Ishkur’s Guide to Electronic Music has long recognized by fans of electronic music for its comprehensive andÂ irreverentÂ descriptions of the numerous and protean sub-genres of the musical form. Kenneth John Taylor, the author of Ishkur’s Guide, makes this observation about Miami bass:
Every few years, like clockwork, a Miami Bass track will come out of nowhere and get REALLY big on the Top40 charts. It happened with Tag Team’s “Whoomp there it is”. It happened with 69 Boyz’ “Tootsee Roll”. And it happened (unfortunately) again with Baha Men’s “Who Let the Dogs Out.” For such a fun genre, I’m still trying to figure out why this happens with only a select few songs, and not all of them. Like, for instance, why did Tag Team’s “Whoomp! There it is” make it big and not 95 South’s “Woot! There it is”, when they are practically the same song?
One of the Miami bass groups that did get really big on the charts was 2 Live CrewÂ â€” the group had seven studio albums that entered the Billboard 200 during the 80’s and 90’s. Sometimes called the “godfathers” of Miami bass, 1John Leland, Singles column, Spin Magazine, pg 76 (February 1989). the Crew was also notorious for writing lyrics that, to say the least, would make a sailor blush.
In 1989, the group released their third album, As Nasty as They Want to Be. At the same time, a “sanitized” version of the album,Â As Clean as They Want to Be, was released. 2I’m relying primarily on Mathieu Deflem’s Rap, Rock, and Censorship: Popular Culture and the Technologies of Justice,Â Paper presented at the annual meeting of the Law and Society Association, Chicago, May 27-30, 1993, for details about 2 Live Crew and the Parents Music Resource Center in the discussion that follows. In a curious stroke of circumstance, both of these albums resulted in the band going to court, but for entirely different reasons.
Prurient Interests and Parody
As Nasty as They Want to Be was almost immediately criticized for its objectionable lyrics. Several record store employees in various parts of the country were even arrested for selling the album to minors. 2 Live Crew fought back in Broward County, Florida, in response to actions taken by the Sheriff’s Department to discourage sale of the album.
The ensuing case made its way to the 11th Circuit Court of Appeals, which had to determine whether the album was considered “obscene” under the test laid out by the Supreme Court in Miller v. California. 3413 US 15 (1973).Â Under the Miller test, obscenity is determined by asking “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interestÂ â€¦Â ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”Â In Luke Records v. Navarro, noting that this was “apparently the first time that a court of appeals has been asked to apply theÂ Miller test to a musical composition,” the 11th Circuit concluded that, since there was no evidence presented that the work lacked “serious artistic value,” the album was not obscene. 4960 F.3d 134 (1992).
Just eight days after the 11th Circuit’s decision in Luke Records was handed down, 2 Live Crew’s lawyers were in front of the 6th Circuit for oral arguments in a separate case.
Along with cleaned-up versions of songs, As Clean as They Want to Be included the song “Pretty Woman”, not present on As Nasty as They Want to Be. The song was a raunchy take on Roy Orbison’s rock ballad, “Oh, Pretty Woman.” Music publisher Acuff-Rose Music had denied 2 Live Crew a license to parody the song; 2 Live Crew recorded and released it anyway, and Acuff-Rose sued for copyright infringement.
The 6th Circuit reversed the District Court’s holding that 2 Live Crew’s version of the song was a fair use, 5Acuff-Rose Music v. Campbell, 972 F.2d 1429 (1992).Â and the decision was appealed to the Supreme Court. In one of copyright’s seminal decisions, the Supreme Court reversed the 6th Circuit and held that 2 Live Crew’s parody was a fair use, despite its commercial nature and the amount of expression borrowed from the original. 6Campbell v. Acuff-Rose Music, 510 US 569 (1994).
As the Court pointed out in Campbell, fair use often serves the same function of copyright protection itself â€” to promote the progress of the useful arts. Twenty years earlier, a different court had noted that “the development of ‘fair use’Â has been influenced by some tension between the direct aim of the copyright privilege to grant the owner a right from which he can reap financial benefit and the more fundamental purpose of the protection ‘ToÂ promote theÂ Progress of Science and the useful Arts.'” 7Williams & Wilkins Company v. U.S., 487 F.2d 1345, 1352 (Ct. of Claims 1973). This promotion of the progress, said the Court in Campbell, is “generally furthered by the creation of transformative works”Â â€” works that include parody, which “can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”
Had either case gone the other way, we would have had some interesting results. 2 Live Crew’s music could have been found to be both lackingÂ “serious literary, artistic, political, or scientific value” yet promoting the progress of the useful arts, or vice versa.
Content Industries’ Defense of Free Speech
While 2 Live Crew’s coinciding legal battles involving free expression and copyright are interesting trivia, they lead me to a broader point about connections between the two issues. Copyright is sometimes criticized as stifling creativity â€” yet 2 Live Crew’s success at the Supreme Court shows otherwise. And if we dig deeper into the Crew’s obscenity case, we can begin to see, perhaps, that copyright law even played some part in the favorable outcome for the group there.
In the past decade or so, there has been increasing academic interest in the relationship between the First Amendment and copyright law. 8I previously listed a number of articles on this subject in Copyright and Censorship, see especially footnotes 15, 16, and 17. Additionally, as content industries look for more effective methods of addressing online piracy, critics have ratcheted up their attempts to equate copyright protection with censorship. 9See, for example, ICE Seizures Criticism: Magic Words for examples of the criticism surrounding the seizure of domain names as property facilitating copyright infringement.
But what’s often ignored is the contributions of content industries to the protection and expansion of first amendment rights.
Artistic expression, political dissidence, and religious heterodoxy form a sort of free speech triumvirate that has been the target of content regulation most frequently by most societies throughout history. I previously discussed the proclivity for regulating creativity inÂ Artistic Expression, the First Amendment, and Copyright. As the RIAA states, “The history of our nation’s music is also a history of those who would censor that creative expression, afraid of what it explores and exposes.” For a closer look at how pop music in particular has been targeted, check out The History of Banned Rock ‘n’ Roll by blogger Nikkieg23, which includes such anecdotes as this one from 1955: “Police in Bridgeport, Connecticut cancel a dance at the Ritz ballroom featuring Fats Domino. Authorities say the cancellation is because they discovered that ‘rock and roll dances might be featured'”.
