The Sky Is Rising: The Entertainment Industry Is Thriving, Almost Entirely Because Of The Internet

from the and-things-keep-getting-better dept

Announcing The Sky Is Rising 2019: a new report offering a detailed look at the entertainment industry.

A funny thing happened on the way to the internet supposedly destroying the entertainment industry. It saved the entertainment industry instead.

A little over seven years ago, we released our first Sky is Rising report for CCIA. At the time, the key point we found in looking at the state of the modern entertainment industry was that the parts that were whining the loudest about how awful the internet was for content were only representing a very small part of the actual content industries. Recorded music may have been struggling as a business, but every other aspect of the music business was thriving. More music was being produced than ever before. More music was being consumed than ever before. More people were spending more money on music than ever before -- just not in the traditional ways. Ditto for video. And books. As we noted back in that original report, if you focused on the supposed true purpose of copyright -- to "promote the progress" of content production -- it was clear that the internet had made that possible a lot more than "copyright" law ever did.

Today, again in partnership with CCIA, we're releasing our brand new Sky is Rising report for 2019, again looking at the state of the global entertainment industry. And, once again, it's thriving. But something big has changed in the past decade or so: even the legacy parts that were struggling when we put together the last report, the parts that were most impacted by the transformative nature of the internet, are now thriving as well. And in basically every case it's because of the internet that the legacy companies have shunned and complained about (not to mention demanded a continuous, never-ending, new set of laws to "tame" the very internet that is saving them).

A few tidbits from the report, though I recommend reading the whole thing. Despite the doom and gloom statements from the industry about how consumers were just "getting stuff for free" and no longer interested in paying for content, the data shows that consumers continue to increase their spending. There was a temporary drop off... but it coincided not with the rise of the internet, but with the 2008 financial crisis:

The recorded music business is often the poster child for an industry "wrecked" by the internet. And you could potentially have made that argument a few years ago if you totally ignored the fact that more people were making and releasing music than ever before. But certainly, "recorded" music revenue had dropped... until, starting around 2014, that turned around. And it's entirely due to streaming music, which last year accounted for nearly half of all recorded music revenue, and continues to grow at an astounding clip. Anyone who says that the internet has destroyed the recorded music business is lying to you:

But, that's not all. As we detail in the report, all other aspects of the music business have continued to thrive -- with much of it being because of the internet. The live music business has continued to grow. Music publishing and performance rights have continued to grow. Music merchandising has become a massive business in its own right. It's literally nearly impossible to find any part of the music business that is struggling these days, despite what some folks in the industry will tell you. Of course, if you're wondering why the RIAA and others changed their talking points from complaining about "piracy" to the made up concept of "the value gap," this is why. They realized that things were going great, and all their talk about piracy killing the industry was increasingly going to ring hollow. So they invented this purely fictional concept of a "value gap" which is basically just whining that other industries are too successful and need to be forced to hand over more money. This too is an old playbook for the RIAA labels, who have spent decades trying to squeeze every penny out of any successful online service, continually insisting that if anyone else makes a dime off of music, it should instead go to the labels.

The video world is another fascinating realm. Netflix and other streaming video providers have helped created the golden age of TV-style programming these days. We detail in the report just how much Netflix, Amazon, and other streaming video services have been spending on content, leading to massive growth in original scripted TV programming. But, it's not just the online streaming services. The number of original scripted TV programs on broadcast, basic cable and premium cable has also risen over the past decade. And this is all happening despite so much competition from other things people can do with their free time:

On the movie side of the coin, box office revenue continues to increase, both in the US and abroad. People are continuing to go to the movies, and more movies than ever before are being created around the globe. There was so much data here, we finally just had to stop adding more to get the report out.

In the past, some people argued that just talking about box office numbers was unfair, because where the internet was really having an impact was in destroying the home video market. There was some amount of irony in that given just how loudly and fiercely the MPAA itself had fought against there ever being a home video market (cue former MPAA boss Jack Valenti's famous Congressional testimony, in which he declared: "I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone."). That wasn't true back then, and it's certainly not true today either. A few years after Valenti said that, the home video market brought in more revenue than the box office -- and that's still true today. The home video market is growing fast -- and it's almost all because of the internet. Note how much of the market is now subscription based, rather than transactional. That's Netflix's innovation, not the movie studios.

And then there's books. Once again, rather than destroying the market, the internet has saved it. More and more books are being published. Interestingly, in the book market, the story was a bit different than elsewhere. While ebooks and audiobooks are now a significant portion of the book market, physical books seem to be making a bit of a comeback -- and a lot of that has to do with the ability to buy them online.

Indeed, what we found in our research is that a tremendous uptick in new books is coming from authors self-publishing (in 2017, over a million self-published books were released for the first time -- a massive increase over the past decade). Believe it or not, most of those self-published books are available as paper books, rather than ebooks, thanks to internet services like Amazon CreateSpace, Lulu and Blurb.

