Friday’s Endnotes – 09/11/20

By , September 11, 2020.

How can we pay for creativity in the digital age? — “Every post on Twitter or TikTok is an easy, cost-free path to discovery for an upstart comedian, actor, or cinematographer. In ‘The Death of the Artist: How Creators Are Struggling to Survive in the Age of Billionaires and Big Tech’ (Holt), the critic William Deresiewicz considers how we arrived at a situation in which it’s easier than ever to share your creativity with the world, and harder than ever to make a living doing so. He interviewed roughly a hundred and forty writers, musicians, visual artists, and filmmakers about their experiences working in the so-called ‘creative economy.'”

In ‘Jersey Boys’ Ruling, Appeals Court Adopts New Standard for Nonfiction — “Typically, when a copyright claim is asserted over a work of nonfiction, the plaintiff will either try to convince the judge and jury that he or she made an original selection or arrangement or included something beyond facts within their work. Sound a little odd? Perhaps, but it happens. For example, three years ago, a music journalist admitted to having ’embellished’ his articles about Tupac Shakur to sue Lionsgate over All Eyez on Me. The Jersey Boys case became another instance of this phenomenon. The 9th Circuit is now putting its proverbial foot down by adopting what some have referred to as the doctrine of copyright estoppel and what this panel of judges prefer to call an ‘asserted truths’ doctrine.”

Data Shows 90 Percent of Streams Go to the Top 1 Percent of Artists — “In its early days, streaming offered a glimmer of a utopian free-for-all: A music landscape where all artists had equal chances of making it big, where a $9.99-per-month endless buffet of music would drive listeners away from the mainstream and into the niche. Wired editor Chris Anderson was so optimistic in 2004 that he famously suggested that streaming would upend our notions of supply and demand, creating a ‘long tail’ where the non-hits would get a bigger share than they ever had before. But in the reality of 2020, things look largely the same. Sure, albums have given way to playlists, hip-hop is the new pop and digital downloads have all but vanished. But the enormous disparity, the who-has-what of it all — that part hasn’t really changed. In fact, streaming hasn’t just upheld the gap between music’s haves and have-nots; it’s widened it.”

Judge Sets Tentative Schedule for Internet Archive Copyright Case — “In an August 31 scheduling order, Judge John G. Koeltl mostly accepted the discovery schedule proposed by the parties late last week, and set a few key dates in the case schedule: * Dispositive motions are to be completed by October 8, 2021. * Pretrial Order/Motions in Limine must be submitted by October 29, 2021. * The parties, barring a motion that would moot the schedule, are to be ready for trial on 48 hours notice on or after November 12, 2021.”

Archivists Want Broader DMCA Exemption for ‘Abandoned’ Online Games — “A few weeks ago the Copyright Office started its latest review of the DMCA exemptions which will be updated next year. Since then, several submissions from archivists, digital rights, and consumer organizations have come in. Several of these ask the Office to renew the current exemptions for abandoned online games. The Software Preservation Network (SPN) and the Library Copyright Alliance (LCA) note that this new exemption ensures that classic games will be preserved. This allows nostalgic gamers and younger generations to play older games that are no longer officially supported. This has already led to some success stories.”

Friday’s Endnotes – 11/08/19

By , November 08, 2019.

Creative community mourns the passing of entertainment lawyer Jay Rosenthal — Rosenthal was most recently a partner at the law firm Mitchell Silberberg & Knupp and previously served as general counsel at the National Music Publishers Association. More remembrances here.

Argument analysis: Justices pillage state arguments for sovereign immunity for copyright infringement — This week, the Supreme Court heard oral arguments in Allen v. Cooper, to determine whether Congress validly allowed states to be sued for copyright infringement. SCOTUSBlog takes a look at how they went. And check out Adam Mossoff’s op-ed in the Wall Street Journal on the case, Stop the States’ Copyright Plunder.

Purged: How a failed economic theory still rules the digital music marketplace — Remember “the long tail”? It didn’t hold up. “There wasn’t any volume in the ‘Long Tail’ and nothing had really changed – except for the worst. The actual sales data showed an even greater concentration of sales in the ‘Fat Head.'”

