David Bowie's Legacy On Copyright And The Future Of Music

from the exciting-times,-if-you're-looking-forward,-rather-than-back dept

Amid the steady stream of "hot takes" the past few weeks on the legacy of the late great David Bowie, The Washington Post's Robert Gebelhoff dug up some of the rock legend's contrarian views on copyright, if only to rebuke them thoroughly.

Gebelhoff's piece cited a 2002 interview Bowie gave to The New York Times in which he prophesied: "I'm fully confident that copyright...will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing…It's terribly exciting."

Exciting though it may have been, Bowie's prediction obviously has not come to pass, for which Gebelhoff says we should be thankful. In his piece, he notes that strong copyright laws "play an essential role in our creative economy – and have done so for centuries." He cites as evidence a recent Stanford University/NBER study on how differing laws in Italian city-states led to more operas being produced where copyright was protected.

Bowie has long been an innovator and music visionary, experimenting with early ways to use the Internet to "cybercast" concerts and connect with fans. But it's important that Bowie wasn't necessarily seeking the death of copyright (after all, he used it to make a living). Instead, he was paying heed to what digital media already had done to revolutionize copyright-centered industries.

What he got right was detecting traditional copyright industry's anxiety – the same anxiety that has led them to push successfully for copyright terms to be extended by nearly 580 percent over the last 200 years. Mickey Mouse famously has enjoyed several retroactive copyright term extensions since Walt Disney's death, though Walt has yet to take advantage of this added incentive.

So why would Bowie, whose fortune and fame owed so much to the music industry, be excited about the end of copyright? The answer is straightforward: as a working, successful musician and producer, he knew as well as anyone that unlimited copyright protection could hinder creation, as well as remunerate it. If you're a fan of Bowie's "Young Americans," you know that part of its power as a song derives directly from its unembarrassed quotation of the Beatles song "A Day in the Life."

While copyright didn't disappear in the decade since Bowie's interview, Bowie was in many ways right about the impending shakeup of the industry. More and more consumers, particularly millennials, are listening to their music on demand through a streaming subscription, rather than purchasing copies a la carte. Remix has become a central technique for new creativity. And heavy-handed copyright can get in its way. Look, for instance, at what future presidential candidate Kanye West did with Ray Charles' "I Got a Woman." Bowie's vision that "music itself is going to become like running water or electricity" turned out to be pretty accurate.

This trend has led to sharply declining revenues from physical sales (except for vinyl, which is doing fine, thanks to hipsters) and a steadily increasing share for streaming. Digital downloads are still popular and continue to represent a major revenue source for now. As physical formats have fallen out of favor, as Bowie perhaps foresaw, the industry experienced a period of sharp disruption.

The result has been not just depressed global revenues, but also a whole apparatus of production, distribution and retail falling away. As a 2015 study by Midia observed, the narrative of "music industry decline is a label phenomenon." Which echoes what Bowie saw coming in 2002: "I don't even know why I would want to be on a label in a few years, because I don't think it's going to work by labels and by distribution systems in the same way."

Of course, the role of our copyright system is not to protect established industries from disruption. Policymakers shouldn't protect the record store from Apple or the bookstore from Amazon. Our nation's founders gave Congress a mandate to use copyright to "promote the Progress of Science and useful Arts." That is, to provide the carrot to spur artistic creation. If we take copyright "incentives" too far, they can undermine artistic freedom by imposing limits on other forms of creative expression and uses of tangible property.

Even the opera study Gebelhoff cites in his piece acknowledges this, as its authors write that "there is no clear evidence" that copyright extension beyond the author's life span creates meaningful incentives. In fact, they suggest it has little effect "beyond the first five years." In an article about the study, New York University law professor Christopher Jon Sprigman notes that: "[this] conclusion is particularly important because our contemporary debate is usually not whether to have copyright at all, but rather whether to extend already very long copyright terms."

Bowie was wrong that copyright would end, but he was right that copyright as we know it is under threat. Its foundation, built for an analog age, increasingly struggles to function in the digital one. And its market, warped by decades of heavy-handed government intervention and industry carve-outs, doesn't know how to operate freely anymore.

That's why substantial reforms will be inevitable. As Congress slowly moves in that direction, it should be mindful of this lesson: stronger copyright laws don't automatically incentivize more creative freedom. In fact, they often come at its expense.