Indeed, as we saw back in the 2012 report, a huge part of the story of today's entertainment industry is how much is now being driven not by the old gatekeepers, but by the fact that anyone can make use of the internet to create: whether it's video, movies, music, books, or video games, lots of people are using the internet to create, to build an audience, to distribute globally... and to make some money. So many of the new "stars" are coming up via the internet, rather than waiting for some legacy gatekeeper to discover them. That hasn't made those gatekeepers obsolete, but it's certainly taken away some of their leverage.

Back in 2011, we noted that so many people kept referring to their being some sort of "war" between Hollywood and Silicon Valley, but it struck us as odd that Silicon Valley kept coming up with the "weapons" that seemed likely to help Hollywood thrive. Eight years later, the evidence is in: the entertainment industry is thriving. The sky is rising. And Hollywood should be thanking the internet, rather than continuing to attack it at every single turn.

Go check out the full Sky Is Rising 2019 Report for a detailed look at the state of the entertainment industry today.

Filed Under: books, hollywood, movies, music, sky is rising, tv, video, video games

Independent Musician Dan Bull's New Song, Robocopyright, Warns Of The Dangers Of Article 13

from the for-the-artists dept

You know how supporters of Article 13 keep insisting it's "for the artists?" Well, successful independent musician Dan Bull has just put out his latest song and video: Robocopyright, calling out all the ways in which Article 13 will harm him as a creator:

The key message: Article 13 and its requirement for filters (and, yes, it requires filters) will mean more gatekeepers, more censorship, and less freedom for creators. Algorithmic policing of content does not work as it cannot take into account context. It fails in both directions in blocking legit content and failing to block infringing content (which will only open up platforms to even greater liability). In short, to anyone who understands technology, it will be a huge mess.

Go watch it and then let the EU Parliament know not to pass Article 13.

Filed Under: article 13, copyright, dan bull, eu, eu copyright directive, music, robocopyright

News Organization Like Reuters Supporting The EU Copyright Directive Is A Shameful Support For Censorship

from the sad-times dept

A bunch of sites have been reporting on the news that over 200 organizations have signed a letter in support of the EU Copyright Directive, with most of the news reports focusing on the fact that a ton of music collection societies and music industry trade groups are on the letter. The letter itself makes no real argument, it just says "pass this damn thing." Well, since the law hasn't yet passed, I think I can quote the whole thing without getting fined, so here it is:

We, the undersigned organisations, representing authors, composers, writers, journalists, performers and others working in all artistic fields, news agencies, book, press, scientific and music publishers, audiovisual and independent music producers call on the European Parliament to adopt the Directive on Copyright in the Digital Single Market.

This Directive has been long sought to create a much-needed level playing field for all actors of the creative sector in the European Digital Single Market, whilst giving citizens better access to a wider array of content.

This is an historic opportunity. We need an internet that is fair and sustainable for all. This is why we urge policymakers to adopt the Directive quickly, as agreed in trilogue negotiations.

Of course, we've explained multiple times why none of this makes much sense. Nothing in the EU Copyright Directive is about creating a "level playing field" or "giving citizens better access to a wider array of content." Indeed, as written, it will do the exact opposite. It will heavily weight the playing field towards large organizations (both tech and copyright) and massively limit availability to content through mass mandatory filtering.

Anyway, I'm not surprised at all the collection societies signing on to this -- as they know that they'll be in the best position to demand more money from platforms should this become law. What I find most troubling, however, is to see a bunch of news organizations -- including behemoths like Reuters -- signed on. I know that many large news publishers (stupidly) support Article 11, in the false belief that it will magically create a new stream of revenue for them from Google News having to pay to link to them (even though that hasn't worked in Germany or Spain when similar laws passed in both places).

But it's simply stunning that these news publishers -- who often hold themselves up as the supporters of free expression -- are now seen to be supporting the censorship powers of Article 13 as well. This is an incredibly short-sighted position for these news orgs to take. News reporting quite frequently depends on things like fair use and fair dealing -- and the current version of the EU Copyright Directive will make that nearly impossible.

It is disappointing in the extreme to see organizations like Reuters completely toss their principles out the window in hopes of taxing Google.

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, eu parliament, music, news

Florida Dept. Of Corrections Sued For Screwing Inmates Out Of $11.3 Million In Digital Purchases

from the you-don't-own-what-you-overpaid-for dept

Last fall, the Florida Department of Corrections decided it needed to enrich itself at the literal expense of its inmates. It signed a new contract with new provider of jailhouse entertainment, instantly making $11.3 million in purchased digital goods worthless. You don't own what you paid for, even at inflated prison prices.

The new contract with JPay rendered the purchased content unusable. Even the players purchased by inmates aren't technically theirs and must be returned to the vendor. Not that keeping the players would help much. The licensing agreements covering the content are only valid if the previous contractor is providing the service. Since it's not, the mp3s and ebooks can't be transferred to JPay devices.

