Why didn’t the erosion of copyright protection lead to a reduction in the quantity and quality of creators’ output? Is Sheryl Crow wrong that it is all about supply and demand, and that musicians would not create quality albums if consumers were unwilling to pay for them?
Maybe copyright protection is overrated because musicians would continue to create high-quality music even absent copyright protection.
There are two reasons to doubt this conclusion. First, Napster did not occur in a vacuum. The technological improvements that enabled Napster and led to rampant illegal file sharing also coincided with a rapid decline in the cost of creating and distributing digital music. The lower costs of creating and distributing music apparently overwhelmed the adverse effect of rampant copyright infringement on creative output. As Waldfogel noted, “Absent the weakening of effective copyright protection, the other changes in technology might have ushered in an era of even greater creative output.” Second, a decade is a short period for a major occupational transition to take place. Had Napster been allowed to operate in wanton disregard of copyright requirements for several decades, the supply of quality music may have eventually declined, as Sheryl Crow predicted.
The strongest empirical evidence that copyright protection encourages greater musical output and higher quality comes from a historical study of Italian operas. The economists Michela Giorcelli, of the University of California, Los Angeles, and Petra Moser, of New York University, exploited the fact that the timing of Napoleon’s military victories created something of a natural experiment for studying copyright protection, because Italian states that came under French influence by 1801 adopted French copyright laws (copyright for the duration of the composer’s life plus ten years), while states that came under French influence after 1804 did not adopt copyright laws, because by then the French parliament had adopted its civil code, which did not protect copyright.14 So composers in Lombardy and Venice had copyright protection, while composers in Sardinia did not. Piracy was rampant in regions without copyright protection.
Professors Giorcelli and Moser found that the number of operas produced increased by 150 percent in states that became covered by copyright protection, compared with states that did not benefit from copyright protection. Gioachino Rossini is an example of a popular and prolific composer who benefited from copyright protection in Venice and Milan early in his career.
Composers also produced higher-quality operas, as judged by their popularity and longevity, if they were covered by copyright protection. A good example is Giuseppe Verdi, who apparently substituted quality for quantity. Verdi’s publisher even hit upon the idea of using price discrimination to maximize the amount of revenue that could be generated with copyright protection. In a letter he advised Verdi, “It is more advantageous to provide access to these scores for all theaters, adapting the price to their special means, because I obtain much more from many small theaters at the price of 300 or 250 lire, than from ten or twelve at the price of a thousand.”15
Complicated Lines
The connection between copyright protection and incentives for musicians to create innovative, high-quality music in modern times is more complicated than the framers of the Constitution imagined, for several reasons. First, there is no recipe for creativity. The precise factors that lead to new discoveries are hard to predict and even harder to incentivize. In his book Creative Quest, Questlove writes, “We take our ideas where we find them and largely we find them in the works of other artists.”16 On The Roots’ 2013 album with Elvis Costello, Wise Up Ghost, Questlove says, “I’m drumming on it as Steve Ferrone,” an acknowledgment of creativity’s inevitable blurred lines.
To be creative in whatever we are pursuing, Questlove advises, we should unfocus and “refuse to keep things out,” participate in a collaborative environment, “make a point of hanging out with people from different disciplines,” and engage in curatorial thinking. This list is not easily incentivized by copyright protection.
John Eastman told me that innate, intangible talent separates great musicians from the rest:
Beethoven studied with Haydn, and his first two symphonies are almost pure Haydn; his genius broke out in his third and then reached his intellectual apex with his late quartets. And while the Beatles did not study academically like Questlove, they were immersed in the rock ’n’ roll greats who came before.
What differentiates Beethoven and the Beatles, the greatest musical composers, from the just very good is an innate talent, without which one’s work cannot be part of the pantheon of musical greatness. It is this intangible which gives the greatest composers their unique place in the brilliant spine of music.17
Economics research has looked extensively at patent innovation, where it is easier to define and measure creative contributions than in music. After surveying the literature, Petra Moser reached the provocative but probably correct conclusion that “historically, the great majority of innovations have been created outside of the patent systems.”18 Creativity is hard to incentivize in science and music. Perhaps the best insight economics has to offer is a simple one: if there are more people looking to make a new discovery, the more likely it is that a new discovery will be found.19
A second complicating factor in the chain from copyright protection to incentives to create is that music today is a superstar market, with a few stars whose songs strike it rich and numerous others who earn a small amount. As I explained in Chapter 5, luck, timing, and many unpredictable factors matter for popularity, in addition to the intrinsic quality of a song. Even superstars write songs that turn out to be duds. And seasoned professionals at major record labels often cannot predict which songs will be successful. Warner Brothers, for example, chose “The Way I Are (Dance with Somebody)” as the lead single of Bebe Rexha’s third EP. Fortunately for Ms. Rexha, streaming provides fast feedback: Warner quickly noticed that another song on the album, “Meant to Be” (featuring Florida Georgia Line), was doing well. They never anticipated that “Meant to Be” would be streamed more than one billion times and spend over half of 2018 as the number one song on the Billboard Hot Country song chart.20 Very little in music success is “meant to be”; it just happens when the stars align.*2 The unpredictability of payoffs makes the link between copyright protection and incentives to create indirect at best.