2 Live Crew’s brush with obscenity resulted in a flood of academic attention. 10See Deflem’s article linked above. But the tension between ‘obscene’ music and the law had been increasing for some time before the 11th Circuit’s decision.
In 1985, the Parents Music Resource Center (PMRC) was formed to confront what was seen as a problem with pop music lyrics that were sexually suggestive or glorified violence. The Center’s founding members included several wives of politicians, including Tipper Gore, so it was able to quickly gain traction in Washington. Its goal was to pressure the music industry into taking a number of steps to prevent children from being exposed to explicit music, though some of the Center’s husbands wanted the government to step in.
Senator Hollings, whose wife was affiliated with the PMRC, said at a Senate Committee hearing on Contents of Music and the Lyrics of Records, “I will be looking from the Senator’s standpoint, not just to bring pressures to try to see if there is some constitutional provisions to tax, but an approach that can be used by the Congress to limit this outrageous filth, suggestive violence, suicide, and everything else in the Lord’s world that you would not think of. Certainly the writers and framers of our first amendment never perhaps heard this music in their time, never considered the broadcast airwaves and certainly that being piped into people’s homes willy nilly over the air.”
The RIAA strenuously opposed the PMRC’s efforts. It did agree to place warning labels on records with explicit content after initially resisting the idea, but refused the other steps suggested by the Center, seeing them as an affront to its members’ expressive integrity. In a letter to the PMRC, the RIAA said, “the music industry refuses to take the first step toward a censorship mode to create a master bank of ‘good/bad’ words or phrases or thoughts or concepts”.
The parental advisory labels adopted by the RIAA were inspired in part by the movie rating system which the MPAA uses.
Since practically the beginning of the movie industry, the medium was subject to censorship. By the 1920’s, encouraged in part by a Supreme Court decision that the First Amendment did not protect motion pictures, 11Mutual Film Corporation v. Industrial Commission of Ohio, 236 US 230 (1916). numerous states and local governments had censorship boardsÂ â€” administrative bodies whose job was to determine what individuals were allowed to see. But as the film industry grew in size and importance, it began to make moves against the outright censorship of motion pictures.
The forerunner of today’s MPAA, the Motion Pictures Producers and Distributors Association, was formed in 1922 as an industry trade and lobbying organization. It began self-regulating the content of its members, fearing that censorship might make it to the federal level. From 1930 until 1968, the Motion Picture Production Code (commonly referred to as the “Hays Code” when it began) set guidelines for film studios about what type of content was appropriate. It was eventually replaced by the movie ratings system that we’re familiar with today, a voluntary system that describes rather than proscribes the content of films.
Attitudes about the legitimacy of motion pictures as expression also changed during this time. The Supreme Court went from considering films as “spectacles”, not a “part of the press of the country”Â or an “[organ] of public opinion”, as stated in Mutual Film Corporation, to having “no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment” in 1948. 12US v. Paramount Pictures, 334 US 131, 166. In 1952, the Supreme Court overturned the holding in Mutual Film Corp. and recognized that the First Amendment extends to motion pictures. 13Joseph Burstyn v. Wilson, 343 US 495. The Court declared a number of movie censorship laws unconstitutional in the years that followed. 14See Superior Films v. Department of Education of Ohio, 346 US 587 (1954); Kingsley Int’l Pictures v. Regents of the Univ of NY, 360 US 684 (1959); Freedman v. Maryland, 380 US 51 (1965); Interstate Circuit v. Dallas, 390 US 676 (1968).
Today, content industry groups like the MPAA and RIAA continue to work toward protecting the free expression rights of their mediums and members. For just one example, see the MPAA’s brief, joined by other trade groups and unions, in Schwarzenegger v. Entertainment Merchants Association, currently before the Supreme Court, arguing that California’s prohibition on the sale of violent video games to minors is unconstitutional.
Copyright’s Role in Protecting Rights
It’s fair to say that creators of all stripes today in the US are more free to express themselves than in decades past. Audiences too can access a wider range of ideas because of this freedom â€” making their own choices of what to experience rather than having those choices made for them.
And as discussed above, industry groups and trade organizations have undoubtedly played some role in the expansion of that freedom. That they have should not come as a surprise. True, they are motivated largely by self-interest. A company engaged in producing and distributing content wants the broadest latitude of what is acceptable content in a society as possible. Government limits on that latitude, like obscenity laws, increase the risks and costs of the company â€” either subjecting the company to liability after publication or increasing the time and money spent on ensuring compliance before publication. But self-interest is not a bad thing, as Adam Smith pointed out over 200 years ago. 15“It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” An Inquiry Into the Nature and Causes of the Wealth of Nations (1776). And when self-interest coincides with expanding fundamental freedoms for everyone, that’s certainly a good thing.
It also seems evident that the expansion of these rights would not have been as quick or effective absent these groups. Groups have bigger influence than individuals on policy, especially when the interests at stake are diffuse, as is the case with freedom of speech.
Most importantly, however, is the fact that the existence of content industries, and the fact that they have been able to grow and develop to such an extent, owes a great deal to the existence of copyright. The law provides a stable rights system that has encouraged the development of industries devoted solely to the creation of content for content’s sake. The amount of investment in the creative industries would be greatly diminished absent such a system.
Copyright’s role in protecting free speech rights is just one of the values it has for society. It is just one of the reasons why, despite the challenges of the law posed by digital technology and the internet, copyright should continue to serve as the framework for producing and distributing creative works rather than be discarded or hamstrung.