Filed Under: adapting, changes, copyright, david bowie, music

Copyright Question: Does David Bowie Get The Copyright On Computer Generated Lyrics?

from the have-fun-with-this-one,-law-profs dept

There have been a number of copyright-related discussions spurred by the unfortunate passing of David Bowie, but here's one more that might make for an interesting law school exam. Matthew Braga, over at Vice's Motherboard, has a really wonderful story about how Bowie used a lyric writing word randomizer app called Verbasizer in writing his album Outside in the mid-1990s. He includes this clip from a documentary about it: In short, it's a digitized version of the famed "cut up technique" that has been used by creators for decades. Bowie had previously been known to use a more traditional method of literally cutting up pieces of words on paper. But in the 90s he teamed up with Ty Roberts, who later went on to found Gracenote, to create a software version that would randomize words to create possible lyrics.

Roberts described Bowie as taking multiple word sources, from the newspaper to hand-written words, cutting them up, throwing them into a hat and then arranging the fragments on pieces of paper. He'd then cross out material that didn't fit to create lines of lyrics.

Roberts suggested he could create software for Bowie to speed up the process and did so for use on a Mac laptop. The app was called the Verbasizer and you can see it in use by Bowie in the video above in which he refers to a "friend" aka Ty Roberts. It allowed for different input methods including simply typing in words and then arranged them in columns which could be restricted to nouns, verbs, adjectives, etc. Each column could be weighted and have multiple words if desired. With a push of a button lyrics would then be created.

The Verbasizer was used in the creation of "Outside" which employed additional creative techniques for bypassing one's usual methods of artmaking that fall into patterns that are otherwise difficult to avoid. Roberts had the unique experience of observing Bowie's working methods as he went from the computer to the mic with new material sometimes in just a minute.

That's kind of cool... but it leads to a bit of a copyright question. We've already been discussing how copyright doesn't apply to works created by animals, but a much bigger fight concerns whether or not it applies to works created by computers. The official answer is no -- as with the monkey situation, copyright requires a human author. But given the rise in computer-generated content -- text, music, videos and more -- it's one that is going to show up in court.

So, then, are Bowie's lyrics copyrightable at all? It's not clear that enough is really known to make that call entirely. On the "yes, copyrightable" side of the argument, you can claim that Bowie likely fed in the original texts used for the cut ups, giving some element of human authorship. And, also, he was responsible for finally choosing which algorithmicly generated lyrics to actually use. Finally, in at least some interviews, Bowie admits that the cut up technique was often most useful in inspiring him, rather than necessarily giving him the final lyrics. That's probably enough to say he has the copyright on those lyrics. But, at the very least, it does seem open to someone challenging that. And these issues are only going to become a bigger issue as more and more works are generated by computers, with less and less human input at all. And, once again, Bowie appears to have been on the cutting edge...

Filed Under: computer generated, copyright, david bowie, lyrics, ty roberts, verbasizer

Why Radio Stations Probably Couldn't Just Play David Bowie Music As A Tribute: Copyright Law Is Messed Up

from the just-the-latest-example dept

People are quite reasonably upset by the news of David Bowie's passing, with lots of reminiscing and certainly tons of listening to his music. I certainly re-listened to a bunch of his music on Sunday night after hearing about Bowie's death. And, some, such as comedian Eddie Izzard, suggested that "every radio station" should just play David Bowie music for the day as a tribute:

Please could every radio station around the globe just play David Bowie music today - I think the world owes him that.

— Eddie Izzard (@eddieizzard) January 11, 2016

It's certainly a nice idea... but as lawyer Cathy Gellis points out, at least in the US, it's likely against copyright law for many radio stations. The specific issue has to do with those radio stations that also stream online. As you may or may not know, there are a set of rules that you need to follow to be considered a "non-interactive" webcaster, and among those are the "performance complement" rules:

1. No more than 4 tracks by the same featured artist (or from a compilation album) may be transmitted to the same listener within a 3 hour period (and no more than 3 of those tracks may be transmitted consecutively).
2. No more than 3 tracks from the same album may be transmitted to the same listener within a 3 hour period (and no more than 2 of those tracks may be transmitted consecutively).

