Tuesday, April 22, 2008

ASCAP's Bill of Rights, a Response

ASCAP has released a "Bill of Rights for Songwriters and Composers". It spouts the general platitudes in an effort to placate we, the musically-minded, but it does little to actually address the issues facing musicians and composers. The original US Bill of Rights had less to do with the actual rights of a citizen than it did with limits of governmental power. This is why those start not with "We have the right..." but rather with "Congress shall pass no law..."

This list is largely without teeth. It does nothing to condemn the abuses perpetrated by record labels, but almost serves as a list of what you can expect to lose when you sign a contract. It also fails to outline any specific tricks used to swindle money away from writers and musicians.

And it panders to Disney. So here's a brick-by-brick deconstruction:

1. We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.

This is true, but it's weak. We get to "share in" the money we make? Why that's damned generous of you, kind sir!

2. We have the right to license our works and control the ways in which they are used.

While there's nothing inherently wrong with this, it's really a fight against the wrong enemy. This is ammunition for people who don't think they should be parodied or criticized. And the wording is far too general. Cranking my Kenny G cassettes to annoy the neighbors is a "use" of a "work", and yet Mr. G can blow me if he thinks he has any legal recourse against me.

3. We have the right to withhold permission for uses of our works on artistic, economic or philosophical grounds.

Okay, fine, nothing inherently wrong with this, only why is it specific when the previous one was general? And why no mention of religious grounds? Are you saying that I can object to a philosopher wanting to reference my lyrics in his book, but not a minister? You can sum this and the last one up with the following: "the publishing rights of the author remain with the author, unless the author gives them up."

4. We have the right to protect our creative works to the fullest extent of the law from all forms of piracy, theft and unauthorized use, which deprive us of our right to earn a living based on our creativity.

And now that we've dilly-dallied around the point, here it is. Fuck P2P. Fine, file-sharing is illegal and stealing music is wrong, but simply stating that here is not going to address the issue in any meaningful way, and yet this seems to be a focal point of the list. Notice that out of the entire BoR, this one is the most strongly worded. And it segues nicely into:

5. We have the right to choose when and where our creative works may be used for free.

More of the same. And also patently untrue with this general wording. I have the right to play Linkin Park's music at a party without charging my guests for listening to it, and Linkin Park can't do a damned thing about it.

6. We have the right to develop, document and distribute our works through new media channels - while retaining the right to a share in all associated profits.

This is actually a good one, and in important one. Musicians and writers have been getting screwed on the move over to digital distribution, and something needs to be done about that. Kudos!

7. We have the right to choose the organizations we want to represent us and to join our voices together to protect our rights and negotiate for the value of our music.

This ties in with #6, in that the above provision is essentially what the TV writer's strike was all about. This is a call for collective bargaining on the part of musicians and songwriters. Great in theory, but good luck on the logistic side. The problem is that, in the age of the DAW, being a recording artist is unskilled labor. Everyone is expendable. And the bar is set so incredibly low for music writing ("Oh, Mickey, you're so fine..." et al) that unless Diane Warren and John Williams went on strike, nobody would notice.

8. We have the right to earn compensation from all types of "performances," including direct, live renditions as well as indirect recordings, broadcasts, digital streams and more.

Sort of, but not really. Actually, the way copyright law works, performances in the strictest sense aren't covered. When it comes to plays in clubs and concerts, they sort of figure out an average and apportion funds as best they can. And the "they" in this equation is... ASCAP! Yes, ASCAP handles this for a living--they know better. Why would they include this in their "Bill of Rights" when they know it will not be followed except in a mathematically general sort of way?

9. We have the right to decline participation in business models that require us to relinquish all or part of our creative rights - or which do not respect our right to be compensated for our work.

Yes, yes, yes, yes, yes, yes, yes! But why the weakness in the wording? Why not "any record exec who puts forth a contract requiring one to relinquish all or part of the artist's creative rights will be subject to an immediate castration"? After all, castration reduces testosterone, and would make these record execs less likely to go bald, and they wouldn't have to shave every day. Plus they would be less aggressive and less capable of catching STD's. Everyone wins.

Seriously, though, here's what's wrong. Record labels want publishing rights because they know that's where a huge chunk of the money is. Taking a cut of distribution is fine, because the labels help out significantly to that end--that was the point. We put your music in ten million homes and we get a piece of that pie. But now it's become, "we front the money for recording, and we get the money when someone wants to put it in a movie." I could see giving someone a finder's fee for negotiating a deal, but really, even that's not genuinely necessary. Giving labels a part of the creative rights undermines the artist. End. Of. Freaking. Discussion.

10. We have the right to advocate for strong laws protecting our creative works, and demand that our government vigorously uphold and protect our rights.

Thank you Disney. In the US, copyright law protects anything you create unless you explicitly give it up. You retain the rights to your work until you've been dead for 90 years. I shit you not. Why? Well, mostly because the original Disney cartoons, including "Steamboat Willy" which featured the debut of Mickey Mouse, aren't owned by Disney Company, but rather by Walt Disney's estate. To keep these from entering the public domain, Disney keeps lobbying congress to pass and uphold vigorous laws. Does this help artists? Well, let's ask Walt... Mr. Disney?... No comment, then?

There's a fairly substantial debate about the harms/helps of copyright laws, especially in the international sector (Japan, for example, doesn't honor US copyright law).


Blah. Maybe I'm being a bit harsh here, but the overarching theme here seems to be "musicians and artists deserve to get paid (too)." And this is true, and to be fair, a lot of legitimate points have been brought up in this BoR, but a lot of legitimate concerns have been ignored. They could have done better, and they needed to do better. Take this list, for example:

1. The artist determines how much to charge for his/her/their music.
2. All creative rights are retained by the artist unless a work-for-hire agreement has been made regarding that specific work.
3. The words "breakage fees" or "recoupment" are not to appear in contracts.
4. When new media are introduced, the rights to the work will reside with the artist until a new arrangement is negotiated.
5. You can't take it with you, no matter what copyright law says.

Was that so hard?

For more on copyright and fair use: http://www.templetons.com/brad/copymyths.html
For more the ASCAP petition: http://www.ascap.com/rights/billText.aspx


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