It’s unlikely that James Madison had this concept in mind when he talked about the Copyright Clause of the Constitution in the Federalist Papers, but his words are just as applicable. When it comes to copyright, “The public good fully coincides â€¦ with the claims of individuals.” 16Federalist No. 43.
|↑1||John Leland, Singles column, Spin Magazine, pg 76 (February 1989).|
|↑2||I’m relying primarily on Mathieu Deflem’s Rap, Rock, and Censorship: Popular Culture and the Technologies of Justice,Â Paper presented at the annual meeting of the Law and Society Association, Chicago, May 27-30, 1993, for details about 2 Live Crew and the Parents Music Resource Center in the discussion that follows.|
|↑3||413 US 15 (1973).|
|↑4||960 F.3d 134 (1992).|
|↑5||Acuff-Rose Music v. Campbell, 972 F.2d 1429 (1992).|
|↑6||Campbell v. Acuff-Rose Music, 510 US 569 (1994).|
|↑7||Williams & Wilkins Company v. U.S., 487 F.2d 1345, 1352 (Ct. of Claims 1973).|
|↑8||I previously listed a number of articles on this subject in Copyright and Censorship, see especially footnotes 15, 16, and 17.|
|↑9||See, for example, ICE Seizures Criticism: Magic Words for examples of the criticism surrounding the seizure of domain names as property facilitating copyright infringement.|
|↑10||See Deflem’s article linked above.|
|↑11||Mutual Film Corporation v. Industrial Commission of Ohio, 236 US 230 (1916).|
|↑12||US v. Paramount Pictures, 334 US 131, 166.|
|↑13||Joseph Burstyn v. Wilson, 343 US 495.|
|↑14||See Superior Films v. Department of Education of Ohio, 346 US 587 (1954); Kingsley Int’l Pictures v. Regents of the Univ of NY, 360 US 684 (1959); Freedman v. Maryland, 380 US 51 (1965); Interstate Circuit v. Dallas, 390 US 676 (1968).|
|↑15||“It is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” An Inquiry Into the Nature and Causes of the Wealth of Nations (1776).|
|↑16||Federalist No. 43.|
â€œIt is not from the benevolence of the butcher the brewer, or the baker that we expect our dinner, but from their regard to their own interest.â€
Love that quote.
I am not sure I agree that copyright enhances freedom of expression, though I do agree that it does provide encouragement for authors to come forth with original expression for the benefit of all.
What I certainly do agree with is that industry associations have played a significant role in preserving First Amendment rights of authors. People can excoriate such associations all they want (as seems to be popular in some circles), but it is undeniable that these associations, in conjunction with individual content producers and others, have had, and will continue to have, a major impact in the development of First Amendment jurisprudence in a manner that preserves the rights of speech and of the press.
It can be argued that those very same connections limit artists in their expression. Take for example, Matt Stone and the problems that arose when one of his movies had to go to the MPAA to be released.
There’s plenty of criticisms to a centrally controlled database that does not cater to the independents that fuel the future success of the industry. Basically, only the really successful are allowed to choose the rating they want, making it more difficult for younger movie makers to achieve financial success. So the natural conclusion of this tale, is that the labels work best IF their incentives coincide with those of the public as well as the movie directors themselves.
It’s very difficult to say that copyright allows this train of thought, when there are plenty of movies, made by independent film makers, who had no access to the big screen in the past, so were quite limited in their expression. What it seems that this article is saying, it’s that you have to be a member of these “clubs” in order to have attained the right to express yourself as needed for your craft.
>>>It can be argued that those very same connections limit artists in their expression.
But if should be pointed out that – to my knowledge, and maybe Terry knows better – no U.S. court has ever found that copyright limits expression.
>>>What it seems that this article is saying, itâ€™s that you have to be a member of these â€œclubsâ€ in order to have attained the right to express yourself
I think you misunderstand. More important, if you think that 2 Live Crew was a member of a “club” – either formal or not – you don’t know anything about hip-hop, period, full stop. Get schooled.
>>>Itâ€™s very difficult to say that copyright allows this train of thought, when there are plenty of movies, made by independent film makers, who had no access to the big screen in the past, so were quite limited in their expression.
What the heck does this mean? Copyright does not allow a train of thought – that doesn’t make sense. As far as independent filmmakers and their access to screens, this has gotten better – hurrah! But what does this have to do with copyright? Copyright allowed those indies to get the funding they needed – and secure the distribution that gave them access to screens in the first place. Do you think the Weinsteins would have invested in or bought indie films if they couldn’t make money on them? That’s just not true.
It has become much easier for anyone to make movies, record albums, or distribute writing – and that’s great. But copyright has *helped* that process – not hindered it. People like you applaud our current creative atmosphere, then turn around and express disdain for the legal structure under which it developed. If U.S. laws are so bad, why is our creative output – compared to any other country at any other time in history – so good? You and the likes of Lessig seem to argue that creativity is at an all time high – therefore we must change all our laws now. That doesn’t pass the laugh test. Nor does your grammar.
“>>>What it seems that this article is saying, itâ€™s that you have to be a member of these â€œclubsâ€ in order to have attained the right to express yourself
I think you misunderstand. More important, if you think that 2 Live Crew was a member of a â€œclubâ€ â€“ either formal or not â€“ you donâ€™t know anything about hip-hop, period, full stop. Get schooled.”
I was referring to a trade industry, that supposedly protects its members to the detriment of those that prefer a more independent route. Since they had to pay dues to the RIAA, that was the “club” I was referring to.
If you read my first paragraph, I’m referring to Matt Stone and his problems with the MPAA setting rules that independents must follow. The proof is in the fact that their movie was rated poorly so the audience was limited.
” Copyright allowed those indies to get the funding they needed â€“ and secure the distribution that gave them access to screens in the first place. Do you think the Weinsteins would have invested in or bought indie films if they couldnâ€™t make money on them? ”
Eazy E (NWA) didn’t get money from copyright. He started a label from drug money. He was extremely shady in his business dealings to the other members of the NWA, skimming money from sales and undercutting the other members such as Ice Cube, who left. Other performers went to figure out how to make money with the technology at hand at the time. I have less belief that copyright gave them access to funding because of the barriers there were in the 90s. If anything, copyright was used
There are plenty of movies from the 90s that weren’t aired in theaters because they weren’t endorsed by the MPAA. When you get into the music side, there’s extensive talks about the accounting that goes into funding labels.
This is the way that copyright works as a hinderance. It also works as a hinderance for newer ways to find music such as Spotify, iMeem, etc, where people can listen to music before they decide to buy. In regards to movies, there are quite a few ways that they are being financed, and it’s not through any central industry entity, which I see as a good thing. Kevin Smith is doing well to get in the red. Atlas Shrugged seems to be doing quite well despite only using alternative business models.
