Maryland Fiduciary Access to Digital Assets Act (“MFADAA”)In the Notes From the Chair column in this issue of the Newsletter, Section Chair Charles Abell reports on legislation passed by the Maryland General Assembly during its session just concluded. I call your attention to MFADAA, which will finally provide clarity about control of a person’s digital assets if he or she is disabled or deceased. More detailed information on MFADAA was provided in the Fall 2015 Newsletter in an article by Anne Coventry entitled “Update on Fiduciary Access to Digital Assets.” A future issue of the Newsletter will discuss the final legislation (unless vetoed by the Governor) in greater detail. Please read the provisions of the bill (HB507/SB239) and consider how they should be incorporated in your estate planning documents.
Dance to the Music - Part IIAs I explored in the Fall 2015 Newsletter, technological evolution in the way we listen to music has given us (as consumers) enormous choice and considerable flexibility in the way we listen to and enjoy a wide spectrum of music through a variety of devices. (While this discussion is focused on music, consider how technology has done the same for other forms of intellectual property --- books, newspapers, magazines, journals, photographs, encyclopedias, etc. --- work created by others that we can access much more easily than ever before.)
This article presents some thoughts about how this technological advancement for consumers has affected songwriters and musicians (the creators of the intellectual property).
When the music is free or nearly free and easy to access, it is easy to forget that those who created the music deserve to be compensated for that creativity and effort. There are still costs for the consumers – for example, paying for individual songs or albums on iTunes. As compact disc sales fall and streaming music revenues rise, however, many artists are not seeing equitable compensation. New, emerging artists and artists who are wonderfully creative, but not commercial superstars, lack strong bargaining power to demand better compensation. These artists often need the exposure that these streaming services provide, but see little return for the use of their music.
Let’s look at each end of this new paradigm. On one side, listeners (subscribers, consumers, or customers) may be paying for premium services through Spotify and Pandora. For example, I pay a monthly fee to Spotify. Pandora calls itself Internet Radio (with commercial spots). While not strictly “free”, the low monthly fee or a few commercial ads make these services very attractive for the listener, with access to large libraries of music. (Through Apple’s iTunes one can download for free and listen to a huge selection of podcasts from broadcast radio such as NPR All Songs Considered and Tiny Desk Concert, The New Yorker’s Fiction podcast, This American Life, The Writer’s Almanac, and On Being.)
On the other side of this equation, are the artists who create music getting fair compensation for their efforts when that music is now widely distributed digitally for “free” or for very low user fees? Is streaming digital music the answer to the problem discussed in Part 1 of this piece, i.e. buying your favorite music over and over again in different formats as technology changes?
Perhaps not, or not yet. For a consumer, the answer may be closer to “yes”. Digital music (or books, or movies, etc.) seems to offer great convenience, portability, and some promise of being around longer. Digital technology may change, but if digital technology changes, the consumer listening to a digital stream online may just need to update the app, not replace the device through which they listen. Streaming digital music is likely to be around for a while.
Consumers may be concerned about the sound quality of digital music. Since music was digitized on compact discs, complaints about quality persist. Some artists have gone back to pressing high quality vinyl records for fans who want better sound quality. Admittedly, sound quality of streaming music can be limited by the device that you use to play the music. The speakers on your iPhone are never going to provide sound quality equivalent to a good sound system. A good pair of headphones might be a wise investment.
Artists such as The Beatles, The Rolling Stones, Led Zeppelin, etc. may be able to strike lucrative deals for their music and control how it is presented. These artists can negotiate the deals they want because there is high demand for their music. These artists also can decide which providers will get their music.
When the artist Prince removed his music from Spotify and Rdio, but left it on other services like Google Play, Tidal and Deezer, it was noted online that:
“Besides his impressive string of hit songs, Prince has always expressed his strong advocacy for artist’s rights, whether through his music, words, or actions.”The sad news of Prince’s death has brought attention back to this advocacy. No doubt many, many around the world will remember Prince through his music. A quick trip to Spotify, however, still finds the statement: “Prince’s publisher has asked all streaming services to remove his catalog. We have cooperated with the request, and hope to bring his music back as soon as possible.” To find Prince’s music you have to go to Tidal. Except for a 30-day free trial, Tidal is a paid subscription-only service promising high quality sound.
Another report on the difficulty that fans were having finding Prince’s music online went further to explain that Prince’s interest in protecting his rights to his music led him a few years ago to the extraordinary step of buying back the rights to his own music from his publisher Warner Brothers. After this purchase, he alone controlled its distribution. This highlights another major problem for artists, namely, that as they become successful and get recording contracts, they actually bargain away rights to their own music.
There are very, very good local artists (some of my favorites: Arty Hill and The Long Gone Daddys; Caleb Stine; Victoria Vox; Ellen Cherry; UltraFaux) who have been recognized and actually play outside the area, but have a hard time making any money through online services. Often, they only post selected material online to give newcomers a sampling of what they do. Economically, they cannot afford to put all their music out there because they make next to nothing doing so. They might not even be able to afford “pie for breakfast.”
