Stephanie Vie. The Business of Entertainment. Editor: Robert C Sickels. Volume 2. Westport, CT: Praeger, 2009.
Who Owns the Music, MTV or Me?
When one voice rules the nation/Just because they’re top of the pile/Doesn’t mean their vision is the clearest. ~ Billy Bragg, “Ideology”
English musician Billy Bragg has long championed the underdog, the disenfranchised, and the downtrodden. The lyrics of his songs speak for the generations of individuals who have stood strong in the face of injustice, and he himself is no stranger to controversy, having championed the socialist party in England for many years. His music, a blend of traditional folk and punk rock, often features eloquently worded protests—against the futility of war, against the fascist party, against homophobic sentiment. These songs are “infused with genuine insight and humour, as well as a sustained and personal commitment to political and humanitarian issues.” Born in 1957, Bragg has thus had a long, though not particularly profitable, career as a musician, punctuated by his work at political rallies, his one-time championship of socialism, and the release of his 2006 book The Progressive Patriot, which continues Bragg’s unflinching cry for British nationalism.
In early May 2006, Bragg once again drew headlines, this time not for his political polemicism but instead for the sudden removal of all of his music from the popular online social networking site MySpace.com. Originally the singer had joined the site to promote his music, presumably to an audience of individuals likely not familiar with Bragg’s music—that is, the majority of MySpace.com users, who largely fall between 13 to 25 years old. Like all online sites that house user-generated content and data, MySpace has particular terms and conditions; the site offers free (ad-supported) server space for musicians to upload songs, music videos, and images. A concerned friend, however, pointed out to Bragg that MySpace’s terms and conditions seemed to imply that the site had “a nonexclusive, fully paid and royalty-free worldwide license” to any songs uploaded.2The full text of the original terms and conditions noted that:
by displaying or publishing … any Content … on or through the Services, you hereby grant tohttp://MySpace.com , a non-exclusive, fully-paid and royalty-free, worldwide license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, adapt, translate, publicly perform, publicly display, store, reproduce, transmit, and distribute such Content on and through the Services. This license will terminate at the time you remove such Content from the Services. Notwithstanding the foregoing, a back-up or residual copy of the Content posted by you may remain on the MySpace.com servers after you have removed the Content from the Services, and MySpace.com retains the rights to those copies.
Bragg withdrew his entire catalog of music from MySpace in protest. About a month later, in the face of Bragg’s repeated complaints in the media regarding these terms and conditions, MySpace changed them to specifically reassure users that they—not the site—continued to own the rights to their materials.
Afterward, in a Guardian article “Who Owns the Music, MTV or Me?” Bragg posed a question central to the debate regarding intellectual property ownership in online social networking sites that I believe offers us insight into one of the essential concerns that have emerged from the widespread use of social networking sites to promote music:
The demand that users waive all moral rights to their material in order to join a service brings into question the role of social networking sites. Will they usher in a revolution in the music industry by allowing self-promoted artists to circumvent the major record companies who have stood as gatekeepers of public taste for so long? Or will they simply be the means by which the industry keeps its monopoly on copyright ownership and earnings through the silent harvesting of intellectual property rights?
Bragg’s campaign for artists’ rights provides an opportunity for academics to enter into a conversation regarding digital intellectual property rights as applied to media posted in online social networking sites. His experiences with MySpace.com illustrate the difficulties even professional musicians face in understanding the legalities of copyright law as they exist in online spaces. Although traditional copyright of physical materials is often convoluted, placing works in an online realm introduces new challenges to copyright, namely how intangible digital materials should be addressed with regard to ownership and fair use. Because changes in digital copyright law are slow-going, outright resistance and protest such as Bragg’s are the most efficient and necessary way to enact revolutions.
A Historical Overview of Copyright Law
Intellectual property constitutes one of the most pressing and broad-ranging concerns of our times.