What frustrates is most frustrating is believing that copyright is the only way to promote yourself. The idea that the industry will always fight for the little person doesn’t add up to the reality that is professed. To think that the best way to promote yourself is through the industry, doesn’t necessarily add up today.
“People like you applaud our current creative atmosphere, then turn around and express disdain for the legal structure under which it developed. If U.S. laws are so bad, why is our creative output â€“ compared to any other country at any other time in history â€“ so good? ”
Last I checked, Lessig has less to do with copyright and more about changing Congress. Why bring him into the conversation? Yes, I read his books and they greatly influenced me. But it seems rather questionable to have you bring up his name when his current interests lie elsewhere.
Regardless, I merely want to see the US do better by having laws that aren’t so heavily one sided. The DMCA takedown notices have chilling effects, hurting innovation. You have trade groups and estates using the laws to bully smaller businesses. And reading the likes of Joe Karaganis and his “Media Piracy” book shows how effective the enforcement of copyright really is, not only in the US, but in other countries as well.
If copyright is supposedly helping artists, why is it that artists are having more success independently than through the regular channels? That’s the question that no one is actually answering.
“It can be argued that those very same connections limit artists in their expression. Take for example, Matt Stone and the problems that arose when one of his movies had to go to the MPAA to be released.”
The rating system, while very flawed, has absolutely nothing to do with copyright.
“Eazy E (NWA) didnâ€™t get money from copyright.”
“There are plenty of movies from the 90s that werenâ€™t aired in theaters because they werenâ€™t endorsed by the MPAA. When you get into the music side, thereâ€™s extensive talks about the accounting that goes into funding labels…this is the way that copyright works as a hinderance.”
MPAA ratings and label accounting have nothing to do with copyright.
“Kevin Smith is doing well to get in the red.”
“Atlas Shrugged seems to be doing quite well despite only using alternative business models.”
Doing “quite well” on a VERY small scale. Sure.
And “ONLY” using alternative business models? Please. Hell, while were on the subject what do you think these supposed “alternative business models” actually are? Merchandising and a theatrical run is nothing new and nothing out of the ordinary. As far as grassroots marketing goes, it isn’t doing anything that Mel Gibson didn’t already do seven years ago (to much better effect both creatively and financially).
“If copyright is supposedly helping artists, why is it that artists are having more success independently than through the regular channels?”
This is a ridiculous statement for two reasons: 1) You are trying to pretend your paltry list of exceptions are actually the rule and 2) “independent” != “sans copyright”.
“Thatâ€™s the question that no one is actually answering.”
There’s a good reason for that…lol
“No one is answering it because you made it up.”
Ding! Ding! Ding!.
>>>I was referring to a trade industry, that supposedly protects its members to the detriment of those that prefer a more independent route. Since they had to pay dues to the RIAA, that was the â€œclubâ€ I was referring to.
And you referred to it wrongly. First, 2 Live Crew was a group and the RIAA is an association of labels – the group couldn’t join *even if it wanted to.* Second, the 2 Live Crew albums came out on the indie label Skywalker Records, later known as Luke Records. Since it’s not a major, it didn’t pay dues to the RIAA. This is easy to look up. No label “has to” pay dues to the RIAA – some choose to, while others don’t. This, too, is easy to look up. Where in the world did you get your ideas about the RIAA; they’re totally wrong.
>>>If you read my first paragraph, Iâ€™m referring to Matt Stone and his problems with the MPAA setting rules that independents must follow. The proof is in the fact that their movie was rated poorly so the audience was limited.
This has absolutely nothing whatsoever to do with copyright. Why would you think it did?
>>>Eazy E (NWA) didnâ€™t get money from copyright. He started a label from drug money. He was extremely shady in his business dealings to the other members of the NWA, skimming money from sales and undercutting the other members such as Ice Cube, who left.
Eazy wasn’t as much of a drug dealer as he’d have you believe. Ruthless got funds from Jerry Heller, a businessman who invested his money because of – wait for it – copyright! Obviously, copyright doesn’t *give* anyone money to start a label. But by ensuring artists can get remunerated for their work, it encourages others to invest – which gives creative ventures money to grow. A few rappers have said they started labels with drug money, but if you believe all of them you probably believe what you see on the WWF.
>>>What frustrates is most frustrating is believing that copyright is the only way to promote yourself. The idea that the industry will always fight for the little person doesnâ€™t add up to the reality that is professed.
Copyright isn’t a way to promote yourself – it’s a way to earn money. You can promote yourself however you wish – traditional radio, inventive Internet promotion, or giving music away online (which is totally possible with copyright). Copyright is a way to sell things. And reality isn’t professed – that doesn’t track grammatically.
>>>If copyright is supposedly helping artists, why is it that artists are having more success independently than through the regular channels?
Copyright helps artists of all sizes, some indie, some mainstream. You’re mixing up two things. You seem to hate the RIAA and MPAA for somehow keeping other businesses down. You also hate copyright. But these things have very little to do with one another. You can believe them both, of course – but they’re not related at all.
>>>Last I checked, Lessig has less to do with copyright and more about changing Congress. Why bring him into the conversation? Yes, I read his books and they greatly influenced me.
I bring Lessig into the conversation because everyone who reads his books labors under the same misapprehensions. His books are filled with misinformation and outright lies, and every organization he’s involved with is funded by Google. If you got information from other sources, you wouldn’t be so confused.
You couldn’t pay me to igonre these posts!
“If copyright is supposedly helping artists, why is it that artists are having more success independently than through the regular channels? Thatâ€™s the question that no one is actually answering.”
No one is answering it because you made it up.
And please don’t try and self-cite yourself for “proof” as you have commonly been known to do.
An interesting turn of events. 2 Live Crew is named in a complaint against Limewire:
Not sure what you’re referring to in regards to Kevin Smith (Google can help) or Atlus Shrugged. But if you don’t want to read the information, it’s your choice.
>>>â€œEazy E (NWA) didnâ€™t get money from copyright.â€
This is silly. When Eazy’s albums sell, he gets royalties. Or, at least, he should.
Also, some of the alternative business models you mention *depend on copyright*. Kevin Smith books theatres to show his new movie. Why can he do this without having to compete with other theatres that show the movie for free? Copyright!
