Is It Really So Bad If Music Is Used In A Way The Musician Doesn't Like?
from the name-that-awful-tune dept
One of the complaints we often hear about our discussions on why content creators can often be better off by ignoring copyright is that doing so puts those artists at risk of having their music used in a way they don't like. A major record label exec, for example, emailed me after my presentation about Trent Reznor and said that copyright was still necessary, because what if some tampon company made a commercial with Reznor's music, and he didn't want to be associated with that product. Now, I can understand the argument here... but within limits. First of all, what's really being discussed is a moral right over how the music is used. And, for some very good reasons, US law doesn't recognize a moral right (plenty of other countries do, however). So if the tampon commercial example happened, Reznor could sue over not getting paid for the use, but not over any moral right. And, in fact, in many cases artists do not have any control over how their music is used. Certainly, any of us can listen to music however we like, even if we disagree with the politics of the artists (a common refrain) -- and, as we've noted, for public performances, existing laws allow music to be used without permission from the artist already.And... while the artist may not like it, it's not necessarily a bad thing. For example, check out this hilarious and amusing minor league baseball promotion held recently, where the baseball team had a special "Nickelback Night" that didn't exactly celebrate the Canadian rockers... but mocked them:
Music from Canadian rock band, Nickelback, will be played throughout the game and fans can participate in on-field games like Name That Awful Tune, a contest for who can grunt (or "sing," as the band likes to call it) a Nickelback song the best, and an air guitar contest.The whole thing is quite amusing -- and despite that final quote, unlikely to do any actual "harm" to the band. But if there was a moral right, the band could (and potentially would) step in and try to block such a thing from happening.
The band got its name from member Mike Kroeger, who would frequently say "Here's your nickel back," in his job at Starbucks.
In that spirit, the Ports will give each fan a nickel as they exit the game on June 16, as a "Thank You" and an apology for listening to the band's music all evening....
"Hopefully, people will realize that they have been spending their money on music that not only sounds bad, but that also has lyrics that make absolutely no sense," said Ports Director of Marketing Justin Gray. "If we do our job correctly, fans will leave the game with the knowledge of how to save money by not spending it on incoherent grunting, thus creating more expendable income, and possibly saving the nation's economy."
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, moral rights, music, nickelback
Reader Comments
Subscribe: RSS
View by: Time | Thread
All publicity is good publicity?
What if the band in question wasn't one that most of the internet hates, and the group mocking them wasn't a baseball league but a rival records company (or band), could you still justify it in quite the same manner?
I don't mean to undermine the right of use of media in satire, but if the future of music artists is to turn themselves into brands (as Matt Mason suggests), won't it become even more crucial for bands to have a tight control over the way their creations are used?
[ link to this | view in chronology ]
Re: All publicity is good publicity?
[ link to this | view in chronology ]
Anyway, satire / parody is one thing, what that event did to Nickelback goes past either of those and hits right over to mean, nasty, and ill intentioned. It can create harm, because it can create an atmosphere where people are encouraged to hate the band. Perhaps some of their marginal fans show up at this thing, and end up being corrupted into no longer liking the band that much. Harm therefore is done.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
I would have no problem with people doing this. I would sit back and let these people obsess about one band and I'd just go one focusing on the music. People would see it as obsession and more than likely would create more fans than destroy.
Oh, and just because Trent decided not to tour any more doesn't mean that he can't give away his music and support it in the many other ways he has already done.
[ link to this | view in chronology ]
Re:
A marginal fan being corrupted and no longer liking the band after a night of having their music played? I see you've heard the band and agree how bad they are...
[ link to this | view in chronology ]
Re:
Link, please.