Unsurprisingly, inmates are furious. So are their families -- the ones who paid extortionate rates to give their imprisoned family members a little music to enjoy. The DOC recognized this was a problem and created a portal for the filing of complaints related to this disappearance of purchased digital goods. That portal is going to be very useful in the upcoming lawsuit against the Florida DOC for screwing inmates out of their purchases. (h/t Boing Boing)

The Florida Department of Corrections is facing a potential class action over recently forcing inmates to forfeit millions of dollars worth of mp3 and other multimedia files purchased under a since-axed media player contract.

William Demler, a 74-year-old incarcerated man at South Florida Reception Center is the lead plaintiff in the case, which was filed in the northern U.S. District Court on Tuesday with the backing of the nonprofit legal firm, the Florida Justice Institute.

The lawsuit [PDF] says the Florida DOC violated its own contracting guidelines when it decided to prioritize its profits over the inmates' purchases.

As part of this bidding process, both the FDOC’s Invitation to Negotiate Contractual Services, as well as the FDOC’s Request for Proposal for Contractual Services, explicitly stated that compatibility with the FDOC’s prior vendor was a mandatory requirement of the contract, in order to ensure that prisoners would not bear the cost of the transition between vendors:

[T]he proposed system must allow for inmates who currently have a device and/or songs purchased from the current Contractor to transfer and/or obtain updated equipment and/or music compatible with the successful contractor’s Digital Music Player Program. It is the intent of the Department that the implementation of a new Digital Player Program to have little or no financial impact on inmates presently participating in the Department’s current program.

Obviously, that's not what happened. A new contractor was picked based on prison profit margin, disregarding the standards the DOC set for itself. On top of that, the previous contractor offered up its own false assurances about the longevity of purchased digital content.

In addition to touting the qualities of the digital media players themselves, at least one widely-distributed advertisement, which appeared on the digital media player order form itself, also touted various qualities of the Digital Music Player Program, including the following representation:

Browse, search and preselect songs from updated music catalogs holding millions of song titles representing a wide array of music genres. You have the ability to purchase and listen to unlimited music utilizing the re-download feature free of charge. Once music is purchased, you’ll always own it! (emphasis supplied).

The only concession the new vendor has made is one that solves none of the problems created by the new contract. For a fee, inmates can have their mp3s transferred to a new device or CDs, but those copies can only be sent to friends or family members who can hold onto the purchased content until the inmate is released. This means every inmate wishing to access the music and books they thought they owned will have to not only repurchase the content again, but the devices and accessories needed to access them.

The suit is probably a long shot, but it does highlight the bullshit engaged in by companies selling digital media that relies on a thicket of licensing to make its way to the end user. Promising anyone that their digital purchases will be around "forever" is so out of touch with the reality of the situation it should be considered fraudulent on its face. In this case, the planned obsolescence was accelerated by the DOC's desire for a better profit margin. If there's any justice, those profits will go towards replacing the purchased goods it took away from the inmates it houses.

Filed Under: copyright, department of corrections, digital goods, florida, inmates, mp3s, music, ownership
Companies: jpay

Pharrell Is Not At All Happy About Trump Using 'Happy' At His Rally... And He Might Actually Have A Case

from the didn't-see-that-coming dept

It happens basically every election cycle: at a political event or rally a politician that a musician dislikes uses one of that musician's songs to get the crowd excited. The musician gets upset and speaks out about it, and maybe even sends a legal threat letter. We've written about this many, many times before going back many years. And in most cases, the complaints are bullshit. Most event venues and and most competent campaigns have the appropriate blanket performance licenses from BMI and/or ASCAP, and that allows them to play whatever they want at the events, and the musicians really can't do much about it (other than complain publicly, which makes lots of news -- and which is why we're still amazed that campaigns don't first check to make sure they play music of musicians who support them).

But... there are some rare exceptions to this general rule, and not only have we found one, but it involves quite an impressive legal threat. It appears that on Saturday evening, just hours after 11 people were murdered in Pittsburgh, President Donald Trump decided to still hold a political rally, because when the choice is put in front of Trump between "appropriate silence" and "pointless spectacle that makes Trump feel worshiped" he will always choose the latter*. But at this highly inappropriate rally, Trump apparently played Pharrell Williams' incredibly upbeat earworm of a pop song "Happy."

* Hey, I get that some of you are going to be upset about this line, and will come up with all sorts of bullshit rationalizing and excuses for why the rally was appropriate, and all I will say to you is: make better life choices, and maybe, take a serious look at yourself in the mirror and ask "what the fuck happened to me?"

And, yes, such a song on such a day at such a stupid rally certainly feels inappropriate to anyone with even the slightest sense of decorum or empathy. But, for Williams, it went a bit further. Because, as reporter Eriq Gardner notes, unlike most popular musicians, Pharrell ditched ASCAP four years ago and moved all his music to Irving Azoff's "Global Music Rights" organization (GMR). GMR is kind of sketchy, and feels like a giant shakedown play for internet sites, but, ignoring that, what is known is that neither the venue nor the campaign have a license from GMR.