Why can theatres show Atlas Shrugged without worrying about other theatres showing it for free? Copyright!
In both cases, artists used interesting business models to succeed (modestly, I think) outside the studio system. That’s great! But the did so *because* of copyright, *not* despite it.
In other words, congratulations, you just showed why our copyright laws are so effective. Well done.
“Also, some of the alternative business models you mention *depend on copyright*. Kevin Smith books theatres to show his new movie. Why can he do this without having to compete with other theatres that show the movie for free? Copyright!”
You can still see the movie online for free. It’s not hinging on copyright, it’s hinging on providing another scarcity (himself) that people pay $60 for. Better yet, he allows the movie to be viewed on his website, free of charge. I’m not sure of all of the details, but I doubt Smith would get mad at a theater for playing a movie without his permission. There’s quite a few flaws with the movie theater system, such as camming laws or the release windows, which need fixing.
“The rating system, while very flawed, has absolutely nothing to do with copyright.”
If the MPAA, who is strongly advocating all artists to go to them for protection, is frustrating the independent artists, it’s very difficult to say the trade industry is an advocate for artist’s rights.
The flick cost $5mil to make, but $4mil after the California tax incentive. One of the only things Jon and I promised the Red State investors in exchange for letting us handle American theatrical distribution ourselves was that their $4mil would be covered as soon as possible â€“ something very few other production entities can promise or even offer. Invest a million dollars in almost any production, and you rarely if ever get your money back within five years, let alone the one year itâ€™s looking like itâ€™s gonna take for our guys to make their money back.
Add up all those figures above and youâ€™ll notice our gains are higher than our spending. And without any dopey marketing figures to have to recoup, once we close the aforementioned deals (which Jonn Sloss & LawCo are working to close as we speak), simple math dictates Red State is in the black â€“ long before any wide release. Thatâ€™s music to the ears of any investor who only put up their money in September.
Further reading from Kevin
It’s a fairly common investment model in the movie business; but since industry math can be byzantine, investors rarely see their investment back for years (in some cases, a decade). Since we have no marketing to stand behind in recoupment (and since the budget was so low in the first place), once the DVD/BD/VOD/streaming deals close, we’re in the black. Basically, that means all money that comes in beyond the budget recoupment is now profit for The Harvey Boys to split with our two investing partners.
And â€œONLYâ€ using alternative business models? Please. Hell, while were on the subject what do you think these supposed â€œalternative business modelsâ€ actually are?
Both came to the conclusion independently, of not using TV ads or outsourcing advertising. If I remember, it took 17 years to make Atlus Shrugged because of merchandising (copyright) issues or something to that effect, when finally the producer finally said “Screw it” and made the movie. The 17 years, I’m sure of. The exact issues of that I have no idea on.
“This is a ridiculous statement for two reasons: 1) You are trying to pretend your paltry list of exceptions are actually the rule and 2) â€œindependentâ€ != â€œsans copyrightâ€.”
When I say “independent”, I’m meaning away from those trade industries that this article professes might have relevance. The better word would have been “traditional”.
Actually, if you want, I could bring up a larger list, I just keep it focused on the movie industry since that’s the main one I brought up. In regards to video games, Portal 2 was released and loosened the IP to allow third parties to make a fun game. The Humble Indie Bundle is on its third iteration, making close to a million dollars. People are still playing Minecraft, and I’ve yet to see anyone counter the numbers he makes.
In regards to music, Jamendo is still going strong. Magnatune with its 50-50 split model has been around for quite some time. There are separate, independent artists and song stores to the industry ones. Yes, their songs are automatically copyrighted because of the automatic “opt in” effect of copyright. However, are they enforcing it, or are finding other ways to make money?
That’s the flaw that I see in Nanker’s argument. You can’t say that all proceeds are being taken from copyright, when it’s careful negotiations or reliance on different aspects of a business. If a writer puts up a pdf, it’s easy to say copyright protects him. But it’s a dubious claim. If his/her digital good spreads to New Zealand not only through Amazon but TPB, how is copyright protecting that good? DRM? We’ve moved away from most DRM schemes, because they actually hurt legal customers.
Litigation? Again, it’s quite ineffective. Now we just have “sue and settle” lawsuits, which are going the way of the dodo.
Education? I could honestly say there’s been a number of pieces saying “filesharing is bad” or “don’t see this movie on the internet” or something to the degree of “respect copyright”. The problem is, all efforts ring hollow to what technology allows. “Don’t copy” – Well, people now have tools to copy a DVD at their own discretion. “Don’t fileshare” – More networks are coming up than going down. “Don’t go to [“rogue” site A]” – Okay, rogue site B, then when rogue site A comes back up, go back there.
If a movie is put on Youtube for free (let’s say Clerks 1, since we’re talking about Smith), and it’s not put up by the director or the producer, then how is copyright supposedly paying the director? A DMCA takedown pisses people off. But odds are, if the producer/director made their movie available on the internet, everyone would go there and the director/producer makes money off the revenue.
“Copyright helps artists of all sizes, some indie, some mainstream. Youâ€™re mixing up two things. You seem to hate the RIAA and MPAA for somehow keeping other businesses down. You also hate copyright. But these things have very little to do with one another. You can believe them both, of course â€“ but theyâ€™re not related at all.”
It’s a notice that trade industries seem to have a lot of sway in the laws passed. It’s a constant frustration that the laws passed are ineffective to what is needed in the realm of doing business.
In regards to copyright, I don’t see it paying the artists through the time period that we’re looking at, but being used to give power to the labels involved. Looking at the 90s, there were a lot of movies that I didn’t even hear about until just recently. They weren’t advertised in theaters, nor did I see them until I looked around on a few movie sites for “movies of the 90s” (read: IMDB). The problem, as I noted, is that some of these movies dealt with controversial topics that the MPAA would not have allowed. Subjects such as teen pregnancy, or GLBT issues were indeed tackled in these independently filmed movies. But it is very difficult to be given an audience in movie theaters that want to play Jaws 3 or Star Wars (ie the least common denominator) for the benefit of all.
I willingly admit to a skeptical view on copyright, because of all of the harm it seems to inflict on a daily basis. I come here with a skeptical view. I come here and look at the data presented that can reason out why copyright is truly needed in the market place.
