Art Has Value, and Artists Should Get Paid

You may have heard about a “landmark” copyright violation case that was decided in Minnesota last week. Out of thousands of potential cases brought against people by the Recording Industry Association of America (RIAA) for illegally sharing music over the internet, only one has gone to trial. Jammie Thomas, a single mother from Brainerd, MN, had the chance to settle for less than $5,000 in 2005, but figured the RIAA would never follow through with the suit.

She was wrong. And now, she has been found guilty of sharing files and is subject to a $222,000 judgement. Also, she is subject to hard labor for sharing a Richard Marx song, because international law requires that people make Richard Marx less available, not more. Poor Jammie Thomas. I admire her moxie in not wanting to get pushed around, but when your legal defense is that somebody hijacked your computer for the sole purpose of sharing 9 songs, but you can’t find anybody to testify that such a thing actually happened or was possible, it’s likely you should have settled when you had the chance.  Or, say, retained a better lawyer.

Look, I really dislike the RIAA. I think record companies have been sticking it to music artists and the music-buying public for a long, long time. But copyright law is important, and the fact that many, many people violate that law doesn’t mean that the law should simply be ignored. We have to figure out a way to make sure artists get fair value for their art. Note, that doesn’t necessarily have a damned thing to do with whether record labels get anything.

Which brings up Radiohead. As you may have heard, Radiohead is no longer bound to their contract with EMI, and as a result are releasing their new In Rainbows album direct to fans, who can order either a physical box set or just the download. And, you can choose to pay whatever you want (minimum of about $1). I decided it was worth about $9 to me to get the download, and all of that money will go direct to Radiohead, as opposed to a record label who “promotes” the band and handles distribution. For a great summary of Radiohead’s plan, as well as a nice pie-chart showing how bogus the old RIAA model was, go here.

I have to say I’ve come around quite a bit on ripping music without paying for it. I will still rip a record from someone, usually in exchange for things they’ve ripped from me, but now that’s a small part of my music consumption, and most of what I listen to I pay for, either through eMusic, iTunes, direct from artists, or (wow!) even old-fashioned record stores. I think ripping is always going to be around, and to a certain extent I think that’s OK. That’s how word-of-mouth has built since the days of the cassette tape. But I don’t think it’s justifiable to only take from artists without also paying them (at least some of them), and I think that’s something that our generation and the younger one is going to have to come to grips with. Just because something can be had for free doesn’t mean it should be.

Not every band can do what Radiohead is doing. Most can’t, really, because Radiohead is so big and has such a loyal (and wired) fanbase. But the model they are using is important. If people had the choice of paying $5 direct to the band, knowing the band is getting 100% of that $5, instead of 15% of the price of a $15 CD, I bet a lot of people who are ripping music today would be more willing to pay the money.

Of course, I’m sure there are a lot of douchebags out there who are going to the Radiohead In Rainbows website and paying their minimum $1, or even worse, will still insist on ripping it from someplace for free. If you plan to be one of those people, think for a moment about what art is, and what art ought to be worth to you.

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27 Responses to Art Has Value, and Artists Should Get Paid

  1. Katy says:

    $222,000 does seem rather excessive, even with the Richard Marx punitive damages. It does not seem likely that anyone lost that much money because this woman shared some songs on Kazaa. Anyone know how they calculated that? That said, I agree that sites like that are stealing and there should be consequences. While it’s true that many well-known musicians are very rich, many are not and this is the equivalent of breaking into some artist’s loft and stealing thier oil paints. Way to kick someone who is trying to scrape together a living by pursuing their artistic dreams and making our society richer as a whole.

    And, unlike the moronic individual they interviewed on MPR this morning who only gave her first name and said that artists should choose to be part of a “community” and not force people to pay for their art, I never used those sites. And that was only tangentially related to how slow and annoying they were to use.

  2. It’s a fair bet that whoever it was that said artists should simply be artists and not get paid for their art is a person who will never, ever create anything anybody will want to pay for.

    I don’t know this for certain, but I have the impression that many people I know to be otherwise upstanding people regularly rip music for free, and that free music (or other content) far outweighs the content they are paying for.

    Now, maybe my perception is wrong. Maybe people are taking the approach I take, which is to pay for most and rip the occasional record. But clearly many, many people are filling their libraries with free music today. I’d be curious to know whether that causes any dissonance for them on any level.