This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.—Woody Guthrie6
Ownership, authorship, and copyright will never be issues that we will be able to simply write into law and then walk away from. However, by examining the various shifts in intellectual property and copyright law throughout the ages, we can see a pattern emerge, one that takes creative freedom away from artists and places oftentimes unnecessary restrictions on the use of media in our culture. Even today, many aspects of intellectual property law are being hotly debated, such as music sampling, fair-use guidelines, and parody, to name a few. We have come, it seems, to a crossroads: Shall we radically revise our notions of copyright, authorship, and property in the wake of a digital age, or shall we attempt to hold on to previous, perhaps outdated, notions of ownership?
Certainly intellectual property and copyright law has been challenged with the propagation of peer-to-peer file-sharing programs such as Kazaa and Napster and court cases such as the 2005 MGMv. Grokster Supreme Court decision. Conclusions regarding the fate of copyright in our culture will not be easily reached, but the rocky transition may be eased by carefully examining the past, for debates over copyright law and intellectual property are surely nothing new. Just as new technologies of reproduction in the nineteenth and twentieth centuries were followed by major upheavals in copyright law, we seem poised on the verge of a similar paradigm shift in the twenty-first century as the ramifications of the Internet and digital media reproduction force additional revisions of copyright and intellectual property law.
The emergence of the concepts of authorship and ownership of works occurred in sixteenth-century Britain with the London Stationers’ Company’s monopoly over printed works.7 It was not until the early eighteenth century that authors began to truly assert ownership of their works. One of the most notable cases of copyright law infringement was a case in 1774, Donaldson v. Becket, in which Thomas Becket had purchased a book copyright from an estate and then challenged Andrew Donaldson, who argued that statutory copyright gave him the rights to reprint the book in question: “Becket and his partners had paid £505 at Millar’s estate auction in 1769; had they bought anything?” At the center of this case was the idea of property as an intangible rather than tangible good. Becket had purchased an idea, the rights to a book that he did not originally author. Could he then legally lay claim to this “property” in court? Copyright law currently differentiates between ideas, which cannot be copyrighted, and their expression, which can be copyrighted; furthermore, the law states that only material objects can be protected. As a result, these differences “raise difficulties for the definition of ‘music’ (and reflect copyright’s origins in the protection of literary works).”
Donaldson v. Becket was the beginning of a long chain of legal and social struggles to understand ownership of intangible property, of an author’s ideas, a struggle that continues today as we puzzle out the complexities of the changing nature of technology, reproduction, and ownership. One of the things that makes intellectual property such a complicated concept is its high fluidity compared to physical property. Intellectual property can be copied, shared, and distributed without diminishing its value at all. In fact, the worth of intellectual property, “measured economically, culturally, politically, and/or socially, is often dramatically enhanced by the extent to which it circulates.” Today, marketing terms such as “buzz” and “the tipping point” highlight the fact that advertisers want and may even need to offer substantial samples of goods to generate interest and guarantee sales of goods.
Consider the case of pop star Britney Spears, whose October 2007 album release, Blackout, has been promoted almost as much by the accounts of her personal turmoil in the gossip rags as the likely purposefully leaked singles disseminated online to anxious fans. Blackout peaked in second place on the Billboard Hot 100 music charts, and Spears’ recent single “Gimme More” climbed the charts as well to reach number three. Spears’ success is not unusual; she is the only female artist in the United States to claim four Billboard Top 100 Number One albums in a row. However, Blackout was successful not so much because the album generated interest on its own, but because fans were intrigued by the media portrait portrayed of the troubled singer. After her divorce, custody of her two young boys was taken away after she was declared an unfit mother, and she was ridiculed mercilessly in the press after her failed attempt at a comeback on the 2007 MTV Video Music Awards show. During 2007 and 2008, Spears has been in and out of rehab as well as hospitalized and held for psychiatric evaluation. Despite Spears’ personal life falling apart around her, marketing buzz was still able to provide her with more-than-adequate sales of her fifth album.