[ link to this | view in chronology ]
Re: Re:
@ the initial AC:
Yes, NIN is, to paraphrase Reznor, going to go away for a while. Tour shirts carry the phrase "Wave Goodbye" to emphasize this. This doesn't undermine the point at all, though. Just because someone decides to stop producing a scarce good, it doesn't mean that they weren't making money with it/that the business model is bad. In this case, I'd wager that Reznor feels like taking a break, and has the fuck you money to do what he pleases. I think that one can infer that his utilization of a free music/pricey scarcities model has given him the financial reserves to do whatever the hell he feels like doing, and at this point it appears that he doesn't really want to tour, so he's not. contrast that with bands who are still label-slaves, and continue to tour well past their primes. I'd imagine that if the Rolling Stones had been able to properly monetize their act, I wouldn't have to listen to their new shit anymore, and could fondly remember them as a good band instead of the headliners on the "Please God, just let them die already" tour, sponsored by Cialis and Geritol.
If you see the "old system" as simply someone making money from their art, then you have gravely misunderstood this argument. The old system charges for the music itself(most of this money going to the record labels), as well as the scarce goods that fans seek out. Newer methods will discount/give away the music, which NIN has done, and instead seek to make their money on the accompanying scarcities, e.g. limited editions, signed vinyl, other merch, and tours. Since music has become a near-infinite good, the onus of making a profit shifts to those things that an artist can control, namely material goods (shirts, posters, vinyl) and 'face time' goods (performances).
[ link to this | view in chronology ]
Re: Re: Re:
That people have found a clever way to screw the record companies, artists, and song writers out of royalties doesn't make it any better.
In the end, it is why I always have a problem with the Masnick way, because it is entirely dependant on wholesale infringement and giving in to the criminals rather than trying to stop crime. I wonder if Mike would have the same opinion if drug dealers and hookers were operating in his living room.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Despite this sudden and dramatic drop in the cost to procduce, the price of the music, as dictated by record companies, has not fallen. CDs are not pressed for these songs, album art not printed, etc. Beyond the initial cost of producing the music itself, there's near-zero overhead. I do not have a problem with a record company recouping their production costs, nor with them making some profit on the music once that cost has been covered. I do have a problem with an old pricing system being perpetuated when the cost of production has fallen dramatically.
I doubt that most file-sharers can claim a philosophical basis such as this as justification for their sharing. They are simply following an entropy-driven system that allows vast expansion of their music catalogues for minimal cost/effort.
In my mind, the legality/motivation question is a moot point, because the P2P community won't be held back at this point. Set up a fence, and they'll go over/under/around it. Electrify the fence, and they may simply avoid your yard entirely. One solution, the one that Mike, and I, will advocate, is to tear down the fence around those things easiest to get. Instead, build that fence around the things that you can truly control, those scarce goods that fans seek out.
You're talking morality, and we're talking economics. I'm not going to play on your ground, because it's not as advantageous to my argument. Sun Tzu devoted two chapters in "The Art of War" to choosing and knowing your battleground, and I know that this battle will be decided on the field of economics, not morals. I'll concde that there may be some truth in your argument, talk of drug dealers and hookers aside (heavy-handed, that was), but truth rarely won any wars.
Fun fighting with you.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Digital audio files aren't infinite goods because of the law. It's because of technology.
Copyright law can't change the fact that the marginal cost of reproduction of a digital audio file is essentially $0.
[ link to this | view in chronology ]
Re: Trent not Touring Anymore...Until the Next Time
[ link to this | view in chronology ]
Re:
Uh, because it's not true on a variety of different levels.
1. Before this entire tour launched he announced that this would likely be the last NIN tour. At he's said so at most shows. So his statement at Bonnoroo wasn't anything new or unexpected. He was just pointing out that it was *probably* NIN's last show in the US.
2. In that same quote he pointed out that *he* isn't done touring and making music. It's just not going to be NIN any more. And, again, that wasn't news. He'd announced that before the tour even started.
3. His model hasn't relied on touring in the first place. The main example we use of his, where he brought in $1.6 million in a week had *nothing* to do with touring.