When I look at the evidence, and all it is is subjective data basically asking the question “if filesharing wasn’t around, would you have paid for music”, while also being commissioned by the Canadian Intellectual Property Council, who has a vested interest in making the data show up negatively, it reaffirms the negative opinion that copyright isn’t about artists being paid. It’s more about controlling the market, which is detrimental on so many levels. However, some of the writeups and links to other sites are excellent, such as the Joel Tenenbaum article.
[tangent]That’s why I honestly could care less about someone saying “piracy apologist”, “freetard”, “hating copyright” or any of the other comments that detract from an argument. I come here with my own view and opinion, questioning the details to see how they make sense. Copyright, as it currently stands, doesn’t. It doesn’t make sense to have a law that extends to after your death. It doesn’t make sense that a business or person can tell you how to use a song, digital writings, or a game for your entertainment.
The things that make the most sense, putting your product out there to show what you can do. Signalling you exist in this world with your own unique writings, teachings, etc. [/tangent]
Teaming up with a trade industry, should not mean you automatically sign your life away along with your works. What the trade industries do, is advocate your rights to their benefit. I haven’t seen too much in terms of research that proves otherwise.
“First, 2 Live Crew was a group and the RIAA is an association of labels â€“ the group couldnâ€™t join *even if it wanted to.* Second, the 2 Live Crew albums came out on the indie label Skywalker Records, later known as Luke Records. Since itâ€™s not a major, it didnâ€™t pay dues to the RIAA”
Point taken. I was under the impression that the amicus brief meant that they also paid dues to a major label, such as Universal, which indirectly benefitted the RIAA.
“I bring Lessig into the conversation because everyone who reads his books labors under the same misapprehensions. His books are filled with misinformation and outright lies, and every organization heâ€™s involved with is funded by Google. If you got information from other sources, you wouldnâ€™t be so confused.”
I don’t read just his books and I’m always interested in new information. Yes, I still read up on Lessig, but I don’t see how some of the information represented about trade industries (for example) might come up to be false. And just like anything else, I freely admit to my own biases, even as I read other information.
Have a link? I couldn’t find an authorized stream anywhere on the website.
I bet he would.
Camming laws (and penalties) need to be strengthened, I agree.
…I’m getting a strong ESL vibe from you lately. Your posts seem to be increasingly incomprehensible and random. You don’t even appear to be replying to the statements you’re quoting.
According to your various links, the vast majority of revenue Kevin Smith has made with Red State has come from the various EXCLUSIVE distribution deals which any idiot knows are 100% predicated upon copyright.
Larger but still paltry in comparison to traditional media.
There is no revolution, it’s all in your head.
Portal 2’s business model is 100% based upon copyright.
And “pay what you want” is not a business model.
Once again, if you had more “Minecrafts” to point to, rather than just the one, we would all no doubt be more inclined to agree with your baseless optimism.
Internet music streaming is a dead end for content creators. There is ample evidence for this.
Arguments this stupid don’t deserve rebuttals.
Who gives a shit?
The streaming revenue? Give me a break. As usual, you don’t know the first thing about what it is you’re ATTEMPTING to discuss.
You are drunk on Techdirt Kool-Aid.
“Have a link? I couldnâ€™t find an authorized stream anywhere on the website.”
I got it wrong, I thought the Red State of the Union on his website was the movie. My apologies on the bad info.
” Your posts seem to be increasingly incomprehensible and random. You donâ€™t even appear to be replying to the statements youâ€™re quoting.”
The MPAA, is supposed to be about the artists, trying to protect them, as Terry has said here. I didn’t go on about copyright in that sentence, this was a topic of thought in regards to what the article is about. Namely, industry is supposed to work on helping with the expression of the artists. I don’t know how you got that confused with copyright. This entire line of thought was very distinctly an argument about the basis of this very article. You added the copyright claim for whatever reason. I was discussing expression, not copyright.
“I bet he would.”
After he’s already said in an interview how he looked at Clerks 2 on Youtube, I’ll say your statement is false.
“Camming laws (and penalties) need to be strengthened, I agree.”
“According to your various links, the vast majority of revenue Kevin Smith has made with Red State has come from the various EXCLUSIVE distribution deals which any idiot knows are 100% predicated upon copyright.”
Enlighten the class. The only copyright at this current time, from him, doesn’t stop noncommercial filesharing or bittorrents. It just means he makes money on tangible goods (DVDs, VoD, Blue Ray, etc) along with streaming in certain places such as Netflix. Even then, he’s talked about how the industry doesn’t work for him because of the byzantine math in regards to distribution. Link.
Again, for emphasis, copyright is not the issue that is making him money. The very specific issue that Kevin Smith has had to deal with is selling his rights to the movie. He made the movie for $4 million dollars. If he sold it at Sundance, he would have had to make triple that, to pay his investors, because of Hollywood Accounting. He chose not to do that. Copyright doesn’t have much, if anything to do with business decisions. Nanker has made the argument that copyright is a way to sell things. You’ve yet to really nail down how copyright is “100%” for business.
Copyright is not helping in this. Copyright is not the business model he has chosen, it’s not the distributors he’s chosen to work with. The specific parts of copyright, that technology seems to make obsolete, is distribution. He’s chosen how he wants to model the Red State. He went around the US and showed it in movie theaters for $60+ dollars. But he brought himself to do Q&A after showing the movie. What other director will do that and make a tour worth the customer’s time? Back to the main part. Kevin Smith isn’t going to get bent out of shape from someone using Bittorrent or seeing the movie from a streaming site. That has already been established and you can ask him on Twitter if you want.
“Portal 2â€²s business model is 100% based upon copyright.”
Valve has a much looser corporate culture than many companies of such a large size, and Dejobaan took advantage of the opportunity to play in Valve’s sandbox. “One of the coolest things about the process was Valve letting us blatantly (ab)use their IP,” Jaitley told Ars. The developers were able to place portals in games, they were given access to Valve’s textures and assets from the game, and Dejobaan even recorded a new version of “Still Alive” to use in a new level created for the promotion
Read the rest of the details for yourself. When a company makes a trailer with a copyright notice that says “LOLOLOLOL” I highly doubt they’re looking to piss off their community with copyright notices. Especially when Gabe Newell has gone on record for saying he’s looking to add value to the games his company makes. It should also be noted that the community of modders actually make items for some of the games, with Valve actually cutting a check of $40K to one modder. 100% copyright? Or finding new ways to do business and add value to your games? It’s the latter, and I’m sure you’ll say otherwise.