Along with the ill-defined marketing term buzz, Malcolm Gladwell’s The Tipping Point offers a satisfying metaphor for advertising success. The tipping point of an idea or product is the moment at which a critical mass of participants or purchasers has been reached; it is difficult to predict how or why a tipping point will be reached, and quite often it seems to be the result of luck and timing above all. Gladwell’s The Tipping Point and Blink both discuss social change and reasons why individuals make decisions or perform certain actions, focusing in part on how “connectors” and “mavens” help promote social change. In social networking sites in particular, new ideas are spread via charismatic individuals or those who simply reach a wide group of users, an easy accomplishment as social networking sites aggressively promote the formation of both strong and weak ties. In fact, MySpace itself is a perfect example of the power of buzz. The site’s popularity spread mainly based on word-of-mouth promotion and the aggressive marketing efforts of its cocreators, two connectors/mavens who had an idea for a particular kind of networking site they wanted to see take off.
Though early British copyright law was muddled and difficult to understand, it clearly placed the foundation of an author’s claim to copyright in the registration of his claim to the work. The law was radically transformed in 1911 such that an author’s claim to the copyright of his work was the term of his life plus 50 years. With the reformation of copyright law in 1911, an author’s rights began at the creation of his work, whether it was music, sculpture, a painting, or a book. All were given equal treatment under the new law, which both simplified the matter as well as placed control back into the hands of the author. Over the years, however, there is “no doubt that there has been a gradual extension of copyright regulation. The period of copyright has gradually been extended, there is no longer the need to renew copyright and the scope of material has extended to cover derivative works. Much infringement has been criminalized and technical protection devices recognized.”
In 1998, the U.S. Supreme Court upheld the Copyright Term Extension Act, which lengthened the copyright term to the life of the author plus 70 years, 20 years beyond the earlier 1911 copyright law. Commonly referred to as “the Bono Act,” after Sonny Bono, who championed the law, the Copyright Term Extension Act:
was passed by Congress after intense lobbying from companies like Disney (the copyright for Steamboat Willie, the first cartoon appearance of Mickey Mouse, was due to expire in 2004). It also extended copyright protection for valuable songs like “Happy Birthday to You” and “This Land Is Your Land.” These two songs ironically emerged from a folk tradition that emphasized the borrowing of lyrics and melodies, and which saw culture as a common resource to be shared, not privately owned. Both songs were built on preexisting melodies that date back to the nineteenth century.
As McLeod points out, there is a certain delicious irony in the fact that the copyright protections of two folk songs were extended despite the fact that “the folk song is, by definition, and as far as we can tell, by reality, entirely a product of plagiarism.” The irony also extends to Bragg’s fight against MySpace’s terms and conditions, as several of the songs he pulled from the site were songs based on unrecorded Woody Guthrie lyrics used with permission from Nora Guthrie, his daughter; Guthrie is perhaps most famous for recording one of the songs protected by the extended copyright act, “This Land Is Your Land.”
As a result of the Bono Act, even commonplace songs such as “Happy Birthday to You” remain protected under copyright law and can cost several thousands of dollars in royalty payments when used in public performance. “Happy Birthday,” originally composed in 1893 and copyrighted in 1935, is not scheduled to expire from copyright until 2030 in the United States. Its use in film and public performance can command around $5,000 to $20,000 for a single instance of the song. “Happy Birthday to You” is one of the clearest examples of how current copyright law in the United States often goes too far in its protection of long-dead artists’ copyrights. Over these many years, then, copyright law has been fundamentally transformed as a result of the influence of emergent technologies.
What is most crucial in a historical account of these legal changes is an explanation of why they occurred, “partly because of new forms of unfair competition, partly because of pressure on the patent system, but largely because of new developments in what we now call ‘the media.’” In the nineteenth century, the phonograph allowed for the easy reproduction of music; in the twenty-first century, digital reproduction of music and film was made both affordable and easy via the use of CD and DVD burning software and hardware. And, with the emergence of the World Wide Web, the transmission of digitally reproduced files through peer-to-peer networks became a simplified process with complex ramifications. As Simon Frith points out in his article “Copyright and the Music Business,” “the details of musical copyright are themselves a somewhat incoherent response to changing circumstance.” As intimated earlier, one of the major changes in U.S. copyright law is the emergence of online social networking sites and other spaces where digital media can be swapped and shared. Social networking sites shed interesting light on the gray area of copyright law in the United States. In particular, the case of Billy Bragg vs. MySpace.com shows that even professional artists can often be unaware of the intricacies of our convoluted copyright laws.