That's not just something that SoundExchange came up with on its own. It's written directly into US Copyright law (at the bottom of the page). At some point, years ago, Congress (or, more likely, a recording industry lobbyist), wrote up rules that said online radio couldn't play too many songs in a row by a single artists, because of the ridiculous fear that if they could, no one would buy music any more.

Now, the rules do say that the performance complement "may only be violated if the service has received specific waivers from the owner of the sound recording copyright" -- so it's possible that the copyright holder on Bowie's music could waive those rules, but it would have to be to a bunch of different radio stations, and it's unlikely they're going to do that.

So, once again, it seems that copyright law is getting in the way of what sounds like a perfectly lovely idea: creating a day-long tribute to David Bowie. No wonder he was so keen on having copyright go away entirely.

Filed Under: copyright, david bowie, eddie izzard, non-interactive stream, online radio, performance complement, radio, streaming radio
Companies: soundexchange

David Bowie Wasn't Just An Incredible Music Visionary, But An Internet & Business Model Visionary Too

from the rip dept

As I'm sure you've heard by now, famed musician David Bowie passed away yesterday at age 69 due to cancer. As someone who influenced so many people in so many different ways, it's great to see basically everyone celebrating his life and his music. But, given that this is Techdirt, I also thought that Bowie deserved a shoutout on topics that we discuss around here as well: Bowie wasn't just an amazing music visionary, but he was similarly visionary about the music business and the internet as well.

All the way back in 1996, he was the first major musician to release music only on the internet, launching the single for "Telling Lies" as a direct download off of his website, and announcing it in an online chat session. Yes, nearly 20 years ago, Bowie embraced internet distribution for his music.

Then, in 1997, he went way beyond basically any other music business model experiment by issuing Bowie Bonds, creating a financial instrument that was backed by the royalties from his music, without losing control of the actual music itself.

That same year, he also became the first major musician to "cybercast" a live concert online. Other musicians had tried similar things around that time, but Bowie was by far the most well-known (though the technology basically sucked for all of them, including Bowie).

Just a year later, in 1998, David Bowie launched BowieNet, his very own internet service provider (ISP), saying:

If I was 19 again, I’d bypass music and go right to the internet.

Again, that was 1998 -- the same year that Google was founded (and a little site called Techdirt first came online too, but we'll leave that aside for now).

By 2000, he was already talking about just how revolutionary the internet was going to be for music: There's so much good stuff in that interview. He talks about how he doesn't view himself in the music industry at all any more because of the way the industry works, and how much he just wants to do his own thing. And the internet is incredibly exciting to him. He talks about how he got into music because it was a rebellious thing to do, but then:

It had a sort of 'call to arms' feeling to it. This is the thing that will change things. It is a dead-dodgy occupation to have. It still produced signs of horror from people if you said 'I'm in rock and roll.'... Now it's a career opportunity. And the internet carries the flag of being subversive and possibly rebellious and chaotic and nihilistic.... Forget about the Microsoft element. The monopolies do not have a monopoly....

... I like the idea that there's a demystification process going on between the artist and the audience....

... I don't think we've even seen the tip of the iceberg. I think what the internet is going to do to society -- both good and bad -- is unimaginable. I think we're on the cusp of something exhilarating and terrifying....

... The actual context and the state of content is going to be so different to anything we can envisage at the moment – the interplay between the user and the provider will be so in simpatico it's going to crush our ideas of what mediums are all about.

... Artists like Duchamp were so prescient here – the idea that the piece of work is not finished until the audience comes to it and adds their own interpretation, and what the piece of art is about is the grey space in the middle. That grey space in the middle is what the 21st century is going to be all about.

That same year, Bowie also launched BowieBanc, an online banking operation, that offered ATM cards and checks (with Bowie's image on them), exploring new ways of connecting with fans and building his own brand online.

Given all this, it's hardly surprising that in 2002, he gave an interview to the NY Times in which he predicted the end of copyright altogether, as well as record labels, as they would no longer serve a useful purpose:

His deal with Sony is a short-term one while he gets his label started and watches the Internet's effect on careers. ''I don't even know why I would want to be on a label in a few years, because I don't think it's going to work by labels and by distribution systems in the same way,'' he said. ''The absolute transformation of everything that we ever thought about music will take place within 10 years, and nothing is going to be able to stop it. I see absolutely no point in pretending that it's not going to happen. I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing.''