And that enabled Pharrell's lawyers to send quite the letter to President Trump. It doesn't just talk about the infringement, but the sheer insanity of playing such a song on such a day.

If you can't read that, it says:

Dear Mr. Trump:

We write you on behalf of our client, Pharrell Williams, composer and performer of the hit song "Happy." On the day of the mass murder of 11 human beings at the hands of a deranged "nationalist," you played his song "Happy" to a crowd at a political event in Indiana. There was nothing "happy" about the tragedy inflicted on our country on Saturday and no permission was granted for your use of this song for this purpose.

Pharrell Williams is the owner of the copyright in "Happy," with the exclusive right to exploit same. Pharrell has not, and will not, grant you permission to publicly perform or otherwise broadcast or disseminate any of his music. The use of "Happy" without permission constitutes copyright infringement in violation of 17 U.S.C. § 501. This also violates Pharrell's trademark rights under the Lanham Act.

I guess it's possible that Trump could claim fair use in the use of the song, but I doubt that would fly. The trademark claim seems incredibly unlikely, but if the lawyers actually pursued the copyright claim, it seems like they'd have a chance to make it stick.

Filed Under: campaigns, copyright, donald trump, happy, music, performance license, pharrell williams, political rallies, rallies, trademark
Companies: global music rights, gmr

El-P: We Make Our Music Available For Free And Trust Our Fans To Support Us, And We Always Will

from the good-guys dept

In the pantheon of massively talented musical acts that also get and embrace the power of the internet, of using free music to make money, and of emergent business models, the folks behind Run The Jewels stand particularly tall. The duo, Killer Mike and El-P, have managed to make themselves household names through a combination of freely available music, a positive and often humorous level of interaction with their fans, and the kind of forthright public statements that create a bond with those that follow them. It's all so perfectly well done that you would think Run The Jewels was following some kind of a script, but it is pleasantly obvious that these are just really good guys who happen to also make fantastic music. They also occasionally, and far too infrequently, write blog posts, including for Techdirt.

The most recent version of all of this started with a Twitter user complaining to El-P that he or she typically listens to RTJ on Spotify and had no idea where to get their albums. Another Twitter account piped up confirming that, like the rest of the RTJ catalog, the albums were available for free download on the group's website. That same Twitter account mentioned that he also bought the albums through iTunes purely out of a desire to support RTJ. This, of course, happens quite frequently, which is virtually ignored by the "Piracy is killing music, argghghgh!" crowd.

What doesn't happen as frequently is what came next from El-P.

And we always will. That's how you know when a philosophy has moved beyond a tryout of a gimmick and into a more dogmatic adoption of a business philosophy. And there can no longer be any doubt that behaving this way is simply good business. However, I'll be damned if all of this doesn't come off far more genuine than had it come out of a boardroom of suits looking to maximize profits. The truth is that El-P is just a really, really good dude. This is the impression one gets seeing interactions like this. And it fosters a bond with the community of fans of RTJ.

There are many more replies like that. And why not? Why wouldn't a musical act being human and awesome to its fans not foster a closer bond and desire to support that act? That seems like common sense to me, even as it eludes far too much of the music industry.

Filed Under: copyright, el-p, fans, free, music, run the jewels, sharing

9th Circuit Never Misses A Chance To Mess Up Copyright Law: Reopens Led Zeppelin 'Stairway To Heaven' Case

from the copyrightable-elements dept

Well, this is depressing. Back in 2016, we wrote about yet another copyright infringement case where we feared the impact on creativity in music. At issue was whether or not the band Led Zeppelin had infringed on the copyright of Randy Wolfe (aka Randy California) who had written the song Taurus for his band Spirit. Taurus has some similarities to Led Zeppelin's classic "Stairway to Heaven":

If you listen to that, you might think that the two songs sound pretty similar at points, and thus perhaps Led Zeppelin copied Taurus, violating the copyright on the song. But things are much more complicated than that. For example, it certainly could be argued that both of those songs actually sound remarkably similar to J.S. Bach's Bouree In E Minor, which is absolutely in the public domain:

As that video shows, the same basic melody can be found in a bunch of songs, including Henry Purcell's "Dido's Lament" (which predates even the Bach song), as well as Rogers and Hart's "Funny Valentine," Arthur Hamilton's "Cry Me A River" and a bunch of other songs, which all predate Taurus. This is, of course, the nature of music. There are themes and melodies and concepts and cord structures that get repeated over time, sometimes by accident, sometimes through homage, and sometimes by coincidence.