And â€œpay what you wantâ€ is not a business model.”
True. But I don’t see you denying that it’s worked for the HIB.
“There is ample evidence for this.”
Dead end how? Magnatune has been around for how long? How about Jamendo for the musicians? You seem to be great at wanting to dissect my posts but you never give any substance to yours.
“The streaming revenue? Give me a break. As usual, you donâ€™t know the first thing about what it is youâ€™re ATTEMPTING to discuss.”
It’s an example, an idea, that perhaps has validity or can be expanded upon and made to work. Far more than some mere dismissal where you don’t even discuss your way of thinking.
“You are drunk on Techdirt—”
Because you didn’t read it the first time:
“Thatâ€™s why I honestly could care less about someone saying â€œpiracy apologistâ€, â€œfreetardâ€, â€œhating copyrightâ€ or any of the other comments that detract from an argument. “
Could you please post here and on Techdirt more often? Your clarity is refreshing.
Freedom of speech is about permitting free political and religious expression and criticism. Obscenity “protection” serves no worthy political, social, or religious ideal. Therefore, obscene expression can certainly be restricted.
No. Here is your original quote that gave rise to our replies: “There are plenty of movies from the 90s that werenâ€™t aired in theaters because they werenâ€™t endorsed by the MPAA. When you get into the music side, thereâ€™s extensive talks about the accounting that goes into funding labels…This is the way that copyright works as a hinderance.”
So that’s your “whatever reason”. Your own words. Where you overtly conflate copyright with the MPAA and label accounting practices.
DVD, VoD, Blu-Ray, and Netflix distribution deals are ALL predicated upon copyright.
This couldn’t be more obvious.
What “rights” would he sell without copyright, exactly? I’m having a hard time believing you’re as stupid as you appear to be, I’m trying my best to give you the benefit of the doubt, but there really is no other possible explanation for it…you are either a troll or a complete and utter imbecile.
You simply do not know what you’re talking about. You are talking out of your ass.
There is NOTHING in that link that refutes my statement. They HIRED a third party to make additional content, fully authorizing and licensing him to do so. This isn’t an example of a “new business model”. This isn’t going beyond the bounds of copyright. Valve hasn’t released the game for free. Valve is a company based entirely upon copyright. They are in the business of selling infinitely replicable copies of their games. They are able to do this because of copyright. It’s a direct relationship. As usual, you are grasping for anti-copyright straws where none exist and it’s nothing short of…pathetic.
A gag in a trailer doesn’t change the fact that every product Valve has ever made is copyrighted and every Valve-affiliated game package, EULA, and website has “All Rights Reserved” copyright notices affixed.
Pandering to freetards by begging for charity like a common street urchin can indeed work if the product in question is a simple, low budget, single player flash game.
This has no implications for EA, Valve, or any other traditional video game studio/corporation.
I didn’t say it was a dead end for the streaming sites themselves. They don’t have to pay for their stock, they only have to pay for bandwidth. That’s a great business! The 50-50 split you’re so proud about is also hilarious, by the way. They don’t pay a penny towards anyone’s production and they want HALF?! of everyone’s revenue?
What a joke.
Streaming is unarguably a financial dead end for MUSICIANS.
Feel free to chime in when reality actually corroborates your Utopian delusions. Until then…
Stop drinking the Techdirt Kool-Aid.
And stop talking out of your ass.
As the kids say, +1 Technotopia.
Jay, try showing this new Kevin Smith movie in a theatre and see how fast he sues. The ability to “loosen copyright” is based on copyright. You are really mixing up several different issues in a very fundamental way. If you are really interested in learning more, Paul Goldstein’s “Copyright’s Highway: From Gutenberg to the Celestial Jukebox” is the best centrist introduction to the subject for a general audience.
“No. Here is your original quote that gave rise to our replies: â€œThere are plenty of movies from the 90s that werenâ€™t aired in theaters because they werenâ€™t endorsed by the MPAA. When you get into the music side, thereâ€™s extensive talks about the accounting that goes into funding labelsâ€¦This is the way that copyright works as a hinderance.â€”
That wasn’t what you quoted. You quoted from my first post, which was very clearly about expression. The rating system didn’t have anything to do with copyright, especially if you watched the video. You’re also mixing my words and intentions.
“So the natural conclusion of this tale, is that the labels work best IF their incentives coincide with those of the public as well as the movie directors themselves.” The copyright came later as Nanker was saying I was putting up a post linking to copyright.
“This couldnâ€™t be more obvious.”
You keep saying the same thing, but you aren’t explaining yourself at all. It’s the most frustrating thing. You say that every last thing is predicated by copyright. The negotiations and licensing deals he (Smith) made aren’t copyright. It’s not a copyright issue in the sense that he’s not litigating or trying to push a monopolistic approach. He, just like all the other examples (such as Valve) are adding value to a service that they provide. That’s what’s clear and obvious, not the copyright issue. He has a legion of fans, he shows them a movie. He sits with them through it. More value. All the copyright issues, I don’t see them with Smith. He didn’t see the value of opening weekend box offices, and decided to market it his way. He’s gone on record of saying he accepts piracy is going to happen and it actually increases the number of people that want to see him.
“You simply do not know what youâ€™re talking about. You are talking out of your ass.”
False. You just never have a counter argument when a point is raised. Every time I bring up anything, you seem to just want to dismiss it because it goes against what you believe. You say copyright is helping artists. I bring up a link that helps to prove otherwise.
Technotopia: “That’s just BS.”
Nothing else. Nothing in the form of “it’s because of ____” or “The argument doesn’t have merit because of ____” so basically you want to stay on some kind of moral high ground for whatever reason when you’re not really refuting points, you’re basically just stopping the debate.