Online Social Networks and Digital Copyright Issues
Although online community-oriented social gathering spaces have been around almost as long as the Internet itself, online social networking sites represent a significant shift in our understandings of what it means to connect with others on the World Wide Web. In the early eighties, Howard Rheingold waxed rhapsodically about the Whole Earth ‘Lectronic Link (the WELL), a virtual community where individuals could share materials, post their thoughts, and band together. Today, though the WELL is still around, its popularity has been far eclipsed by online social networking sites, which have captured the attention of hundreds of millions of individuals across the globe.
Social networking sites are “virtual digital places that occupy neither space nor time. They are inherently discursive spaces where people actively convene to commune with others.”19 Such computer-mediated environments allow users to move beyond the confines of actual physical space; participants can thus convene from any place, at any time, in many different ways. Social networking sites build upon many of the features that previous computermediated environments such as MOOs and chat rooms offered, but one major difference is that most current social networking sites such as MySpace, Friendster, and Facebook offer more than just the opportunity for users to chat, converse, and interact verbally. These sites provide a space for users to portray themselves in a particular light—their online self-identity—and forge connections with others who have similar interests by networking. These sites attempt to link individual users via degrees of interest, affiliation with a group, or social connections; individual users are like nodes, which are then connected via social ties, forming interwoven networks of participants.
On MySpace, for example, users are said to be “friends” or “in your extended network” if they are a friend of a friend. MySpace in particular offers features that were not possible in earlier computer-mediated environments, such as the ability to upload profile photos, upload music and music videos, write blogs where others can comment, and so on. The combination of these features allows for many different ways participants can approach the social networking aspect of the site. Because of their rich variety of features and, in particular, the ease of sharing multimedia compositions with others, online social networking sites have captivated millions of users and are quickly becoming ubiquitous on college campuses in particular but also throughout the world.
These networking sites focus on the interests and activities of the individual while allowing them to use basic HTML along with embedded multimedia clips, such as music videos, to jazz up their profile pages and share them with friends. Much of the media shared on these sites contributes to what Lawrence Lessig has termed the “remix culture,” works that rely heavily on sampling already-published material. Thus, online social networking sites—because of their large membership numbers and easy-to-use communication tools—are rapidly becoming repositories of this user-created content. To more easily share materials among individuals, their sites can be linked together by declaring a friendship bond between the two users; larger connections can then be made by establishing links among many different possible friends available in a network. To some extent, collaborative elements are built into the site design, along with features that allow for more traditional individualistic expression; the combination of the two combined with word-of-mouth promotion has pushed MySpace into headlines and the collective consciousness of many twentieth-century individuals.
It is important to consider the impetus for the social networking site MySpace before assessing its effect on copyright and intellectual property. Cofounder Tom Anderson weathered several failed attempts to promote his band. Instead, he created a site where he envisioned bands could easily network and connect with each other for free. MySpace therefore has aggressively worked to promote itself as a site to share one’s own music as well as discover new bands. The founders of MySpace, Tom Anderson and Chris DeWolfe, designed the site by borrowing the most attractive features displayed in other incarnations of networking sites and blogging sites, compiling these features in one easy-to-use Web site. Their site included photos, blogs, personal profile spaces, and so on—all successful aspects of earlier sites that capitalized on the establishment of social networks. However, to pitch MySpace as a unique addition to the social networking universe, Anderson and DeWolfe added an additional layer to the site: music promotion. Bands began to use MySpace as a space to advertise concerts and music, and the site was quickly picked up in various media, highlighted as a new opportunity for musicians interested in self-promotion. MySpace became immensely profitable for Anderson and DeWolfe, who sold the site to Rupert Murdoch’s News Corporation in July 2006 for $580 million.