So when it comes to copyright it's important to look at what is actually covered by the copyright, which goes way beyond "hey, do these songs sound similar?" Unfortunately, many courts have messed this up over the years, including a few that came up with a ridiculous "substantial similarity" test, rather than actually comparing the copyright-protected elements of the songs. One such case that got this wrong is the infamous Blurred Lines case, in which even though the copyright-protected elements of two songs were totally different, it was decided that there was copyright infringement.

That's why we were pretty stunned, back in the summer of 2016 that a jury sided with Led Zeppelin. Part of the reason why that worked was that the jury was not allowed to just listen to the two songs, because the copyright on the sound recordings was not at issue (indeed, at the time of Taurus, there was no federal copyright to be had on the sound recording). Thus, they had to look at what was actually covered by copyright, which is much more limited. Of course, this is the correct way to do things, because if we're looking for copyright infringement, it seems ridiculously unfair to allow the jury to be influence by content that is not protectable under copyright.

So, the end result in the district court was the right one. But... this is the 9th Circuit we're talking about, and when it comes to copyright, it will always figure out how to make things worse. And that's what it's done by vacating the original order and ordering a brand new trial, with conditions that will make life much more difficult for Led Zeppelin (hat tip to Eriq Gardner at The Hollywood Reporter for spotting this first).

The ruling, by Judge Richard Paez, should be anger-inducing for copyright nerds. It basically picks up on a few earlier cases that make the nonsensical claim that if you have greater "access" to the earlier work, a copyright plaintiff needs to show less similarity to argue copyright infringement:

In cases such as this one where there is no direct evidence of copying, the plaintiff “can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying.” Rentmeester, 883 F.3d at 1117. “When a high degree of access is shown,” a lower amount of similarity is needed to prove copying. Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1178 (9th Cir. 2003) (citation omitted). “To prove copying, the similarities between the two works need not be extensive, and they need not involve protected elements of the plaintiff’s work. They just need to be similarities one would not expect to arise if the two works had been created independently.”

This makes literally no sense under the law. How can anyone say that you "need not involve protected elements of the plaintiff's work." If you're not involving the part actually protected by copyright, how the hell can you claim there's copyright infringement? But, because of 9th Circuit precedents, the court notes that only applies to the so-called "extrinsic" test for infringement, but there must also be an "intrinsic" test, in which we ignore all that and go with our gut feeling on whether or not the songs sound kind of similar. Which, of course, is madness.

To prove “unlawful appropriation” a higher showing of substantial similarity is needed. Id. The works must share substantial similarities and those similarities must involve parts of the plaintiff’s work that are original and therefore protected by copyright. Id. To determine whether an allegedly infringing work is substantially similar to the original work, we employ the extrinsic and intrinsic tests. The extrinsic test is an objective comparison of protected areas of a work. This is accomplished by “breaking the works down into their constituent elements, and comparing those elements” to determine whether they are substantially similar. Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). Only elements that are protected by copyright are compared under the extrinsic test. Id. The intrinsic test is concerned with a subjective comparison of the works, as it asks “whether the ordinary, reasonable person would find the total concept and feel of the works to be substantially similar.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000)

From there, the court makes a slightly stronger argument, that even if you have non-protectable components, the arrangement itself can be covered by copyright (even if you're arranging public domain music -- so long as it's done in a new and novel manner). And here, the ruling says that the lower court failed to inform the jury that the arrangement alone could be covered by copyright, even if the elements were not:

Nowhere did the jury instructions include any statements clarifying that the selection and arrangement of public domain elements could be considered original. Jury Instruction No. 20 compounded the errors of that omission by furthering an impression that public domain elements are not protected by copyright in any circumstances. This is in tension with the principle that an original element of a work need not be new; rather, it need only be created independently and arranged in a creative way. See Feist Publ’ns, 499 U.S. at 345, 349; see also Swirsky, 376 F.3d at 849. Jury Instruction Nos. 16 and 20 in combination likely led the jury to believe that public domain elements—such as a chromatic scale or a series of three notes—were not protectable, even where there was a modification or selection and arrangement that may have rendered them original.

While this may seem reasonable on its face, it's complicated greatly by the fact that the court also rules that, unlike in the first trial, the court should allow the actual sound recordings to be played for the jury. While it first notes that (contrary to the plaintiff's wishes), the deposit copy of the song represents the actual copyright covered material rather than the sound recording, the jury should be able to hear the sound recording (which, again, includes plenty of non-copyrightable material). The district court, correctly, worried that the jury would likely not be able to separate out the copyright-protect and non-copyright protected material. But the appeals court doesn't seem to care:

The district court excluded the sound recordings under Federal Rule of Evidence 403, finding that “its probative value is substantially outweighed by danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury . . . .” Fed. R. Evid. 403. Here, the district court abused its discretion in finding that it would be unduly prejudicial for the jury to listen to the sound recordings in order to assess Page’s access to “Taurus.” The district court acknowledged that the recordings were relevant to whether Page had access to “Taurus,” as Page would have heard and allegedly copied a recording of “Taurus.” The district court was concerned, however, that allowing the jury to hear the recordings would confuse them.