Even established artists must go on tour to make significant money. Bob Dylan’s “never-ending tour” has had him on the road almost continuously for years. Acts like The Rolling Stones seem to return to the road every few years, as their output of new music slows and the new recordings draw less demand. Fans want to hear the hits and are willing to pay.
Established artists also are re-packaging and selling their old music. As I revised this article recently, Bruce Springsteen and the E Street Band were preparing to perform in the Baltimore Arena. The current tour commemorates the 40th anniversary of the release of The River, a double album played in its entirety at each show. One source told me of a conversation with the manager of the Arena, who said Bruce gets 95% of the gate (the list price of the tickets sold). Springsteen shows still sell out (and make money for scalpers too!).
Concurrent with the tour, Bruce released an extended edition of The River, titled “The Tie That Binds: The River Collection,” containing 52 songs and 3 hours and 17 minutes of music. (It takes Bruce and the E Street Band about two hours plus to play the original album live.) The Tie That Binds spreads out over four compact disks and contains previously released alternate singles and previously unreleased outtakes from the original recording sessions. Even though this recording is available on streaming services like Spotify, this is another way Bruce makes money --- selling fans enhanced or augmented versions of his past.
Bruce is not alone or the first to do this. You may be old enough to remember when artists had to battle with “bootleg” recordings of their work, unauthorized copies from recording sessions or concert performances. The Grateful Dead actually encourage their fans to swap recordings of live concerts and maintained a deep archive of their own that the band has released from time to time.
For years, bootlegs of unreleased recordings of Bob Dylan and The Band, known as the “Basement Tapes,” circulated among fans, to the point where they became legendary – a “holy grail” of bootlegs. Eventually, Dylan turned the concept around and has been releasing his own “Bootleg” collections of unreleased alternate versions his recorded catalog of songs as well as material never released before.
I listened recently to a compact disc of Dylan’s “The Cutting Edge 1965-1966: Bootleg Series Vol. 12” on my commute to and from work. A couple of years ago, Dylan released an elaborate box set of the entire “Basement Tapes,” complete with a thick booklet detailing the recordings. (Dylan has always maintained his own deep archive of written and recorded material. It was announced recently that he is transferring this massive archive to the George Kaiser Family Foundation and the University of Tulsa for a reported $15 to $20 million. It will reside there in the company of “a rare copy of the Declaration of Independence, a cache of Native American art and the papers of Woody Guthrie.”)
Other established artists are starting to react as Prince did. Some, like Taylor Swift, have enough popularity to follow Prince’s example and hold their music off Spotify and fight for a better deal. Some of these artists want not only a fair pay scale, but want to restore sound quality to digital music, a primary goal of Tidal, which was started by artists.
Finally, the question comes back to who owns the music? If you use Spotify, Pandora, Tidal, etc., you are renting the music.
You are subscribed to an enormous musical candy store, you can search for all kinds of goodies, but if you stop paying, the door is shut and there is no more music. Your subscription fee replaces the commercials on radio and digital streams that use them.
Steve Jobs is often mentioned as having ushered in the new era in the digital distribution via the Internet music when he launched iTunes. 1/ Amazon followed as part of an even larger new era in the distribution of music and other intellectual property. Jobs also is said to have held an “ownership” concept of the music:
Steve Jobs’ company launched iTunes as a product to be run on its computer. Later, with the launch of the iPod, more features would be added, with a bigger catalogue and more products. According to Martínez Sanmartí, “iTunes created a format that was new and old at the same time: new because it offered the possibility of buying individual songs at a dollar each and eliminated the traditional physical medium, the CD or vinyl record”. But also old because “it kept a price similar to the CDs and also perpetuated the idea of buying and owning music files, in other words, music was still something to be possessed and stored, even if it was now on the computer”.What has happened since clearly has been an abandonment of the “ownership” model. Streaming services with monthly subscriptions are the norm. You still can buy music files, but that is not the mainstream market. Even before iTunes and Spotify and Pandora, music lovers with record and CD collections used their computers to copy the music into digital format and download it onto devices like iPods. Having purchased that music once (or borrowed it from a friendly source), we may have felt entitled to duplicate it digitally. Legally, that is not correct. Distribution of those digital “bootleg” copies is another step in the wrong direction. Until the iPod fails or is pried from a cold dead hand, however, that music will remain and will be heard again.
In Part I, there was a list of devices used to play recorded music. The physical form in which the music came dictated a corresponding need for a device to play the music. If you still have records, you still need a phonograph. If you still have cassette tapes, you still need a cassette player.
Digital music frees us from that paradigm. We can play digital music through many different devices in many different settings, but that freedom may have costs, real and hidden. We may think of it as “our” music, but it really is intellectual property created by someone else – the artist. We may think that we are paying for the music, but really we may only be paying for access to the music. Think about all this the next time “your” play music.
1 iTunes, a key player in the paradigm shift in music consumption, 14/01/2016 Germán Sierra; http://www.uoc.edu/portal/en/uoc-news/actualitat/2016/215-itunes-key-shift.html