''Music itself is going to become like running water or electricity,'' he added. ''So it's like, just take advantage of these last few years because none of this is ever going to happen again. You'd better be prepared for doing a lot of touring because that's really the only unique situation that's going to be left. It's terribly exciting. But on the other hand it doesn't matter if you think it's exciting or not; it's what's going to happen.''

It hasn't totally played out the way he expected, but there's no doubt that Bowie's ability to be a visionary wasn't merely limited to the incredible music he wrote, performed and recorded, but to the internet and music/internet business models as well.

Filed Under: business models, copyright, david bowie, internet, music

Chris Hadfield's Outer Space Version Of Space Oddity Is Back... But It Still Never Should Have Gone Away

from the copyright-law-is-ridiculous dept

A year and a half ago, we wrote about the copyright questions related to Canadian astronaut Chris Hadfield recording an astounding cover version of the David Bowie classic "Space Oddity" while actually in space on the International Space Station. We noted the specific copyright issues were mostly unimportant, since Bowie had signed off on the project. Then, back in May of this year, we were taken by surprise when we found out that the video was coming down because the agreement with Bowie was only for a one-year license (Bowie, by the way, in 2002 predicted that copyright would "no longer exist" by 2012).

Today, Hadfield announced that Bowie has once again agreed to allow the video to return to its official YouTube spot (unofficial copies were all over the place). Hadfield actually discusses some of the copyright issues, and notes that getting the rights to put it back took quite a bit of time.

Thus it was with some regret that we took the Space Oddity video off YouTube last May. David Bowie and his publisher had been very gracious. They had allowed his work, his intellectual property, to be made freely available to everyone for a year, and had in fact worked with us and the Canadian Space Agency to make it happen. There was no rancour, and we removed it from YouTube to honour that agreement.

This sequence wasn’t anyone’s fault. The day we took the video down we started to work again to get permission to get it re-posted. But the legal process is careful and exacting, and thus takes time. Despite countless on-line expressions of frustration and desire, it wasn’t anyone’s ill-will or jealousy that kept this version of Oddity off YouTube. It was merely the natural consequence of due process.

This time around, Bowie and his publishers have agreed to a two-year license, meaning we may be going through this ridiculous process again in 2016:

And now, we are so happy to be able to announce that my on-orbit cover of Space Oddity is back up on YouTube. This time we have a new 2-year agreement, and it is there, for free, for everyone. We’re proud to have helped bring Bowie’s genius from 1969 into space itself in 2013, and now ever-forward. Special thanks to Onward Music Ltd, to the Canadian Space Agency and NASA, to musicians Emm Gryner and Joe Corcoran, to videographer Andrew Tidby, to my son Evan, and mostly to Mr. David Bowie himself.

Once again, this process seems silly and unnecessary. If everyone is so happy about this -- and it's reinvigorated the song and attracted plenty of new interest in it -- why not grant a perpetual license? What possible harm is done in granting a perpetual license so that this process doesn't have to be replicated every few years -- other than to the billable hours of the various lawyers who have to negotiate such a silly thing? Copyright defenders often point to the need for copyright to enable agreements like this, but it seems to be enabling a ridiculously inefficient process, rather than making things easier.

In the meantime, here you go... for at least two more years:

Filed Under: chris hadfield, copyright, culture, david bowie, space oddity

Commander Hadfield's Amazing Cover Of David Bowie's Space Oddity Disappears Today, Thanks To Copyright

from the copyright:-making-culture-disappear-since-1709 dept

A year ago, we wrote a whole post looking at the copyright questions raised by Canadian astronaut, Commander Chris Hadfield, doing a cover version of David Bowie's "Space Oddity," along with an astounding music video in space, as he prepared to return to earth. Hadfield, for months, had been a great ambassador for the space program, using a variety of social media to communicate with folks back on the planet about what his day was like. The "Space Oddity" video just cemented his place as a key figure helping to generate interest in the space program through regular public communications with everyone in a very accessible way.