Interestingly, many users have begun utilizing MySpace as a free dating site and are thus moving away from for-profit sites such as Match.com and eHarmony. Some business owners promote themselves via their MySpace profiles, and a small portion of users have emerged as “MySpace celebrities,” individuals who have aggressively pursued fame through MySpace. Tila Tequila, one such MySpace celebrity, is a former Playboy model who wanted to move into acting and singing. As the front woman for her band, Jealousy, she was featured on the first MySpace music compilation. Tila is infamous for her MySpace networking—at last look, she had almost two million “friends” on the site. The immense popularity of the site helps users to successfully tailor the site to their needs for promotion and marketing, such as Tila Tequila’s rapid rise to fame through MySpace. What prompted MySpace to take off so fast, and so far—a feat which was largely accomplished without spending money on advertising—was a lucky combination of kairotic timing, word-of-mouth, and appealing design.
Anderson noted in an interview with Forbes that the site provided features and freedoms that other social networking sites didn’t, thus offering users a site that built on the success of other online community sites, but with a twist:
A lot of the early growth … had to do with the features and what our competitors were not allowing people to do. We recognized from the beginning that we could create profiles for the bands and allow people to use the site any way they wanted to. We didn’t stop people from promoting whatever they wanted to promote on MySpace.
Because of his experience as a musician in a band that failed to take off, Anderson believed that a networking site such as MySpace would allow smaller bands to succeed in a society that, until recent years, has favored artists who sign on with large corporations that invest huge amounts of money in promoting the artists. Though artists often receive an initial advance, this money is usually pitted against the amount of the parent company’s promotion; an artist or group who doesn’t make the cut and sell enough units can end up bankrupt rather quickly. But the technological advancements in recent years have shifted the means by which bands are promoted. No longer must artists rely on the protective backing of large corporate interests or else go the more difficult route of aggressive self-marketing through their own label. Today, artists can hype themselves as a product in social networking sites such as MySpace and reach their target audiences quickly and easily.
However, MySpace was acquired by Rupert Murdoch’s News Corporation when that company bought MySpace’s parent company, Intermix Media Inc. for $580 million. In large part, Bragg’s decision to remove his music from MySpace was prompted by the fact that the site was now owned by a large media conglomerate; originally, he could not necessarily be reassured that his work would not be used without his consent for other purposes. Ironically, Murdoch chose to acquire Intermix and MySpace because of the possibilities that media convergence in these spaces offered, such as the ability of MySpace to provide unedited, unfettered access to content and news to users. In an interview with the BBC News, Murdoch railed against the idea of newspapers “editing content into a one-size-fits-all package to be consumed without question by the reader:”
Young people “don’t want to rely on a God-like figure from above to tell them what’s important,” Mr. Murdoch said. “And to carry the religion analogy a bit further, they certainly don’t want news presented as gospel. Instead, they want their news on demand, when it works for them. They want control over their media, instead of being controlled by it. They want to question, to probe, to offer a different angle.21
Ironically, Murdoch’s assertion that people “want control over the media, instead of being controlled by it” was encapsulated quite clearly in Bragg’s response to MySpace’s terms and conditions. Rather than being controlled by the site’s peculiarly stringent intellectual property clause, Bragg chose instead to resist this media and protest against it. His concern was for the generations of young musicians who might, like him, not carefully read the terms and conditions and, as a result, might sign their rights away for the privilege of allowing MySpace to promote their songs. Though Bragg had been careful over the years to retain most of the copyrights to his songs, licensing them to the record companies that have released his albums over the years, his concern was for “the generation of people who are coming to the industry, literally, from their bedrooms.”