Composer Raney Shockne alluded to the arbitrariness of the incentives in his business. Shockne, a cousin of the Beach Boys’ Brian Wilson, hit the jackpot composing for the television series Anger Management. In addition to scoring the music, he whistled on the theme song, which earned him performance credit as a voice actor as well as composer royalties. With the show in syndication, he has earned more than $1 million for his efforts. “It is so arbitrary,” he said. “It is such a bizarre thing. I’ve been paid $500 for the same type of piece of music that fetches $5,000 or $50,000, for that matter. It is so all over the map. We do it for the love of it. We do it for the prestige of it….And we do it at every capacity for, ‘Oh my God I’m making money from playing music.’ ”21
If copyright protection does not provide much of an incentive for additional creative output, why have it? I think there are three important arguments in support of copyright protection beyond the incentive effects that have occupied most of the economics and legal debate: fairness, artistic credit, and creative control. First, copyright infringement is unfair. I have already argued that music is the best deal in the economy. Americans spend relatively little money on music yet enjoy countless hours of entertainment. Musicians are not rewarded fairly for their services compared with others in the economy. Copyright protection helps musicians earn a reward for their contributions, regardless of whether they would have done the work for free.
Credit is also an issue. Part of the reward for creativity is recognition for one’s efforts. Copyright establishes a legal basis for musical contributions. Desire for rec
ognition for creative contributions is not unique to musicians. Academics, for example, sometimes bring plagiarism charges when no money is at stake.
On a related issue, creators deserve, and currently have, a right to some degree of creative control over their works. A songwriter can deny a filmmaker the right to use his or her music in a movie if the songwriter objects to the context in which the music will be used. David Bowie, for example, refused to allow director Danny Boyle to use “Golden Years” in the outlandish toilet scene in the movie Trainspotting. And he later refused to license his music to the Academy Award–winning director for a planned Bowie biopic, which Boyle scuttled as a result.22
When General Motors approached the singer Brandi Carlile to use her song “The Story” in an ad campaign, she initially turned them down. But the singer later agreed once they offered to use the song in a campaign promoting hybrid vehicles and biofuels during the summer 2008 Olympics. The popular commercial helped launch her career. She later announced that her band would donate the money they earned from the ad campaign to environmental organizations supporting alternative energy sources.
Because of the historical development of copyright law, however, music creators do not have the right to control the use of their music on terrestrial radio or in cover songs. Those licenses are compulsory, meaning that a radio station can broadcast any song as long as it pays the relevant fee, and a cover band can record its version of a song as long as it pays the relevant fee. Hit singer-songwriter Aloe Blacc has passionately criticized the lack of creative control afforded to songwriters under the law:
A sculptor, let’s say, has the opportunity to choose where and when and how their art is consumed. If the sculptor makes their sculpture at Venice Beach, well, you have to be at Venice Beach to see it. And he could probably mask it so that it could only be seen from 5 p.m. to 8 p.m. if he wanted.
If I wanted to do that for my music, I couldn’t. There is no freedom for me to say, this song that I wrote about beautiful mornings can only be consumed at morning time from my website. I don’t have that right, because anyone in the world can cover it and play it anytime they want, and once it’s available, radio and other forms of radio (like Pandora) have the right to play it, and I don’t have the right to tell them not to….
It should be fair….A lot of artists, the majority of them, are one-hit wonders. Give them that one year to exploit it in full with no competition to diminish the value of their copyrights. Think about all the terrible covers of Beatles songs you’ve heard.23
Political events present another set of legal challenges for artistic control. Politicians can license music even if the composer objects because the license is compulsory, but the composer can sue to prevent usage on other grounds, such as by arguing that use of his or her music creates the impression of a false endorsement. These cases are not always easy, however. A lawyer representing Steven Tyler of Aerosmith, for example, sent two letters to Donald Trump’s campaign requesting that the candidate cease and desist from using the band’s song “Dream On” at campaign events, to no avail. The singer, a registered Republican, later objected when President Trump used his “Livin’ on the Edge” at a rally in Charleston, West Virginia.24 Tyler later tweeted: “I do not let anyone use my songs without my permission. My music is for causes, not for political campaigns or rallies. Protecting copyright and songwriters is what I’ve been fighting for even before this current administration took office.”25
Artistic control was also the issue that sparked Metallica’s landmark lawsuit against Napster in 2000. Having discovered that an unauthorized copy of an unmixed demo track of theirs was available for download on Napster, and being played on the radio as a result, the heavy metal band was rightly outraged. “Napster wasn’t about money,” drummer Lars Ulrich subsequently explained. “It wasn’t about commerce. It wasn’t about copyright. It was literally about choice. Whose choice is it to make your music available for free downloads? We were saying, ‘Hang on. It should be our choice.’ ”26
Protecting Mickey Mouse
A key parameter of copyright law is the duration of copyright protection. Set the term too long, and creativity is stifled. Set it too short, and creators do not receive their due. Over the last century, the duration of copyright protection has increased markedly in the United States and many other countries.