  3. steim says:

    I used to use Kazaa/Napster to download a fair amount of music, but it was really cumbersome and quite often whatever file I was downloading was either corrupted, cut off in the middle, or had a virus. Since the onset of iTunes, I’ve quit doing that and I just generally go the iTunes route. I still copy some from friends, but that’s pretty hit or miss.

    Even though I know it’s a completely indefensible position from a logical standpoint, I never really felt bad about ripping music from a major label artist. However, if it was a band on an independent label, I’d usually follow up the ripping by actually buying or legally downloading the work.

    Again, there’s really no way to defend it, but that’s what I did and I never felt bad about it. In fact, whenever I saw that tool Lars Ulrich bitching about free downloading, it sort of made me feel good to get the work of an artist on a major label for free.

  4. brent says:

    the RIAA is full of shit. these laws don’t protect the artists; they protect the business interests of the distributor. the record companies need the legal protection because the service they provide (distribution) actually adds very little value to the product. it use to make sense that only 15% goes to the artist, because there was so much more involved in creating pathways to distribute the music. now artists can distribute their music at little cost.

    it’s a complicated issue, because the artists definitely deserve compensation for their art. however, the current mechanism for gathering that compensation captures surplus money from the consumer of the music and distributes it to business entities that are no longer necessary for the creation and distribution of the product.

  5. It’s complicated because the technology has evolved so quickly, and record companies aren’t exactly noted for their nimble reaction times to trends in the industry that they don’t drive themselves.

    But I think your statement is only right, Brent, when you consider the traditonal brick and mortar record store. iTunes, eMusic and other services remove much of the revenue that used to go to the record companies, although I still believe that revenue isn’t justly distributed to the artists. Radiohead’s model seems to be the only “pure” one where a consumer is paying the artist for the art, primarily.

    Frankly, though, I think most people are where Steim is, and yes, where I’m at some days when I rip a record from or for others: Free stuff is good, and we can always look at the 85% of the revenue we are keeping from “the man”, and conveniently forget about the 15% we are taking from the artist. I just don’t think our ethics have quite caught up to our abilities, but Radiohead’s proposition removes so many of the external forces we use to justify these actions.

    And the freewill pricing is a genius stroke, if you ask me. Put the focus on the value people put on the art. Make them think about it. That will be some very interesting data to crunch, to see what people pay, how that differs by country, etc.

  6. I’ve never been completely sure if Lars Ulrich is a tool, or if he’s merely willing to appear to be a tool for the right reasons. He’s right, on principle, that we ought not be able to steal music, but he’s the wrong spokesperson for the movement, being he’s a millionaire rock star for a band that sold out. Yeah, I said it. They sold out, starting with the Black Album.

    But who’s going to pay attention to some indie band crying about losing revenue? If people were sympathetic to the plight of the indie musicians, a lot of our favorite bands would have been the stars. It had to be someone famous to get the visibility for the cause. All his bitching got old, but I still don’t see any way around the fact that his core position is correct, that music should be paid for and artists need to be compensated.

  7. steim says:

    Agreed on Lars. But I just hate agreeing with such a pompous asshole.

    Wilco streamed all of Yankee Hotel Foxtrot several months before it was released. I believe that’s their best selling album to date, so its interesting to me that a lot of folks were introduced to it via a free web stream. Especially since there’s readily available free software that allows you to capture streaming audio and save it.

    There’s also an interesting conversation in the Wilco documentary that revolves around the amount of money bands make when they tour. Wilco’s manager says flat-out that the band could pay for the record just by playing shows. Whether “paying for the record” includes distribution and promotion wasn’t addressed.

  8. David says:

    Did you pay 5 U.S. dollars or 5 British pounds (about $10)?

    According to the pie chart, for every $17 CD, the band gets little over $2, right? So, my thinking is, $1 for the credit card handling fee, $1 for production costs, and $3 for the artists ($5 total). That’s a 50% increase in earnings! Don’t spend it all in one place, guys…

  9. Jeff H says:

    There is a big distinction between being a musician and being a nationally advertised musical product. Most musicians aren’t significantly hurt by file sharing, because most musicians don’t make enough money from album sales (or any other aspect of their music) for it to matter. (A lot of non-famous musicians put their own stuff out there for free, just to be heard.) Major record labels have created a process in which a select few artists are packaged and promoted, and willing participants give up varying levels of self-determination to ride this process to riches. It’s this, primarily, that piracy is subverting, and any artist who makes this choice today expecting that s/he will somehow be immune to piracy is like someone who starts smoking and expecting to stay healthy.