Indeed, many young adults growing up in the wake of constant technological access are growing up less critical of media, unable to analyze at a deep level just what it means to be a participant in a certain technology. These so-called digital natives are unlikely to read the terms and conditions of a Web site before clicking through and agreeing. Bragg’s origins are in the resistance movements of early British punk and folk music, with the “underlying philosophy among some practitioners … of a communal effort where commoditization of the product was undesirable or even unavailable.” As such, he has long been steeped in the idea of protest, of a (perhaps cynical) distrust of big business and media conglomerations. For Bragg, fighting the restrictive terms and conditions of a social networking site is another step in a long tradition of opposition against fascism, homophobia, religion, and so on. Can we necessarily assume the same of today’s digital natives, who have grown up accepting the ubiquity of technology in their lives? Not necessarily.
Bragg’s protest, thus, is a clear case of the necessity of encouraging all users of technology to approach cautiously, to think about the impacts of terms and conditions on their rights, and to think above all of what they may be giving away and receiving in return. After all, Bragg almost gave away his rights for the ability to promote his songs that epitomized the fight against the relentless encroachment of capitalism; it would have been a disappointing quirk of fate if MySpace had in fact retained control of Bragg’s music without his explicit, informed consent. The site did change its terms and conditions eventually, though it did not explain any connection between Bragg’s protests and the revised terms and conditions, which included the words, “The license you grant to MySpace.com is nonexclusive (meaning you are free to license your content to anyone else in addition to MySpace.com).” After being interviewed about the changes, Bragg noted that he found the possibilities of social networking sites both exhilarating and disturbing:
“Social networking sites are a revolutionary tool for new artists who utilise [sic] them in order to gain a following,” said Bragg. “Any ambiguity about the ownership of rights could have serious implications not only for artists but for the sites themselves. If this new medium is to attain its full potential, it is crucial that artists are able to post content secure in the knowledge that doing so will not hinder their future career and earning potential.”
In order to benefit from their intellectual property, copyright owners have to be able to administer their rights.
Changes in intellectual property and copyright laws are often the result of change that is forced by the emergence of particular technologies. With the creation of Gutenberg’s movable type printing press and the shift from priceless hand-lettered books to books distributed on a much larger scale, notions of intellectual property surfaced that aimed to protect the monetary rights of the author. Once books could be bought and sold for a profit, then individuals wanted to assure their ability to turn that profit. Similarly, when technologies such as the phonograph, the cassette tape, and the compact disk allowed for simplified copying of music recordings, intellectual property law shifted to once again restrict the ability for individuals other than the record company and, to a lesser extent, the artist to make money off of their music.
Now with the growing popularity of peer-to-peer file-swapping and online social networking technologies, we are likely to see a resultant shift once again in the dominant paradigm of intellectual property law. Indeed, the Digital Millennium Copyright Act of 1998 has made it illegal for individuals to circumvent copyright protection measures on digital media such as compact disks and digital music downloads. The DMCA in fact makes it illegal to even post information that would allow an individual to potentially circumvent such measures—one does not even have to follow through to be in violation of the act. Each iteration of change to intellectual property law has resulted in laws becoming stricter; their approach is quite simply punitive in most cases. Rather than championing the complexity and sophistication of movie trailer remix projects such as “Shining” and “Office Space Horror,” for example, movie studios are instead forcing these remixes—which are often protected at some level as parodies of the original—to be removed from sites such as YouTube and MySpace. The documentary film Eyes on the Prize was delayed in its re-release for quite some time because of copyright issues stemming from the use of archival footage (including the use of the “Happy Birthday” song) that cost significant amounts of money to clear. Even educational fair-use guidelines in school settings are becoming increasingly difficult for instructors to navigate, particularly those unschooled in legal doctrines.
Without those who, like Bragg, stand up and raise their voices in protest of the escalating severity of U.S. intellectual property and copyright law, we may soon face a world in which our abilities to compose multimodal works is severely limited. In such a world, we might face the daunting task of gaining approval from copyright holders before using even brief materials for classroom use. We might face a world where parodies of popular songs and images are no longer protected. Chillingly, what we face is a world where creativity is in fact restricted by the very laws that aimed to protect that creativity in the first place. Bragg’s tale offers us a chance to think about the moment where we are poised, a moment where we can decide to raise our voices and protest that we will not give away our rights only for a song.