4. We've never said "free music, expensive tickets" is the model.
It's fine if you want to criticize us or challenge us, but it helps to get your facts straight.
[ link to this | view in chronology ]
Re: Re:
Actually, you have - give the music away, and create demand for the scarce (concert tickets, example). However, when the act is NIN and they already sell out all their shows anyway, what happens? Demand goes up, there is no extra tickets, so the value of those tickets goes way up. Acts like Madonna and many others (heck even Miley Cyrus!) have figured it out and are now charging insane amounts for their concert tickets, in part to make back what isn't made selling music.
So in the end, it is "free music, expensive tickets" - perhaps like many things, you haven't thought it through to the logical conclusion? Most major acts can't just add more seats, they are already doing as many shows in as big a venue as possible.
It's especially important for artists signed to companies like Live Nation, who do both the concert and record sales ends of things. You lose on one side, you make it up on the other. It's only logical.
"3. His model hasn't relied on touring in the first place. The main example we use of his, where he brought in $1.6 million in a week had *nothing* to do with touring."
Considering you link to every marginal story on your website, why didn't you link to this one?
[ link to this | view in chronology ]
Re: Re: Re:
The model was never stated as "free music, expensive tickets", it was more like "Connect with your fans, and give them a reason to buy". To cover the first part of that scenario, Reznor first made his music incredibly easy to get to, DRM-free and in a number of high-quality formats. He encouraged remixing of his audio, providing albums/songs in multi-track files to make slicing and dicing easy for apt fans, and provided tons of video footage from live performances for fans to play with. This showed fans that the man valued them, or at least didn't think they were criminal children. Yes, he was giving stuff away, but it was to show that he was invested in them as well, and this built a stronger loyalty.
The second part, a reason to buy, involves him offering the music for free, but then allowing fans a deeper experience, as well as scarce goods that couldn't be downloaded. For examples, see link:
http://ghosts.nin.com/main/order_options
In this case, the limited edition package sold out, equalling $750,000 in gross sales, and God knows how much more in sales of the other packages.
Ticket prices may indeed go up, but at a certain point the market won't bear it any more. When it hits that point, the difference will be in the extras that artists offer, and what they can do to show their fanbase that they appreciate the attention. (Mean, school marm-y summary coming) If they can connect with their fans, and at the same time give those fans a reason to buy, fans WILL buy, and artists worth their salt should be just fine.
Browbeating/harrassing/suing fans sure as hell isn't connecting with them, and no matter how much the RIAA howls, they can't change that.
[ link to this | view in chronology ]
Re: Re: Re: Re:
This is where you are wrong.
FIRST, trent made about 17 or 18 releases on normal media, toured extensively, gave many interviews, and promoted his albums and work, garning him a huge fan base. Before a single piece of his music was legally shared online, Trent already had a huge worldwide audience.
The reality is that even with all his "giving it away free", NIN is no longer anywhere near the powerhouse it was a few years back. Most of the new material isn't getting anywhere near the play. In fact, considering I listen to alt-rock stations almost without exception, i would say that most of what I hear is older stuff, up to maybe "With Teeth" and then everything beyond that gets spotty coverage. Even songs that do get airplay and "top 40" listings on alt rock stations don't tend to have long term staying power, and this in a marketplace that has very few good new releases anymore.
So sadly, the problem is while Trent is an good example of what can be done, it is done not from scratch but rather from a position that was made, supported, and paid for by the traditional recording industry / record label / distribution systems (that Trent is part owner of). Ghosts would have sold very few copies of the $300 package on merit alone, being that the album is honestly, well, not really very good stuff. It is mostly artistic masturbation, I hate to say.
(please note, I am a huge NIN fan, with everything that came from the very start up until With Teeth).
The important part is that Trent starts with a massive, multimillion fan count before he starts anything, and makes music that is likely to appeal to the exact demographic that is into this sort of thing. It's great for him, but taken away and released as "joe blow", most of this stuff would be soundly ignored. It is why I tend to giggle when Mike uses NIN as poster children for his ideals, because it is really only proof of what you can do when you are rich and no longer care if you are successful.