The appeals court decides that it's okay for the jury to hear the recordings... if it's for the purpose of observing Jimmy Page listening to the recordings. Really.

Although the jury could still draw conclusions and inferences from Page’s demeanor during his testimony, allowing the jury to observe Page listening to the recordings would have enabled them to evaluate his demeanor while listening to the recordings, as well as when answering questions. Limiting the probative value of observation was not proper here, as the risk of unfair prejudice or jury confusion was relatively small and could have been reduced further with a proper admonition. For example, the district court could have instructed the jury that the recordings were limited to the issue of access and that they were not to be used to judge substantial similarity.

Either way, the case is going back to the lower court for a new round, and now that the jury is going to get to hear the songs, all bets are off on how this turns out. One hopes that with strong jury instructions a jury might recognize how limited the actual copyright is on Taurus, but given the results of the Blurred Lines case, that seems like a long shot. Frankly, it wouldn't be that surprising to see this case settle before a new trial actually happens.

Filed Under: copyright, jimmy page, led zeppelin, music, randy california, randy wolfe, robert plant, similarity, spirit, stairway to heaven, taurus

Plagiarists Or Innovators? The Led Zeppelin Paradox Endures

from the copying-as-innovation dept

Fifty years ago – in September 1968 – the legendary rock band Led Zeppelin first performed together, kicking off a Scandinavian tour billed as the New Yardbirds.

The new, better name would come later that fall, while drummer John Bonham’s death in 1980 effectively ended their decade-defining reign. But to this day, the band retains the same iconic status it held back in the 1970s: It ranks as one of the best-selling music acts of all time and continues to shape the sounds of new and emerging groups young enough to be the band members’ grandchildren.

Yet, even after all this time – when every note, riff and growl of Zeppelin’s nine-album catalog has been pored over by fans, cover artists and musicologists – a dark paradox still lurks at the heart of its mystique. How can a band so slavishly derivative – and sometimes downright plagiaristic – be simultaneously considered so innovative and influential?

How, in other words, did it get to have its custard pie and eat it, too?

As a scholar who researches the subtle complexities of musical style and originality as well as the legal mechanisms that police and enforce them, such as copyright law, I find this a particularly devilish conundrum. The fact that I’m also a bassist in a band that fuses multiple styles of music makes it personal.

A pattern of ‘borrowing’

For anyone who quests after the holy grail of creative success, Led Zeppelin has achieved something mythical in stature: a place in the musical firmament, on its own terms, outside of the rules and without compromise.

When Led Zeppelin debuted its eponymous first album in 1969, there’s no question that it sounded new and exciting. My father, a baby boomer and dedicated Beatles fan, remembers his chagrin that year when his middle school math students threw over the Fab Four for Zeppelin, seemingly overnight. Even the stodgy New York Times, which decried the band’s “plastic sexual superficiality,” felt compelled, in the same article, to acknowledge its “enormously successful … electronically intense blending” of musical styles.

Yet, from the very beginning, the band was also dogged with accusations of musical pilfering, plagiarism and copyright infringement – often justifiably.

The band’s first album, “Led Zeppelin,” contained several songs that drew from earlier compositions, arrangements and recordings, sometimes with attribution and often without. It included two Willie Dixon songs, and the band credited both to the influential Chicago blues composer. But it didn’t credit Anne Bredon when it covered her song “Babe I’m Gonna Leave You.”

The hit “Dazed and Confused,” also from that first album, was originally attributed to Zeppelin guitarist Jimmy Page. However in 2010, songwriter Jake Holmes filed a lawsuit claiming that he’d written and recorded it in 1967. After the lawsuit was settled out of court, the song is now credited in the liner notes of re-releases as “inspired by” Holmes.

The band’s second album, “Led Zeppelin II,” picked up where the first left off. Following a series of lawsuits, the band agreed to list Dixon as a previously uncredited author on two of the tracks, including its first hit single, “Whole Lotta Love.” An additional lawsuit established that blues legend Chester “Howlin’ Wolf” Burnett was a previously uncredited author on another track called “The Lemon Song.”

Musical copyright infringement is notoriously challenging to establish in court, hence the settlements. But there’s no question the band engaged in what musicologists typically call “borrowing.” Any blues fan, for instance, would have recognized the lyrics of Dixon’s “You Need Love” – as recorded by Muddy Waters – on a first listen of “Whole Lotta Love.”

Dipping into the commons or appropriation?

Should the band be condemned for taking other people’s songs and fusing them into its own style?

Or should this actually be a point of celebration?

The answer is a matter of perspective. In Zeppelin’s defense, the band is hardly alone in the practice. The 1960s folk music revival movement, which was central to the careers of Baez, Holmes, Bredon, Dixon and Burnett, was rooted in an ethic that typically treated musical material as a “commons” – a wellspring of shared culture from which all may draw, and to which all may contribute.