In our post, we noted that while the copyright issues were complicated, thankfully, it didn't really matter "because after a bunch of back and forth negotiations, they got all the permissions they needed directly from David Bowie." Except, as we find out today, that's not fully true. Because Commander Hadfield posted on Twitter this morning that today is the last day for the video online, because they only had a license to use it for one year. As I write, the video is still online, so watch it soon. It's got over 22 million views, and it's about to go away... because of copyright and the idea that everything needs to be licensed. This is really depressing, but it shows, once again, a situation that is destroying important cultural works, rather than helping to make them available. One would hope that David Bowie (and/or whoever else holds the copyrights in question) would recognize just how insanely bad this looks and would "grant" a perpetual free license to keep this video online. Bowie, himself, has had a rather progressive view of copyright for many years. Back in 2002, for example, Bowie declared that "I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing," and further noting that this is "terribly exciting."

Well, it's 12 years later, and copyright still exists, and the copyright on a Bowie song is about to destroy some culture. It would be nice if he was able to do something about it to stop that from happening.

And... now that there's no more license, the copyright questions come back into play... and the answer is that it's still "complicated." The copyright depends on where the video was filmed. Since the International Space Station has different sections in which technically different countries' laws apply. It is believed most or all of the video was filmed in the NASA section, meaning US laws apply. And while the US has compulsory licenses for cover songs, there may be some issues in that Hadfield modified the lyrics slightly (taking out the bit where Major Tom dies...). But, the bigger issue, unfortunately, is that sync licenses -- which allow you to "sync" music to video -- are not compulsory, and need to be licensed.

It is possible that someone could make a fair use argument here -- it's for non-commercial use, it's arguably transformative, it likely helps rather than harms the market for the original work -- but I'm not sure that would convince a judge.

Either way, I hope everyone can agree that it's just sad that this video is disappearing.

Filed Under: censorship, chris hadfield, copyright, culture, david bowie, licensing, space, sync licenses

If You Thought Copyright Was A Mess On Earth, What Does It Look Like In Space?

from the copyright-trolls.....-in.....-spaaaaaaaaaaaaace dept

Assuming you haven't been under a rock, there's a decent chance that you've seen astronaut Chris Hadfield's rendition of David Bowie's Space Oddity (with the lyrics conveniently changed to skip the whole dying in space part). The video was released just before Hadfield returned to earth, and completely fit with Hadfield's time on the International Space Station, where he became the world's first serious social media expert from space -- tweeting, Tumbling and YouTubing up a storm. But... filming a cover song and releasing it via YouTube from space had some people wondering: can you untangle the copyright issues here? Thankfully, Glenn Fleishman dug in over at the Economist (which, lamely, still refuses to name their writers, but now provides the "initials" of bloggers, so you can parse out who's who), and explained what a fine mess it is.

The punchline here is that it doesn't really matter, because after a bunch of back and forth negotiations, they got all the permissions they needed directly from David Bowie. But, assuming others start going up into space (yay, private space tourism), this issue is going to be raised sooner or later. Glenn points out that it's kind of messy, because different countries have very different compulsory licensing laws for cover songs, and there are no compulsories for sync licenses, which are needed to put the song to a video. There was also the issue of the International Space Station having different sections "owned" by different countries, and the official agreement says that it matters where creation happens -- so if the video had been done in all different parts of the space station, it potentially could have been a mess (though, it looks like it was all filmed in parts owned by NASA).

While there's no issue with this specific case, Glenn alerts us to a paper from a few years ago that lays out how copyright in space is about to get complicated:

The copyright issue may seem trivial, but the emergence of privately funded rocket launches, space tourism and space exploration hold the potential for more substantive disputes. If an astronaut were to travel to the Moon, an asteroid or Mars on a privately funded spacecraft, the situation would become knottier still, because the United Nations Outer Space Treaty of 1967 applies to countries, not companies or private individuals. J.A.L. Sterling, a London-based expert on international copyright law, anticipated all this in a 2008 paper, "Space Copyright Law: the new dimension", in which he lists dozens more potentially problematic scenarios that could arise, some seemingly risible at first. He asks what would have happened if, on a moon landing broadcast live by NASA across the world, two astronauts were overcome by emotion and burst into song—one covered by copyright. NASA might still be engaged in litigation 40 years later. More prosaically and immediately plausibly, Sterling considers space travellers who put copyrighted material from Earth on a server reachable from space, or engage in rights-violating "public performances" for crewmates. If the first person to walk on Mars decides to launch into "A Whole New World", the rights will need to have been cleared with Disney first.