Oh yeah, the ghosts "limited edition" stuff (digital) is all available on the torrents for free.
[ link to this | view in chronology ]
Moral rights separate from copyright
[ link to this | view in chronology ]
Re: Moral rights separate from copyright
And, CC licenses do waive most moral rights claims. Here's the text from the licence I use, Attribution-Share Alike Canada 2.5 (Canadian copyright law has moral rights, unlike in the US):
[ link to this | view in chronology ]
There's also a 'future sales' issue
Using your example, let's say the tampon commercial becomes an instant classic. It's uploaded to YouTube and becomes viral, or even short of that... just plays for a long time and the Reznor song becomes permanently associated with the product.
The likelihood that song will ever be used in a movie or television soundtrack drops to nil. The likelihood that song will ever be used to market other products also bottoms out.
[ link to this | view in chronology ]
Re: There's also a 'future sales' issue
[ link to this | view in chronology ]
Re: Re: There's also a 'future sales' issue
However, music today has a dual purpose. There is a lot of money tied up in using music as a means to set a mood or drive emotion in movies/television/commercials that aren't directly tied to the artist or song directly. Yet still, the income an artist makes through this channel is significant, and something that they try to protect.
[ link to this | view in chronology ]
Re: Re: Re: There's also a 'future sales' issue
Oh, wait. You're still figuring on the old business modles, aren't you?
[ link to this | view in chronology ]
music as an asset
In the case of a veteran artist or group, the "back catalogue" is their nest egg, their pension, and they don't want to see it abused or devalued. There can be real financial consequences to the public's subjective perception of the music. It's particularly worrying in these days of mass music piracy, and while many bands make their money through touring and associated merchandising, that's not always an option for bands with members in their sixties. It might be all right for the Rolling Stones, who can sleepwalk their way through a stadium gig, but the likes of King Crimson play far more demanding music, to smaller audiences, on lower budgets that make touring a painful experience.
[ link to this | view in chronology ]
Re: music as an asset
[ link to this | view in chronology ]
Re: Re: music as an asset
All those drugs don't pay for themselves, you know...
[ link to this | view in chronology ]
Re: Re: music as an asset
[ link to this | view in chronology ]
Re: Re: Re: music as an asset
The new modles are better for everyone except those invested in the old modles. The ability for these non-active muscicans to keep getting income is often used as an argument for why we have to keep copyright. But it's a circular argument because copyright is what allowed the modle in the first place. And there IS nothing special about musicians that makes their work more important. If I write financial software I get paid once, even if a thousand banks use that software for sixty years. Why is it musicians should be entitled to sometjhing better than that at the expense of the public?
[ link to this | view in chronology ]
Re: Re: Re: Re: music as an asset
Your comment that the "new modles are better for everyone except those invested in the old modles." How so, and how do you know? The VAST majority of the world economy legally trafficking in content still uses the "old modle" quite successfully. You further say that "better business modles that can get more people more money without the need to copyright's baggage." Really? I've read a lot on these boards just in the last few days that the new models get "some money to a lot of people." So which is it? And also, the WHOLE industry needs to be included, not just the artist. Do the "new models" really incorporate all those participating in the industry in this beneficence? If it doesn't, then is it really a comprehensive model.
As for your other comment that "If I write financial software I get paid once, even if a thousand banks use that software for sixty years" well, it all depends. In most cases, the owner of the rights is your employer, not you. And I'm guessing you were not the sole author anyway. Just as a jungle writer who is an employee of an ad firm might not receive an individual copyright on collective work. Or it may be a forced/shared copyright as is often down on patents. The copyright owner (whether a business, individual or collection of individuals) can then license it to other businesses (or give it away!). Int he case of software, they can charge maintenance on it, or do a SaaS rental scheme. So, while you don't get a royalty payment, the business gets that or an equivalent, which benefits you in the form of a paycheck. If you are an independent software author, you have a lot of options as to how to get paid, including some that can get you on-going payments.