‘Appropriation Art’ or ‘Revenge Porn’? The Subject of a Richard Prince Instagram Portrait Slams the Artist’s Use of Her Image — Perennial copyright defendant Prince is back in the news. Naomi Rea of Artnet News reports, “An exhibition of Richard Prince’s portraits at Detroit’s Museum of Contemporary Art has renewed controversy over the artist’s use of appropriation after the subject of one of his latest Instagram works spoke out against the appearance of her image in the show without her consent.”

House Judiciary Committee Report on H.R. 2426, the Copyright Alternatives in Small Claims Enforcement Act of 2019 — The Committee report for the CASE Act, which overwhelmingly passed the House last month 410-6, is a great resource for understanding the bill. Along with a summary and section-by-section analysis of the bill, it provides general background, constitutional considerations (including the Copyright Clause, the Appointments Clause, Article III and Seventh Amendment rights, and procedural due process), and intended operation of the Act.

The Long Tail’s Role in Copyright Debates

By , April 25, 2011.

Hit songs, blockbuster movies, best-selling books — most creative industries are driven by sales of a small handful of the most popular releases.

In 2004, Wired editor-in-chief Chris Anderson wrote that the internet would render this model obsolete.

Physical limitations of the bricks-and-mortar world led to a focus on blockbusters in the first place. As Anderson explains in Rise and Fall of the Hit, “The world of shelf space is a zero-sum game: one product displaces another. Forced to choose, each link in the entertainment industry naturally selects the most popular products, giving them privileged placement.” Less-popular, obscure, and niche products remained unavailable to consumers because of the “tyranny of physical space.” In addition to this, creative markets are notoriously uncertain and inefficient; focusing on blockbusters helps lower these risks.

The internet, of course, doesn’t have the same physical limitations as warehouses and retail outlets. Shelf space is virtually infinite. Content can be easily and cheaply distributed around the world. The shift from an analog to a digital world is radical. In the music world, for example, what once took a vast amount of infrastructure and hundreds of millions of dollars — distributing music to consumers across the nation 1It’s estimated that a national record distribution operation cost $125 million a year in the mid-1980s, according to David Nelson, Free the Music: Rethinking the Role of Copyright in an Age of Digital Distribution, 78 Southern California Law Review 559, 563 (2004). — could be done digitally for pennies. 2Although there are still significant costs involved with preparing the music for digital distribution, and the costs of creation remained relatively similar.

In his influential book, The Long Tail: Why the Future of Business is Selling Less of More, Chris Anderson suggests that these changes will result in a shift away from the blockbuster effect. In a traditional retail sales distribution curve, blockbuster products make up a large “head” that contribute to the majority of sales, while the rest of products reside in a smaller “tail” that eventually reaches to zero — most commonly this is referred to as the 80/20 rule, where 80% of sales come from 20% of  products. The “Long Tail” theory states that since online retailers have unlimited “shelf-space,” the tail can extend much further; wide product selection and worldwide access increases demand for less popular and niche products in the tail as well, until the majority of sales come from the tail instead of the head.

If the Long Tail theory is correct, what does that mean for copyright? Anderson and others have predicted that a shift in demand away from hits would reduce the role of those companies that have traditionally invested in content creation — record labels, film studios, publishers, etc. These companies typically rely on a solid framework of copyright law to operate. Content creators in the “tail”, it is argued, are less concerned with copyright’s protections, which could result in a “less rigorous de facto regime for the majority of works.” 3William Patry, A Long Tail Effect on Copyright?, Patry Copyright Blog (Dec 19, 2006). I disagree with the contention that attitudes toward the appropriate scope of copyright protection can be generalized in this fashion. Indeed, there are many examples that can be used to show the opposite.

Which brings us to our next question. Is the Long Tail Theory correct?

Anderson presents several case studies consistent with his theory. But while a few studies done since the book was published have reached similar results, 4Brynjolfsson, Hu, and Simester, Goodbye Pareto Principle, Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales (January 1, 2011); Haro, Sainz, and Somalo, Is One Long Tail Enough? (Cuando Una Long Tail No Es Suficiente) (2008). the full range of evidence shows a decidedly mixed bag. 5Òscar Celma, Music Recommendation and Discovery in the Long Tail, (2008).

