc Ribot, Marcus Rojas’ Brass Ensemble, Ava Mendoza, and other artists tba.
The website for the Content Creators Coalition is here.