    Generally, the artists most affected by file sharing are the ones at the top, because they have the most to lose. That’s too bad for them, but the system they’ve signed up for is treating them fairly well, nonetheless. Artists have a right to try to profit from their work, but if you’re a top national act, most of your paycheck has nothing to do with the level of your artistry. You’re being compensated for your role in the fame industry. Losing hypothetical sales to file sharing comes with the territory, along with the pushy photographers that follow you to the drugstore. You want to avoid this? Don’t sign up.

    I’m not defending piracy, and if you’re going to do it, you have to be ready to face the music, so to speak. On the other hand, give me a break. Piracy is not threatening the existence of the music industry. And if the whole thing did collapse, think of the horrific aftermath: Fewer acts who become household names based on how easily packaged they are. Fewer tedious stadium concert tours sponsored by credit cards and hair dye. Maybe even more vibrant local music scenes. God, that’d sure suck.

  10. Dave, I spent about $9 USD on the download.

    Jeff, clearly you ARRRRRGH defending piracy, especially against larger established acts. They are an easy target in this discussion; who’s crying now for Journey’s lost revenue, other than Journey and their record label?.

    But I don’t understand your internal logic. Sure, most musicians and bands never cash in on a huge contract, but that doesn’t mean they are giving their music away for free, either. I know when I was on Kazaa I had no trouble at all finding Broken Social Scene, or Sleater-Kinney, or any number of other “small” bands that presumably aren’t interested in giving their stuff away as evidenced by the fact that their CDs are for sale in record stores. And a great number of the files that are out there aren’t from RIAA members; they are represented by smaller record labels who don’t fit into the same category of large record companies.

    Yes, an artist at the top has the most $ to lose, but an artist at the bottom is still losing revenue when people make the choice to acquire those songs for free vs. paying for them via download or at a brick and mortar record store. It’s like saying I have less to lose from a 60% tax rate than someone making a million dollars. Yes, I lose less money, but I still lose valuable income that I otherwise wouldn’t lose if people weren’t stealing my art.

  11. Stanton says:

    From a Bob Dylan interview in 2006: ” I remember when that Napster guy came up across, it was like, ‘Everybody’s gettin’ music for free.’ I was like, ‘Well, why not? It ain’t worth nothing anyway.’ “.

  12. Surely, Stanton, that anecdote is intended to show what a flippant crotch Dylan can be rather than a definitive statement about the rightness of not paying for artistic content. I’m sure Dylan does feel (and in some ways rightfully so) that most of today’s music “ain’t worth nothing”.

    One wonders if he feels the same way about his own music, though, past or present. Probably not, given that his stuff is available at all the usually suspected locations, on Colombia Records.

  13. David says:

    I don’t know, Doug. I know CD sales are down, but would all those people who are downloading music for free be going to Virgin and dropping $18 on the CD? I doubt it. I’m sure there is a slice that would go the mall and purchase it, but my guess is that a lot more people would simply go without or seek out other free access to music.

    It think e-media sites like MySpace and E-music and Itunes have a really positive effect on popular music. It allows more people to access a wider range of artists and it’s much easier for artists to gain a national or international following. CD’s are doomed to become obsolete even without illegal filesharing. It’s just so easy to purchase and download music. In fact, I’m a little scared that my kids are going to get on my itunes acount some day and I’m gonna find I purchased a couple hundred songs at $0.99 each.

  14. Whoa, whoa. Let me be clear: I’m saying people should absolutely take advantage of solutions like iTunes, eMusic, etc. Or buy direct from artists. I’m saying that those solutions, or what Radiohead is doing (or smaller record labels) are the proper way to go, because those get more of the money directly to the artist, or to a smaller label that does actually distribute, promote, etc., without having 30% of the money go to the overhead of the huge conglomorates that own the RIAA labels.

    I am NOT saying “stop downloading for free and go pay full $ for the CD”. I’m saying that ripping free tunes ignores the way the music distribution has evolved, and a lot of the old excuses for why it was OK to rip off record labels (and those rich musicians) doesn’t apply anymore.