The 1998 Copyright Term Extension Act—also known as the Sonny Bono Act, after the then-congressman and former member of Sonny and Cher—extended copyright protection for new works from the life of the author plus fifty years to the life of the author plus seventy years. A distinguished group of economists, including George Akerlof, Kenneth Arrow, and Milton Friedman, wrote an amicus brief to the Supreme Court arguing that this twenty-year extension, coming long after the death of an author or composer, would have virtually no impact on the economic incentive for creative output. “Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1 percent,” the economists wrote.27 They further warned that extending protection raises costs for consumers and reduces “the set of building-block materials freely available for new works [and therefore] raises the cost of producing new works and reduces the number created.”
Another, even more economically questionable feature of the 1998 act is that it extended the copyright term for works created after 1923 that were still under copyright protection. This feature led the law to be derisively nicknamed “the Mickey Mouse Protection Act” because it delayed Mickey Mouse’s entry into the public domain until 2024. Winnie the Pooh’s copyright was extended as well. As the team of economists wrote, “Term extension in existing works provides no additional incentive to create new works and imposes several kinds of additional costs.” The costs are higher prices for books, cartoons, T-shirts, costumes, and other products related to Mickey Mouse or Winnie the Pooh. Not surprisingly, owners of valuable copyrights have lobbied strongly for term extensions around the world, an activity that economists refer to as “rent-seeking.” Rent-seeking is an attempt to extract greater compensation without creating additional value for society. In other words, rent-seekers expend resources to obtain a larger slice of the pie, while doing nothing to increase the size of the pie.
There is little evidence that copyright term extensions produce beneficial effects. Even Giorcelli and Moser, the economists who found that enforcing copyright protection increased the quality and output of Italian operas, concluded that increases in the duration of copyright protection did not improve output.
A resourceful study by Megan MacGarvie of Boston University and co-authors approached copyright duration from the opposite perspective: they examined what happened when recording copyrights for artists who were popular in the United Kingdom in the 1960s expired. Analyzing data on 11,639 tracks recorded by 135 artists, they found that re-releases increased threefold once copyrights expired. Interestingly, after a song’s copyright had expired, the artist who originated that song was less likely to perform it at live events, suggesting that artists kept these songs on their set lists to increase record sales or downloads while they were covered by copyright protection. “These results suggest that copyright term extensions may lead to fewer re-releases,” they concluded.28
Not only are copyright terms that long exceed the life of songwriters hard to justify on incentive grounds, they are also hard to justify on grounds of artistic control or where apportioning credit are concerned. One also could argue that it is unfair to consumers and other creators to extend the term of copyright for owners of works that were created long ago under copyright terms that were established at the time.
Dan Wilson: A Series of Magnetic Yeses
Dan Wilson has achieved just about everything one can aspire to in the music business, including recording, touring, songwriting, and producing. He was the frontman of Semisonic, known for their hit “Closing Time.”
He has shared songwriting credit with Carole King, Taylor Swift, Halsey, John Legend, and more than one hundred other collaborators. He won a Grammy for Album of the Year for contributions to Adele’s 21 and for Song of the Year with the Dixie Chicks for “Not Ready to Make Nice.” I interviewed Wilson about the arc of his career, which brought him from Minneapolis to Harvard and the Grammys, on June 29, 2018.
When did you know you wanted to be a professional musician?
Around age ten or eleven I would walk home from school and concoct a way to sing that I had decided was going to be my trademark when I was a professional musician. I took piano lessons from age eight until eighteen from a smart lady who focused on theory, the circle of fifths and the structure of harmony, which is not common for a piano teacher for beginners. I studied classical and jazz music in my late teens, and learned composition from studying jazz. I tried to be in bands all through high school. I played in bands that would play at backyard parties and basement parties. When I went to Harvard I basically started in earnest and was always in a band playing somewhere in Boston.
Then I quit music for three or four years to try to be a painter. But I continued writing songs and eventually my brother asked me to join his band, Trip Shakespeare. And I learned all the second guitar parts to their songs. I hadn’t really been much of a guitarist until then. We needed to make enough money to live at that time, but we lived super cheaply in dangerous parts of town.
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