Most performers in the era routinely covered “authorless” traditional and blues songs, and the movement’s shining star, Bob Dylan, used lyrical and musical pastiche as a badge of pride and display of erudition – “Look how many old songs I can cram into this new song!” – rather than as a guilty, secret crutch to hold up his own compositions.

Why shouldn’t Zeppelin be able to do the same?

On the other hand, it’s hard to ignore the racial dynamics inherent in Led Zeppelin’s borrowing. Willie Dixon and Howlin’ Wolf were African-Americans, members of a subjugated minority who were – especially back then – excluded from reaping their fair share of the enormous profits they generated for music labels, publishers and other artists.

Like their English countrymen Eric Clapton and The Rolling Stones, Zeppelin’s attitude toward black culture seems eerily reminiscent of Lord Elgin’s approach to the marble statues of the Parthenon and Queen Victoria’s policy on the Koh-i-Noor diamond: Take what you can and don’t ask permission; if you get caught, apologize without ceding ownership.

Led Zeppelin was also accused of lifting from white artists such as Bredon and the band Spirit, the aggrieved party in a recent lawsuit over the rights to Zeppelin’s signature song “Stairway to Heaven.” Even in these cases, the power dynamics were iffy.

Bredon and Spirit are lesser-known composers with lower profiles and shallower pockets. Neither has benefited from the glow of Zeppelin’s glory, which has only grown over the decades despite the accusations and lawsuits leveled against them.

A matter of motives

So how did the band pull it off, when so many of its contemporaries have been forgotten or diminished? How did it find and keep the holy grail? What makes Led Zeppelin so special?

I could speculate about its cultural status as an avatar of trans-Atlantic, post-hippie self-indulgence and “me generation” rebellion. I could wax poetic about its musical fusion of pre-Baroque and non-Western harmonies with blues rhythms and Celtic timbres. I could even accuse it, as many have over the years, of cutting a deal with the devil.

Instead, I’ll simply relate a personal anecdote from almost 20 years ago. I actually met frontman Robert Plant. I was waiting in line at a lower Manhattan bodega around 2 a.m. and suddenly realized Plant was waiting in front of me. A classic Chuck Berry song was playing on the overhead speakers. Plant turned to look at me and mused, “I wonder what he’s up to now?” We chatted about Berry for a few moments, then paid and went our separate ways.

Brief and banal though it was, I think this little interlude – more than the reams of music scholarship and journalism I’ve read and written – might hold the key to solving the paradox.

Maybe Led Zeppelin is worthy because, like Sir Galahad, the knight who finally gets the holy grail, its members’ hearts were pure.

During our brief exchange, it was clear Plant didn’t want to be adulated – he didn’t need his ego stroked by a fawning fan. Furthermore, he and his bandmates were never even in it for the money. In fact, for decades, Zeppelin refused to license its songs for television commercials. In Plant’s own words, “I only wanted to have some fun.”

Maybe the band retained its fame because it lived, loved and embodied rock and roll so absolutely and totally – to the degree that Plant would start a conversation with a total stranger in the middle of the night just to chat about one of his heroes.

This love, this purity of focus, comes out in its music, and for this, we can forgive Led Zeppelin’s many trespasses.

Aram Sinnreich, Associate Professor of Communication Studies, American University School of Communication

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Filed Under: copying, culture, innovation, led zeppelin, music

That Bizarre Trademark Suit Between Music Promoters Over An 'Ultra' Trademark Nobody Owned Is Still Going On

from the not-so-swift-justice dept

I'll forgive the average reader here if they cannot recall the post we did nearly a year and a half ago about a trademark dispute between Worldwide Entertainment Group Inc. of Florida and Adria MM Productions Ltd. of Croatia. It's by far my favorite trademark story ever. It has all the hallmarks of a typical trademark bullying story that we would cover: from a fairly generic term ("Ultra") in a really broad industry (music festivals) being licensed for use overseas in Europe by Worldwide to Adria, only to have the former ratchet up its licensing fee and control demands over the trademark it had on the term "Ultra." Pretty standard fare, even when we get to the part where Worldwide sends Adria notice that it is in breach of the licensing agreement and demanding the stoppage of all use of the term "Ultra."

But where this all turned into my favorite trademark story ever was when Adria MM sued Worldwide, stating this:

AMM says that at that time it discovered that Ultra didn’t have any rights over proprietary marks in Europe, specifically in Croatia.

Yes, according to Adria, Worldwide didn't actually have registered trademarks for "Ultra" in Europe at all, making the licensing arrangement it first signed and then tried to use as a weapon against Adria a brilliant piece of bluffery. What should be fairly clear, however, is that the entire basis of the licensing contract was built upon a lie. With that clearly in mind, Adria moved to have this all decided in the summary judgement phase.

And, because everything about this story is designed to be as funny as possible. shortly after filing its suit, there was a scramble at the trademark offices that honestly should have been accompanied by an instrumental replaying of Yakety Sax.