    Sorry, guys, I’m just hearing a lot of rationalization about why free ripping is OK, based on conditions that applied five years ago but very much less so today. The arguments against free ripping listed here are basically that 1) Big record companies suck, 2) Big artists don’t need the money. How is that in any way responsive to when a small artist on a small label gets ripped?

  15. Jeff H says:

    You make some good points, Doug. I concede that there are a lot of bands somewhere on the success spectrum between Wilco and that unwashed fellow strumming away inside your local coffee shop. For sure, I have more sympathy for indie labels and artists. However, the rules are the same, even for smaller bands. Selling records is a commercial venture. You sign up with a label to increase demand for your music. The more demand you manage to create, the more your tracks will be pirated. Stop complaining.

    I’m really not defending piracy, any more than I’m defending the behavior of paparazzi photographers. Piracy is clearly against the law, and it does affect the income of bands you presumably like. And I can’t think of a convincing ethical argument that supports copying music without paying for it.

    As I said, I think artists have a right to try to profit from their work, but don’t know that “artists should be paid” works as a categorical imperative. There are huge swaths of “art” in its larger sense that have none of the commercial potential of popular music. Even within that category, there are artists who will never be paid a dime, either because they aren’t good enough or because they are playing something that doesn’t fit the current tastes. Should these people be paid, too? If so, by whom? Art (with a capital “A”) does have value, but not all art has commercial value. If you’re a band measuring the value of your art in dollars, you should either accept the realities of the marketplace or pick up your amp and go home.

  16. pipelineblog says:

    So…illegal copyright violations and theft are “marketplace realities”, and therefore the only recourse for those shorted financially is to get out of the game altogether, because they should have known everybody was a thief if presented the opportunity be one when virtually guaranteed they wouldn’t be caught?

    Burglary and auto theft are also “marketplace realities”, but I don’t think that means the solution is to tell people who had their car stolen that they shouldn’t have bought a car in the first place.

  17. Jeff H says:

    No. But when you buy a car, that’s a risk you take, and you get insurance, and you park it in the safest place you can. You make a determination that in the long run, despite the risks, you’ll be better off buying the car.

    The marketplace reality is that technology has outpaced the music industry, and they have no idea what to do about it. The distribution channels have changed, and as a result it’s easy to steal. Producing and trying to sell a record today means accepting this, at least until someone comes up with a copy-protection scheme that can’t be defeated with a magic marker. (And when that happens, there will be much whining and rationalization from those who believe that “music wants to be free,” but I won’t be one of those.)

    Doug, I’m in agreement with each of what I consider to be your main points, including 1. Jammie Thomas, presuming she was actually guilty as charged, deserves to pay some kind of penalty; 2. The fact that the RIAA is evil doesn’t mean they don’t have legal rights; 3. It’s unethical to pirate music; and 4. Doing so can hurt the bands you like by depriving them of income, so look into ways of supporting them more directly.

    My reaction probably comes from a general sense that the issue has been overblown, that $220,000 would feel like a fairer penalty for someone who actually sold bootleg CDs than for someone who didn’t seek to profit from sharing tunes, that Jammie Thomas was a target of convenience, and that I still have a mental picture of Ben Affleck beseeching me not to pirate movies or he’ll have to stop making them.

  18. pipelineblog says:

    I have the same reaction to the verdict. Jammie Thomas should pay some sort of penalty, but it ain’t $222,000. Even the $4500 or whatever she could have settled for is extreme in my book. There is extreme disproportionality in the sentence vs. the harm, and I would expect that to be a central part of her appeal, which was announced today.

    Yes, it’s very much an industry in flux. I applaud Radiohead for trying a new model, which they are probably in a somewhat unique position to pursue (huge band, beholden to no record deal, likely already wealthy enough to take the chance). And I love iTunes and eMusic, though I worry about the demise of the beloved indie record store. (Which reminds me, my 50 monthly downloads from eMusic just renewed today. Woo Hoo!)

    What I’m railing against, primarily, is the idea that any content that can be digitized should necessarily be free because it can be had for free. I realize nobody here is making such a direct claim.

  19. John Rice says:

    I agree with the judgement – may not be the amount of fine but with the basic judgement. I know a lot of people who share some music videos which are copyright free; same for the copyright free images as well. If there are lots of resources for copyright free vidoes/photos/articles, why should not more and more people use that?