Billboard Magazine’s Glenn Peoples highlighted some of this recent research and other statistics which show that, despite Anderson’s predictions, demand for content remains concentrated around blockbusters. In The Long Tale?, Peoples writes:

So far, at least according to Nielsen SoundScan data on U.S. music sales from January 2004 through October 2009, that revolution hasn’t arrived—although the demand for albums has changed. Sales of albums, especially digital ones, became significantly less concentrated around hit releases since 2004. But sales of digital tracks—which this year account for 56% of digital sales by track volume—have grown more concentrated in hits during the same time period.

These findings are consistent with other research, including that conducted by Will Page and Anita Elberse. In his recent article, In Defense of Copyright: Record Labels, Creativity, and the Future of Music, Brian Day explains, “The results of both Page and Elberse‘s studies suggest that consumer demand for music has remained fairly constant despite the digital transition, with the vast majority of sales clustered around a small group of extremely popular titles.” 621 Seton Hall Journal of Sports and Entertainment Law 61 (2011).

If any conclusion can be gleaned from this, it is that the Long Tail Theory is not a natural phenomenon, caused solely by the economics and architecture of the internet. Factors besides these drive demand to content located in the tail.

And even though there are benefits to increasing the importance of “tail content”, “head content” still plays an important role. The success of hits and blockbusters provides the capital for content industries to take more risks, investing in the creation of non-mainstream and niche content. The importance of hits remains remarkably the same at every level across many different artistic fields — consider how many ballet companies rely on Christmas productions of The Nutcracker Suite to sustain themselves. 7For example, The Washington City Paper notes that The Nutcracker provides 20% of the Washington Ballet’s total ticket revenue each year; The Cincinnati Ballet received 51% of its annual revenue from the Suite in 2008-09.

In short, the demise of “traditional” creative companies predicted by The Long Tail, and any changes in the role of copyright law that may accompany that, has yet to occur in practice. Brian Day offers his own conclusions drawn from the discussion above specifically relating to the music industry — conclusions that I both agree with and think are just as applicable to other types of works covered by copyright law:

The Internet has thrown open the floodgates of music,offering consumers more selection than ever before. As the previously discussed studies demonstrate, however, increased access to music does not suggest that consumers’ appetite for music has changed or that record labels have artificially restricted musical diversity or creativity. To the contrary, the studies demonstrate that record labels successfully satisfy consumer demand by providing useful art to consumers. Without record labels, the long tail would likely grow even longer, requiring consumers to sift through thousands or perhaps millions of songs in hopes of stumbling upon a hit. Labels provide expertise in determining which songs and artists will appeal to specific groups of consumers, and invest significantly to market and promote their selections. A review of Billboard’s Top 100 most popular songs affirms the continuing popularity of label-funded music and artists. 8In Defense of Copyright, pp 87-88.

References

References
↑1 It’s estimated that a national record distribution operation cost $125 million a year in the mid-1980s, according to David Nelson, Free the Music: Rethinking the Role of Copyright in an Age of Digital Distribution, 78 Southern California Law Review 559, 563 (2004).
↑2 Although there are still significant costs involved with preparing the music for digital distribution, and the costs of creation remained relatively similar.
↑3 William Patry, A Long Tail Effect on Copyright?, Patry Copyright Blog (Dec 19, 2006). I disagree with the contention that attitudes toward the appropriate scope of copyright protection can be generalized in this fashion. Indeed, there are many examples that can be used to show the opposite.
↑4 Brynjolfsson, Hu, and Simester, Goodbye Pareto Principle, Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales (January 1, 2011); Haro, Sainz, and Somalo, Is One Long Tail Enough? (Cuando Una Long Tail No Es Suficiente) (2008).
↑5 Ã’scar Celma, Music Recommendation and Discovery in the Long Tail, (2008).
↑6 21 Seton Hall Journal of Sports and Entertainment Law 61 (2011).
↑7 For example, The Washington City Paper notes that The Nutcracker provides 20% of the Washington Ballet’s total ticket revenue each year; The Cincinnati Ballet received 51% of its annual revenue from the Suite in 2008-09.
↑8 In Defense of Copyright, pp 87-88.