Today, content producers have lots of options. It is worrisome that *some* of the new models actually provide content producers fewer options as to how they choose to manage their creations.
[ link to this | view in chronology ]
Re: music as an asset
[ link to this | view in chronology ]
Re: music as an asset
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
For my work I create testscripts, but I don't get to dictate how those scripts are used after I've made them. For all I care, people use it as toilet paper... it's their papercuts, not mine.
[ link to this | view in chronology ]
In The End
[ link to this | view in chronology ]
Re: In The End
[ link to this | view in chronology ]
Re: In The End
--open source programmer.
[ link to this | view in chronology ]
Re: Re: In The End
[ link to this | view in chronology ]
Re: Re: Re: In The End
[ link to this | view in chronology ]
Re: Re: Re: Re: In The End
[ link to this | view in chronology ]
Artist vs company
[ link to this | view in chronology ]
LMFAO. I'm convinced!!!
[ link to this | view in chronology ]
It's Tragically Hip
It's too bad though that The Tragically Hip, a fine Canadian Rack Band, does not get much air play down in the lower 48.
[ link to this | view in chronology ]
Not Your Choice
[ link to this | view in chronology ]
Re: Not Your Choice
If an artist wants to keep their music copyrighted, then it is their choice.
Actually, for the most part, they don't have much of a choice at all. The music is copyrighted upon creation, and there isn't any commonly recognized method for removing said copyright.
If they choose to use a different business model; that too is their choice.
Reading comprehension - this article doesn't say anything about business models; it's talking about the lack of moral rights over content, and how that's actually a good thing.
It is their music and their right to do with it as they want.
Actually, there are a variety of ways their music can be used without any authorization by the musicians - it's called fair use.
What gives everyone the idea they have a right to what someone else has created?
Because in the case of intellectual property, we already have that right. The legal system places a restriction on that right, in order to provide an incentive for the creation of more works.
[ link to this | view in chronology ]
Re: Re: Not Your Choice
[ link to this | view in chronology ]
Re: Re: Re: Not Your Choice
While I'm sure you meant 'genius' sarcastically, you haven't contradicted what I've said.
This does not mean that you buy a record and you can copy it and give anyone who wants a copy. Whether you like it or not the law is still the law. Just ask the lady in Minnesota who got nailed yesterday.
Ok...you're apparently reading things I didn't write. In any case, your original comment had nothing to do with the article. You did, however, manage to present an example that illustrates the point quite nicely. The use of 'Imagine' in the Stein's propaganda film was ruled fair use; it doesn't matter if Ono supported the films viewpoint or not. The use of the song was allowable, and there is no moral right as to how music is used.
[ link to this | view in chronology ]
Re: Re: Not Your Choice
[ link to this | view in chronology ]
Re: Re: Re: Not Your Choice
[ link to this | view in chronology ]
Re: Re: Re: Not Your Choice
[ link to this | view in chronology ]
Re: Re: Re: Re: Not Your Choice
[ link to this | view in chronology ]
*sigh*
a) If you sell the rights to music (and this is what we are talking about in most cases-music for which the "artist" has already been paid), that gives the buyer the RIGHT to use the music. Tampon ads, car ads, or tampon ads listened to in a car during a sex scene in a Paulie Shore movie. Any contrary idea is as ridiculous as a painter who has sold a painting desiring veto rights over who can look at it, or a writer demanding that no one interpret his work in certain ways.
Sure, the use of a song you thought was so profound when you were 16 in a toilet paper advertisement just SEEMS wrong...but logically, not so much.
b) There exists NO right to a comfortable retirement based on work done in your 20s. This applies to professional athletes too. The "unfairness" perceived when we see a beloved artist short on funds in their dotage is dwarfed by the "unfairness" and fickleness of fame and popularity in the first place.
