Blog 2101: Copy… Right?

When context, technology, and time can shift the goalposts, how are we, as artists, to navigate the future while maintaining our self-worth?

Years ago, I attended a large, informative, and even occasionally inspiring, summit for songwriters. Three days of presentations by and panel discussions featuring managers, publishers, producers, analysts, artists, and other industry professionals. It was organised by a great and important association that represents, supports, and educates artists in a wide range of ways, as well as curating events and providing resources which are valuable and vital to our development and survival.

The keynote address was all about intellectual property – specifically, about the importance of artists becoming better educated and more vigilant about their own. Secure your copyright! Collect your royalties! Your work has value – don’t let others exploit, abuse or steal from you! While the premise was timely, the discourse in both the keynote and throughout the summit that followed seemed, to me at least, oddly anachronistic: that the biggest threat to our artistic livelihoods was internet “theft”, and that certain potentially, increasingly outdated ideas about creativity and copyright should be held fast above the rising tide of developing technologies, new opportunities and media for collaboration, and any evolving of our ideas of “ownership”, “permission”, “rights” and “value”.

Yet the closing event on the final day was completely at odds with the messaging of the rest of the summit: a one-hour “fireside” chat with a famous and successful songwriter. The odd part, which the hosts managed not to acknowledge, was that this venerated artist had also very recently lost a high-profile court case, regarding his own uncredited use of another copyright holder’s work in his own best-known, and very commercially successful, hit song. The legal proceedings had even uncovered that he lied about it. In other words: three days of “Sampling is Bad” messaging was capped off by honouring someone who’d been found, legally, to have done exactly that.

Sidebar: A Tale of Copyright, In Three Parts

As it turned out, I knew a fair bit about this particular case at the time. I’d recently attended a series of events all about it, organised by Arts Law, a fantastic service which provides free and low-cost resources for Australian artists, including access to legal consultation that would normally cost thousands of dollars (and an organisation which I’ve praised before). One of their events was a two-hour panel discussion of the case, which included intellectual property and entertainment lawyers, the evidence used in the case, and legal precedents to help explain it. It may sound dry, but it was actually as fascinating as it was accessible. The event comprised three parts:

1. The Case – the discussion of the case itself only took up maybe the first 15 minutes. It was, as no-one there actually said, though I wish someone had, “open-and-shut”: here is the accusation of copyright infringement, here are the criteria, here is the evidence given, and here’s how that evidence clearly met the criteria. The most eye-opening revelation was that, if it meets the criteria, you can still be found guilty of ripping off someone else’s song even if you’ve never heard it before – and even if you can demonstrate that you’d never heard it before. Aside from that part… pretty straightforward.

2. The Feeling – where it got interesting is in what the lawyers described as the “emotional” assessment of the average layperson: that a cut-and-dried case only seemed “complicated” because, depending on the players and the material, one might feel differently from example to example. In this instance, public opinion sided with the famous songwriter: he, and his song, were beloved (and considered quintessentially Australian); the song he’d sampled, without permission, compensation or credit, was considered public domain (it was not); and its publishing was owned not by an individual, but by a company (gross, right?). Public opinion was that David had just lost to Goliath. So the lawyers explaining the case to us engaged in a thought exercise: what if the sampled work belonged not to a company, but to a little old lady? What if the songwriting royalties to which she, to which all of us as songwriters, were entitled, but of which she’d been deprived, might have been her only source of income? What if the little old lady’s song had been used – again, without permission, compensation or credit – by a faceless corporation, in an advertisement? Would our feeling differently about it change the facts of the case, or how consistently the law should be applied?

3. The Examples – after this, the lawyers went through a series of similar cases that had come before this, most very well known (think David Bowie and Queen versus Vanilla Ice, or Rick James versus MC Hammer). As varied as they were, they showed how consistent the case law was with copyright infringement overall (which is, at least in part, why more recent cases like ‘Blurred Lines’ or Katy Perry versus Flame were so controversial). While the details from case to case may differ, and the context or the technology may change or develop in unforeseeable ways, the goalposts remained relatively fixed, and the rules of the game seemed pretty clear.

Back to the Summit

At the conclusion of a rather fawning interview with the celebrated Aussie singer/songwriter, which managed to cover everything about his career except his very recent (possibly yet to settle?) legal case, they opened it up for an audience Q&A. Most people approached the audience microphone to simply offer comments of support, about how this songwriter had been “hard done by” and “bullied”, which he politely acknowledged but to which he made no actual response. The praise was universal, the commentary uniform – not a single voice mentioned anything else, much less asked the single most burning question. I was gobsmacked. Did this not contradict everything we’d been told for three days? What lesson were we to take from this? Should I say something – on that microphone, in that convivial forum, be the “Well, actually” guy, who gets booed by a thousand people, who in a theatre full of fellow artists earns a name not for his own art, but for telling people they’re not as smart as they think they are, for going against public opinion? Was it inappropriate, or simply not the time and place? If so, when and where would, could, be better? It might seem disrespectful to this esteemed guest of the summit – but I hadn’t put him in this position, the organisers had put us all in this position.

Well, I didn’t speak up. I was afraid to, of course, but it took me a while to understand that I was also a little heartbroken. The association that had organised the summit was one I admired for the other 99% of what it did, and one I had to thank for so much of my education and empowerment as an artist and a professional. While that was the moment to have said something, it would have been the first something they’d ever heard of or from me – argumentative, churlish, ungrateful. I didn’t want one moment, one statement, to represent to them what I thought of the other 99% of what they represented to me.

Had I been a better known or more successful artist, or had I simply cared less what others might think of me personally, I might have asked my question. It might received had more support than I imagine. It might even have been received in the way it was intended: that while I agreed we should be more consistent in seeing the “value” in our work and ourselves, that I also believed that meant regular re-examination and self-criticism in how we go about that. My question was less about the organisers personally or the summit itself, and more about the ways context, technology, time can gradually render one’s solid mission statement inconsistent, then paradoxical, then self-sabotaging, and how we, as artists, are to navigate the future…

… so, not exactly something I was capable of condensing into a pithy Q&A moment, in an auditorium full of people I feared may turn on me for being contrarian. Hell, this post was my attempt to be concise about my feelings on a moment that happened so many years ago. Maybe I still need more time to whittle this down to whatever its essence may be.

Further Viewing

I know this is more than long enough already, but if you have a lot more spare time, Tom Scott‘s wonderful video on the growing disparity between copyright law and technology it couldn’t foresee is fascinating viewing:

Illustrating this broken copyright situation, in another Tale in Three Acts: musicologist Adam Neely’s video, in which he defended Universal Music and Katy Perry

… itself received a copyright strike – from Universal:

… which is then further explained by fellow YouTuber (and actual lawyer), Legal Eagle:

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