“There is NOTHING in that link that refutes my statement. They HIRED a third party to make additional content, fully authorizing and licensing him to do so. This isnâ€™t an example of a â€œnew business modelâ€. This isnâ€™t going beyond the bounds of copyright. Valve hasnâ€™t released the game for free. Valve is a company based entirely upon copyright. They are in the business of selling infinitely replicable copies of their games. They are able to do this because of copyright. Itâ€™s a direct relationship. As usual, you are grasping for anti-copyright straws where none exist and itâ€™s nothing short ofâ€¦pathetic.”
Gabe Newell (Valve) finds ways to make Steam more valuable than piracy. Last I checked Portal 2 was on The Pirate Bay. I bought my copy. Gabe made $60 from me. All through Steam. He made a more valuable service than what could be offered for free, and he’s been doing this for years. It’s not a direct relationship with copyright. They programmed the game. Laidlaw created a character. Just recently, they released beta tools to allow the community of Steam players to make their own levels. I want you to think about that for a second. They just let go of proprietary tools, to give to the community to add more value to a work. It’s not a view of anti-copyright, or pro-copyright. It’s a look at what has worked to give Valve 70% share of digital distribution. That’s to cater to the customer, make sure the games are fun, and adding value to the service.
Why does Steam have the Saxxy Awards?
Or allow people on a permanent beta?
Or free downloadable content? It’s all to add to the community. There’s very little copyright issues in regards to the games. And I did warn that if a company has “Copyright: LOLOL”, it’s not taking that aspect too seriously. Granted, they affix copyright notices. But imagine what would happen if Valve started doing takedowns of its content. Compare that to how people were angry when EA did that exact thing with its games. It’s not copyright that is giving money to Valve, or telling them how to make a game. Valve made their own distribution channel and advertises through it. Nothing more, nothing less. It’s something that the music and movie industry could do, but refuse. It doesn’t require new copyright laws (such as the recently introduced PROTECT IP ACT), nor does it involve all of the problems of the litigation route.
“I didnâ€™t say it was a dead end for the streaming sites themselves. They donâ€™t have to pay for their stock, they only have to pay for bandwidth. Thatâ€™s a great business! The 50-50 split youâ€™re so proud about is also hilarious, by the way. They donâ€™t pay a penny towards anyoneâ€™s production and they want HALF?! of everyoneâ€™s revenue?”
“I didnâ€™t say it was a dead end for the streaming sites themselves. They donâ€™t have to pay for their stock, they only have to pay for bandwidth. Thatâ€™s a great business! The 50-50 split youâ€™re so proud about is also hilarious, by the way. They donâ€™t pay a penny towards anyoneâ€™s production and they want HALF?! of everyoneâ€™s revenue?”
Looked into it. The artist keeps the rights to all their music (more than what the majors required in ’99), 50-50 split on licensing fees, and artist benefits from licensing and exposure. Not a bad deal, but Jamendo seems to do much more. Then there’s Dmusic.com among other independent music sources so you don’t need to go to the majors.
So it’s confirmed. You really only do a summary glance on any articles, you just want to keep the moral high ground without really discussing anything, and you only do a cursory fact check.
“If you are really interested in learning more, Paul Goldsteinâ€™s â€œCopyrightâ€™s Highway: From Gutenberg to the Celestial Jukeboxâ€ is the best centrist introduction to the subject for a general audience.”
I’ll look into it.
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A good writer is able to convey their intentions clearly. By that standard, you are an abysmal writer.
You’re STILL talking out of your ass. You’re STILL trying to discuss things you obviously know NOTHING about. The licensing and distribution deals Kevin Smith has done are 100% based on copyright. How can you POSSIBLY not understand this? How can you POSSIBLY be this stupid? What would he “license” WITHOUT copyright? What “rights” would he sell WITHOUT copyright? ANSWER THE QUESTION this time, don’t just ignore it like you did before…licensing movies is 100% predicated upon copyright, or at the very least another copyright-based system like creative commons (which Smith DIDN’T use). Exclusive distribution deals are made possible ONLY through the mechanism of copyright. Why do I have to explain something so INSANELY simple to you?
What a ridiculous, disingenuous frame for debate (not to mention a stupidly narrow view of copyright). And yes, EXCLUSIVE distribution deals constitute a “monopolistic approach” (in so far as you recklessly overuse that term).
Again, according to your own links, his in-person tour is his SMALLEST revenue source. According to your own links, the copyright-afforded EXCLUSIVE distribution deals are what has brought in the VAST MAJORITY of revenue for Kevin Smith.
You can’t see it because you’re BLIND DRUNK on Techdirt kool-aid. We’ve already established this.
Selling infinitely-replicable digital copies of their games is not a “service”. They sell copyrighted copies. ALL. RIGHTS. RESERVED.
Very, very, few of your “points” actually deserve a counter argument. Most of your “points” are so stupid, so completely devoid of logic and common sense that they act as their own refutation.
No. I dismiss most of your points because they go against REALITY.
Where? Where is this link that “proves” copyright doesn’t help artists? LOL
(Steam = DRM)
I do agree that Steam has converted some pirates into legitimate customers but that doesn’t mean copyright suddenly becomes extraneous to the business of selling infinitely replicable copies. As always, it remains pivotal.
Valve DID do takedowns of the source code leak a few years ago. They also worked with the FBI trying to get the leaker arrested. I’m sure there’s been more instances. Every single product they make is copyrighted…why don’t YOU think about THAT for a second?
Who cares? It’s THEIR PROPERTY. EA can defend THEIR PROPERTY however they wish including DMCA takedowns. Who cares if freeloaders “were angry” about it? Who gives a FLYING SHIT what freeloaders want?
Yes, “something more” and that something is quite obviously copyright. It is moronic to suggest otherwise.
“Look into it” as much as you want, it’s still a TERRIBLE deal. If you were a musician, rather than a freetard apologist you would understand that. Expecting 50% of EVERYONE’S revenue without contributing a cent to ANYONE’S production is LAUGHABLE.
My facts correspond to reality. Your desperate Techdirt-style spin doctoring doesn’t.
Techtopia: Your arrogance and boorishness might be more well-founded if you had an argument with more merit than “The existence of copyright is beneficial, so therefore maximum-restriction, (possibly eternal) copyright must be more beneficial.” But you don’t and they aren’t.
And I, too, would like to see you post on TechDirt, since they’d likely eat you alive there.
I…I think I’m in love with Technotopia.