  20. Jen says:

    I’m still buying my music. Still seem to need that tangible thing called a cd, even though it ends up on my ipod. Just ordered two new cds last night-Joe Henry’s newest, and Chuck Prophet’s newest. If I rip something, it’s generally for a friend, and my rule is if you like it, go buy it. I don’t mind ripping as long as it’s to get the music out there to someone who wouldn’t have heard it otherwise. But also explains why we have to have a “music budget” in our house.

    Doug, Chuck Prophet is playing at the Turf Club Oct. 26th-he’s always a good show. Even good enough to get a sitter and drive in from Minnetrista…

  21. kelly says:

    Copying still comes in the form of referrals from friends; and I still buy CD’s so I can record them digitally in a ‘lossless’ format for audio quality purposes. So I lose much of the 2 primary benefits from digital revolution, cost and convenience.

    I think to Brent and a few other’s points above; the industry provides an important awareness mechanism that drives demand for new music (much of it bad); and there is no doubt their distribution model is now rapidly deteriorating….Tower records went out of business!!

    The issue to me is that the industry is losing on two fronts; both the ability to create artists awareness because the industry cant pump clear channel for as much sales growth as they used too, and they have a harder time selling copies. But the part you hear about is only that they can no longer sell copies. The industry portrays the thefts in the same light as they do their declining market share of people’s active listening habits. They dont know what to do other than fight like an immature industry for portectionism. Itunes and emusic are saving their ass. Without them, the industry’s new moves would amount to nothing; and they would be shuttering their doors.

    I personally say good riddance; even if it means that recording astists lose their careers and or eat macaroni for another 5 years; overall it will be good for all future artists. From an “artists” perspective the replacement model is bound to be more fair given that distribution and consumer awareness costs will have dropped to relative zero cost. Allowing the labels to cling to their revenue streams only delays the replacement mechanisms of the market that would hasten new opportunities for the artistic community.

  22. Scotch says:

    It’s interesting that this conversation is limited to music. Have you stopped borrowing other people’s books? Or reading someone else’s newspaper or magazines that they’ve paid for? While it’s not making a ‘copy’, it’s getting all the enjoyment while the artist/writer gets nothing else.

  23. That’s a good question, Scott, but copyright law seems clear in that regard, that it’s also illegal to copy books, magazines, newspapers, etc. Borrowing or reading other people’s materials isn’t a problem, because it’s still the original article that was paid for, purchased, etc.

    But I suspect if you went to a publishing house and showed them your photocopied collection of their books, and advised them you were distributing those copies to anybody who wanted one, you’d have a date in court ASAFP.

  24. notchris says:

    i am moving. in purging from my house i found a box of cassette tapes from the olden days that I had taped from other people’s music collections. all that has changed is the medium which has increased the practice. but, the practice was once legally protected and the industry moved to change that standard so that their lazy asses wouldn’t have to change their business model.

    i got the first arcade fire from a friend. I liked it. I bought the next. I paid to see Ben Harper live, like him, d/l’ed his music and have bought every album since.

    i use the ‘net to help identify what I like and I have zero problem (and lots more resources) to buy what i like.

    i hate record companies.

  25. david says:

    For the record, you can legally copy and distribute a “chapter” of a book, which I have done several times for the students in my class. Reproducing text books might be a lucrative business…

  26. notchris says:

    shame this died as as it appears the record industry may have too. Madonna, Oasis and a few other once big names are all going direct to consumer and leaving their label behind.

  27. david says:

    I know this discussion is stale, but I just have to throw this in…

    There’s an article (front-page!) in the most recent Case Observer about illegal file sharing on campus and lawsuits by the RIAA. Apparently, eleven students have been contacted by the RIAA and given offers to settle or be sued. Two have settled; one for $7K and one for $3.5K. I guess depending on the type of protocol (e.g., BitTorrent), it’s pretty easy for the RIAA to track the use of files. The RIAA sent a list of offenders to the Case IT dept., who forwarded it to Student Affairs, who then passed the letters along to the alleged offenders.

    An undergrad here told me that file sharing is pervasive and not just limited to music. Another undergrad told me that when she first came to Case, she thought the servers packed to the gills with music were a “service” provided by the University. Another undergrad said he knew of people who went to IT to get technical assistance because they were having difficulties downloading music files.

    Astonishing…

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