Saturday, June 11, 2005

more on "artist rights" please

A nice and loaded phrase is raised in the comments. thanks for jumping in, and hello everybody.

"Artist's rights" - this is not a simple thing to understand.

To start with, most of the time, or much of the time, the artist is not the rights holder (see the Scientist lawsuit discussion below and elsewhere).

So violating copyright does not automatically mean artists rights are violated. Given how skewed-and-chopped most major label contracts are these days, I could suggest that copyright itself is a violation of artists rights - look at the effects of copyright for most artists in major label deals --since they are in no position to stick up for themselves in relation to their labels and get bullied or flim-flammed into terrible contracts where copyright law limits their ability to create and share, or even to use their own name.

So who are the artists, and what are the rights? Again, see the Scientist debate - is the dj who makes a mix an artist? Is the sound engineer or producer an artist? is the lyricist an artist? The performers? the authors of melodies? As I've said before, the definition of artist, and the ownership of rights in the legal sense, are the products of negotiation, and depend a lot on the kind of power you can bring to your side in negotiation.

And on the subject of rights.. this came up in a discussion elsewhere. A common statement by people (often those who have some experience with law or lawyers and how mind-bogglingly confusing and anti-intuuitive it is) is that they don't want to say much because they are not clear about the legal issues involved. In terms of giving legal advice in a practical quandary, this is spot on.

However, right now, that is not enough, not at all. The laws are changing, technology is changing, society has (as it always does) the potential to change and be changed... And so more generally it's dangerous to look to law to tell you what your rights are. (If you are in a particular legal dispute, yes indeed you need to know what the law says it gives you, but often even that is far from what you'll get, and in terms of broader debates, it's a recipe for handing over society to the ones doing best out of it now, which is generally not artists, to say the least). So. Law has a poor track record on defining and defending the rights of the less powerful - those rights have to be fought for in the law and maybe, eventually written into it.

It's important now for people to think seriously and playfully about what our rights are as creators, fans, listeners, members of ethnic, cultural and social groups, and as humans... the more so in this case because the law is not clear in itself. Any copyright lawyer will tell you that. It's all grey areas and arguments you can make depending on the judge, and the political climate, and the specifics. We need to be thinking bigger than this, especially if there are territories to be defended (or perhaps hidden) from law's slice-and-dice gaze.

So I'm for looking at who is involved, and thinking about who 'deserves' to get paid and for what, and thinking about how to make the law recognize or at least permit that in some way... a good first step would be expanding and clarifying the vocabulary around creativity, ownership, rights, blahblah.

Some specific points, though. First, the raid was over mixtapes, not DVDs.

I haven't said much about Kim's as a business, because that's not the point. The point is the law, or the pointlessness of the law. Or rather, the manipulation of the law and its ill-suitedness to dealing with culture.

And on the subject of mixtapes, I don't know about "cashing in," as was said about Kim's in the comments. As a business, they're going to be cashing in, that's what businesses do. But regardless of Kim's' motives, the presence of a trade in mixtapes provides a service to lots of artists and scenes. (and the motives of the people who stock them, buy them, and promote them, some of whom probably do work at Kim's are probably less capitalist, as many are incredibly creative and use their position to support all kinds of underground music making).

Anyway, it does helps djs and MCs when a place decides to sell mixtapes. Again, the MTV article has some good points (it hurts to say it) about mixtapes and hiphop. Again, I refer you to 50 Cent, love him or hate him or whatever else, but he's frickin huge and story is mixtapes helped put him there.. even the industry as it stands now benefits from the energy and experimentation possible in mixtapes. And I'm still not clear who or what they hurt.

All I can get from Buckles is "artist rights."


  1. The RIAA is the biggest group "cashing in" on the backs of musicians out there. They love to say it is in the best interest for the artists, but they really only look after the labels that are paying them... and unfortunately they don't look after the smaller, underground labels whose existence keeps a steady flow of fresh sounds for the mainstream to bite & dilute... but rather the top 40 garbage that is polluting the airwaves.

    Beyond that though, trying to shutdown the existence of the mixtape is a huge blow to the street cred and promotion of the artists represented, and something I always saw as a fair compromise in the world of filesharing, etc. Showing up on a mixtape or internet mix [which isn't entirely safe artform either] is a great way for people to hear new music, but still want to buy it as the mixing precludes you from having an exact album copy of the track. I have made a lot of my purchases based on tunes I found through mixtapes and web mixes. It outrages me as a consumer and as an artist that the RIAA pretends to speak for me whilst shitting on everything I stand for.

    I remember the similar raids they did in Toronto a few years back, the article quoted some of the djs who had made the mixtapes and their utter shock, saying "We used to get complaints from labels and artists- but only if they felt their positioning on the mix wasn't high profile enough. They know how powerful of a marketing and street level promotion tool it is".

    This is absolute bullshit and you are right that more people need to be up in arms. The law is kind of hazy right now...and it will be in the near future when a lot of these issues are going to be taken up in the courts and legislative halls. It is much easier to speak up now, than to try to change any subsequent laws later on.

  2. i interviewed for a job at ascap back in march. didn't get the job, for any number of reasons. (and obviously no great tragedy, considering the positions they take on issues.) but i certainly didn't help matters by making the argument during the interview that people who post mixes on the internet should not be sued by ascap b/c such people in fact further the interests of underground artists and have a (benign) journalistic rather than malign (misappropriative) intent . . . . how else are you supposed to learn about music that is not played on the radio or on mtv or by most djs?

    so yeah, the way the law now stands in relation to mixtapes and internet mixes is hostile to the interests both of underground artists and of the most enthusiastic music fans

  3. abe makes some good points about the whole kim's debacle here:

    i like when he puts it this way:
    "Mondo Kim's is not in the position of the smuggler, but in the position of the bookstore selling Tropic of Cancer."

  4. also, music journalism that relies on words can only convey so much . . . .

    so i see tapemixes and internet mixes as, among other things, arguments about music, a kind of journalism -- i.e., in addition to being works of art or entertainment

    i.e., the tape mix has a dual nature = (1) it's a derivative work of art or entertainment that makes use of other people's work; (2) a journalistic account or argument about music