Yeah, remember Rob Reid's funny sci-fi novel about copyright in space? Perhaps, like many sci-fi books, it will eventually turn out to be an accurate prediction of the future.

Filed Under: astronauts, chris hadfield, copyright, david bowie, internation, jurisdiction, space

Don't Try To Create An Illustrated Version Of A David Bowie Song... Or The Copyright Police Will Come After You

from the ground-control-to-major-tom dept

David Bowie has generally been one of the more forward-looking and forward-thinking musicians out there in understanding the digital revolution. Hell, it was nearly a decade ago when Bowie predicted the end of copyright, and said this was "terribly exciting." Of course, there are only about 10 months left for copyright to disappear for his original prediction to come true, so we're going to assume he was a bit aggressive on the timeline. But, on the whole, Bowie seems to have recognized how the digital world was changing the nature of copyright.

Unfortunately, it appears that whoever holds the copyright on some of his music doesn't quite feel the same way. Someone sent over this article from the Toronto Star, about how an illustrator named Andrew Kolb created some nice illustrations to go with the famous Bowie song Space Oddity, turning it into something of a "children's book." Now leaving aside the... um... oddity of a "children's book" about an astronaut who dies in space, the illustrations looked pretty cool.

Except, as that started to get attention, Kolb was threatened with an infringement claim. Of course, the Star fails Journalism 101, in that it never actually names the party who holds the copyright or who threatened the illustrator. One might come away from the article believing it's David Bowie, but I'm guessing it was someone else. In fact, I reached out to Kolb to find out who sent the takedown, and he said that he'd rather not say, because -- despite starting with a legal nastygram, he's apparently still in contact with the copyright holder, and discussing the possibility of doing something in an authorized manner.

Of course, when I started writing this post, there was actually still a YouTube video of the book and song up, but now if you click below, you see that it's been taken down with a copyright claim from "Onward Music Ltd," who does appear to hold the copyright on the song. Either way, Kolb, who did this purely for fun and not for profit, has pixelated out the name and stopped referring to it as Space Oddity. And seeing as the video is gone, here's an image from the pdf: Now if Kolb were actually going out and trying to sell this as a book without the copyright holder's approval, you can see where the concern might be. But, seeing as he just did this for fun, it's basically a form of fan art, which most copyright holders (though certainly not all) seem to appreciate. It's somewhat bizarre that such a nice bit of artwork for a song would bring out copyright threats. Kolb seems somewhat amused at the whole setup and the idea that a fun little project he did brought out legal guns, and he certainly doesn't seem upset by it. I still think the whole thing is unfortunate. He was helping to promote the song, not harming it.

Filed Under: andrew kolb, copyright, david bowie, fan art
Companies: onward music

No, David Bowie Is Not Responsible For The Financial Crisis

from the ziggy-stardust-and-the-spiders-from-wall-street dept

We've talked in the past about some of the many rather innovative efforts by David Bowie to come up with new business models. He's been a huge pioneer in embracing what new technologies allow -- and also new markets and financial opportunities. Of course, most famously, many years ago he "securitized" himself with Bowie Bonds, that allowed him to cash out quickly, while letting others buy into his future earnings. It was actually quite a creatively done idea. But now, ChurchHatesTucker points us to an article by Evan Davis suggesting that David Bowie and his Bowie bonds are at the heart of the financial crisis. This is -- let's just say it -- flat out ridiculous. Financial engineering and all sorts of derivatives were already coming into fashion, and in the unlikely event that Bowie's setup inspired others to securitize mortgages, you can pretty much guarantee that someone else would have come up with the same idea before too long, anyway. Taking a future cash flow and turning it into a security isn't an inherently bad idea, either. It has many good and useful attributes. The problem wasn't securitizing the debt, but using that process (and further engineering) to hide the underlying assets and the true risk associated with the offering. That was not David Bowie's fault by a long shot. It's really too bad that an "economics editor" would confuse the basic concept of securitizing future cash flows with abusing that process to hide actual risk. And dragging David Bowie and his innovations down along with such a confusion doesn't help anyone.

Filed Under: david bowie, financial crisis, securitization