How many musicians more talented than Britney Spears or Ashlee Simpson do NOT get any royalties at all? How many such talented people never even got a recording contract? Millions, I'd guess. So that particular "fairness" argument degenerates into particularity and preference.
Hell, how many artists more talented than the above-mentioned "performers" live in 3rd World countries and get paid in chickens and pottery?? I'm pretty sure "millions" is not hyperbole here. Where's the "fairness"???
Please examine arguments of fairness more closely before spewing kthnx.
[ link to this | view in chronology ]
Re: *sigh*
[ link to this | view in chronology ]
Re: Re: *sigh*
[ link to this | view in chronology ]
Copyright
[ link to this | view in chronology ]
Re: Copyright
In short, it's dumb for artists to make copyright claims.
[ link to this | view in chronology ]
Synchronization rights
[ link to this | view in chronology ]
Baseball
[ link to this | view in chronology ]
Re: Re: Re: Re:
Are you smoking crack? You never ever make any sense AC. Yes, I can always tell its you, in spite of your AC moniker, because you always spout the same nonsense with no backup, no basis in reality, and your posts are always charged with back-handed insults and assumptions that fit into what your limited world-view tells you should be. You refuse to see what is and take your ridiculous positions and statements to their logical end. Do you really believe content creators were better off before? Do you know ANY content business history at all?
"it is why I always have a problem with the Masnick way, because it is entirely dependant on wholesale infringement and giving in to the criminals rather than trying to stop crime."
No it is dependent on embracing what already exists (file sharing) and doing well rather than alienating fans and losing your business. Oh and infringement is a civil matter, so there are no criminals or crime involved. Are you a criminal if you get a traffic violation?
"Music is only an infinite good because we are currently tolerating widespread "infringing"
No infringing or not it is still an infinite good.
[ link to this | view in chronology ]
Baseball Schmaseball....
The fact that a for-profit entity would distract from their Raison d'etre to childishly smear a group of musicians as a publicity stunt smacks of infringement. (Keep in mind they used this to further their financial goals)
Further, it sounds to me like *someone* -(Ports Director of Marketing Justin Gray) - an individual with the ability to direct the publicity arm of this sports team, has an axe to grind. His directed venom demonstrates more than just a simple desire to create humor, and doesn't pass the smell test in regards to true "satire" - This isn't Saturday Night Live people, it's a SPORTS TEAM. I thought I was supposed to be entertained by home-runs and such...not this drivel.
Mike, I don't know where the "law" stands on this, but from a simple...I won't say moral ground, but from a simple public relations perspective, I think this made the Ports look like a bunch of douchebags, which I'm sure they are.
And, it didn't strike me as particularly funny or entertaining - just a distraction from what they're ostensibly there to do. ("Pay no attention to that batting average behind the curtain!")
Ports...stick to your day jobs, you fucking small change chumps.
CBMHB
[ link to this | view in chronology ]
Chad Kroeger's Horse-face
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Collective Licensing and Freedom of Speech
First, collective licensing agreements often mean that the creator doesn't have absolute control. Look at how politicians used music during the last American election (John McCain and the Foo Fighters?). Second, didn't Guitar Hero use cover songs at first to avoid having to negotiate with rock stars? Maybe I'm missing something about moral rights, but in those situations, people can just pay the fees and use the music, even if the creator objects.
Second, the real moral argument, I think, is based on an ethic of freedom of speech for artists. Sometimes, people worry about artistic "vandalism." What if you've got some folk songwriter who is throughly offended by a death metal cover of her song? Should she have the right to deny other artists from "destroying" or "vandalizing" her work? The problem is, who defines what's distorted and what's vandalized? I think there's a serious issue of artistic freedom here. I wouldn't want my ability to make art to be contingent on another artist's approval.
[ link to this | view in chronology ]