Five days after the filing the lawsuit, both companies filed to register the trademark “within 34 minutes of each other,” as quoted in the court ruling, with Adria filing in Croatia and Worldwide with the European Union. Both companies protested the filing of the other, and after filing legal actions in the state of Florida, both requested summary judgment in their favor.

And both were denied that summary judgment. In the order, the court relies on the notion that there are material facts in dispute regarding the validity of the original licensing agreement. Summary judgment is only supposed to be granted when material facts are not in dispute and the parties simply want a ruling based on those facts. What makes this odd, however, is that the order's background section appears to accept as fact that the Worldwide did not hold any valid trademarks under the "Ultra" terms in the EU or Croatia specifically for the entire term of the original contract. The only fact that appears to not be in question is whether that agreement is valid anyway. Which... how? If it was entered into under false pretenses, it's unclear exactly how that agreement could be valid.

Regardless, it appears this will go to a jury trial where, if common sense prevails, it seems unlikely things will go well for Worldwide Entertainment Group.

Filed Under: croatia, europe, jurisdiction, music, promoters, trademark, ultra
Companies: adria mm productions, worldwide entertainment group

Only 12% Of Music Revenue Goes To Actual Artists

from the rent-seeking-is-profitable dept

Back in 2010, we posted an infographic from The Root showing just how little money that was spent on music actually went to the artist:

In 2015, using a report put out by Ernst & Young, we put together our own graphics showing how much of streaming went to the actual artists:

You may be noticing a pattern? Very little of the money being made actually goes to the artist. Now we have even more data on this. Citibank recently released a massive and incredibly thorough report on the entire music industry showing how and where the money is made. There's lots of interesting and useful information in the report, but the headline grabbing fact is that musicians end up with just about 12% of global music revenue. As I said, the report is incredibly thorough (and a really useful read if you want to get a sense of just how convoluted and complex the music business really is), but the key is that there was ~$43 billion spent on music in 2017. Approximately $25 billion of that went to everyone (outside of the labels) who helped make the music available: digital streaming services, retail stores, concert venues:

That leaves $18.2 billion in money distributed out to the labels. But of that amount, only about $5 billion actually goes to artists, which means right around 12% goes to artists:

Of course, it's especially notable that a significant chunk of that revenue going to artists actually comes from... live performances:

This shouldn't be a surprise. Hell, we've spent the better part of two decades here talking about how artists need to embrace "scarcities" where they can make money, with live shows being a big part of that. And we kept having people from the recording industry scream about us saying that, but the numbers above don't lie. Citibank notes that one of the big reasons live drives so much artist revenue: You don't have the same amount of monopolistic middlemen sucking the artists dry:

If we divide artists’ incomes into four groups — Concerts, Music Platforms (Spotify, Apple, YouTube, Sirius, FM radio), Music Publishing, and Music Sales (CD, digital downloads) — it’s clear that concerts have, by a wide margin, contributed most significantly to the growth in an artist’s income. That’s because music labels don’t directly participate in concert economics. But, they do participate in the revenues collected by the various music platforms (like Spotify, Apple, Sirius and YouTube).

That statement isn't 100% accurate, as many artists these days are signed to so-called 360 contracts, in which some of their live revenue also goes to the labels, but the general concept holds. In short, reading through this report, you see that the entire music ecosystem is a huge mess. And it's not hard to see how this developed. Basically with each new layer of innovation, rather than rethinking how we handle music and copyright, we simply slapped on another set of royalties and rights. That's why there are so many different kinds of royalties that have to be paid to do basically anything in music (synch rights, mechanicals, performance rights and more for each the sound recording and the composition). In the Citibank report they show this nice graphic, which I'd argue overly simplifies the reality:

But each of these really seems to be a use of copyright to prop up another set of middlemen, and remove the effects of competition and innovation from ever touching them. And so we keep building this ever more convoluted house of cards, built on a giant mess of a copyright system, where massive inefficiencies mean that these propped up middlemen end up taking home most of the money.

And, as the Citibank report nicely summarizes, thanks to the internet, artists could connect much more directly with fans and take home a lot more money:

Oh, and the real kicker in all of this? For years, the record labels (and some musicians) have been screaming about how piracy is to blame for people no longer spending on music. Except, of course, that's hogwash. As we pointed out a few years back with our very own Sky is Rising report (and, to a lesser extent, with our Carrot or the Stick? report) there's still plenty of spending happening on music. Indeed, the Citibank report shows consumer spending at an all time high:

In short, lots of money is still going towards music, but thanks to a ridiculous historical legacy of copyright law that kept piling on new rights, rather than cleaning out obsolete ones, there's a massive inefficient infrastructure whose only purpose basically seems to be to collect a bunch of the money for themselves, leaving 12 cents on the dollar for the actual artists.

Filed Under: artists, distribution, inefficiencies, middlemen, music, musicians, revenue