Category: Art

A Lot of Noise on Spotify

When Napster appeared in 1999, it was a bit of a perfect storm situation for fans to rationalize music piracy.  Granted, people would have used the file-sharing app no matter what, but the music industry had indeed become demonstrably bloated; and one chronic complaint among consumers was that we were required to buy a $15 CD just to get two good tracks with eight filler songs.  Whether this criticism was valid or not is hard for me to say, since I mostly abandoned contemporary music in the 90s. But I have certainly encountered this allegation, even during the last five years, as part of a recurring narrative that piracy “taught the industry a lesson” about what consumers want, which is how we ended up with iTunes, Pandora, and Spotify.

But as a Spotify user, you might have had the experience of dealing with a new variation on this “filler tracks” theme.  Perhaps, you’ve searched for a song, got a result, hit play without paying much attention, and then asked, What the hell am I listening to?  I had no idea there was a pan-flute version of “Holiday in Cambodia”?

Okay, maybe you won’t find anything quite that absurd, but a recent flurry of music news reporting says that not only is Spotify full to bustin’ with mediocre covers of popular songs, but the streaming company itself has been accused of commissioning volumes of filler music in an effort to drive down the licensing fees it has to pay to major and independent artists.  In particular, it is alleged that those genre playlists with names like “Focus” or “Ambient Chill” are not only filled with tracks by artists you never heard of, but possibly by artists who don’t exist other than as fronts for music that is owned by Spotify.

Music Business Worldwide reported in August 2016 that Spotify was commissioning producers to create tracks with “specific guidelines” and then crediting these works to non-existent artists.  This accusation remains an allegation, which Spotify has flatly denied, but to which MBW responded just a few days ago, essentially asking, Okay, then who are all these “artists.”  Reporting, Tim Ingham poses the following reasonable questions:

“Put it this way: if an act on Spotify has millions of streams from just a couple of tracks, but no other internet presence whatsoever, wouldn’t that strike you as odd? No Facebook, no Twitter, no ReverbNation page, no homepage, no SoundCloud? What about if they had no manager/lawyer and no industry relationships? And seemingly, according to their Spotify credits, personally owned all of their own rights? What if their music then only appeared on Spotify – and was nowhere to be seen on YouTube, Apple Music etc.? That would be weird, right? That would make no sense. In total, tracks by the 50 ‘fake’ artists we’ve [identified] amount to over 520m Spotify streams. By traditional rights-holder payout metrics, that’s worth more than $3m in royalty payouts.”

Whether or not Spotify itself has been commissioning content that is misleading customers, one concern with stuffing these playlists with covers is what happens when we get to other genres?  How soon before users click on the “Jazz” playlist to hear the sound stylings of John CoalTrain? What does that say about “music discovery” in the digital age?

Songs are covered by compulsory licenses. Anyone who pays the license fee to the songwriters/publishers may cover any of these songs without permission, and this provides opportunity for both good and not-so-good music makers to capitalize on the fact that listeners will naturally use a service like Spotify to search for titles or keywords.  As Adam K. Raymond explains in his in-depth discussion on Vulture, “Bob Seger, the bearded grandfather of mainstream radio rock, was not on Spotify until this month. But Bob Segar has been there for years, and the misspelled version of the Detroit rocker racked up 1.2 million streams on a cover of “Turn the Page” in the real Seger’s absence.”

Indeed. I found a Bob Segar Playlist with a number of Bob Seger hits covered by an artist called Sam Morrison and Turn the Page.  These are not cover songs in the tradition of a distinctive artist performing his/her own version (e.g. Whitney Houston does Dolly Parton’s “I Will Always Love You”) but are instead in the style of a “tribute” band.  Sam Morrison’s impersonation of the real Seger is just good enough that any number of listeners might not notice right away—or ever—that they’re not listening to Bob Seger. And the misspelling of artist’s name is clearly meant to deceive.

Raymond goes into considerable detail on the various ways different parties game Spotify to earn revenue with the musical equivalent of clickbait—like releasing duplicate tracks with different titles, or producing “songs about everything” so that a search for one’s hometown, for instance, might turn up a song about it. Is it a song you want to listen to?  Well, to each his own.  Raymond observes …

“The big loser here is the listener. He’s increasingly having to dodge spammers and imposters to find his favorite artists, and then slogging through endless albums once he does. But maybe this isn’t such a bad thing. Listeners have long been the primary beneficiaries of free or dirt-cheap streaming services. Now, after years of artists alone coping with the devaluation of music, fans are feeling its effects too. It may not be ideal for anyone, but at least everyone is suffering together.”

One of the promises made by the internet industry to artists and consumers was the aforementioned opportunity for discovery; but I don’t think anyone meant the discovery of dreck that fans would have sift through to find the work of artists we already know or might want to know.  Nobody appears to be doing anything illegal in gaming the system (unless Spotify is engaged in any type of fraud), but that doesn’t mean the new models don’t enable some far more complex forms of chicanery than those 90s-era complaints about overpriced CDs.

Referring back to the Canadian Supreme Court decision in the Equustek case, the significance of that decision (despite the wailing and teeth-gnashing at EFF et al) is that it recognizes the ways in which the tools we use to derive benefit from the web—search, SEO, keywords, etc.—are very easily wielded by hucksters, spammers, and outright thieves.  No, listening to a Bob Seger impersonator on Spotify isn’t going to hurt anyone, except perhaps Bob Seger, but reading fake news does, and so does buying counterfeit products or accidentally giving information to a scam service.

I doubt we’ve heard the last on the question of whether or not Spotify is actually commissioning works under pseudonymous artist names, or where that investigation might lead.  To me, these latest revelations are just part of the same narrative that keeps unfolding this year—that the “new models” of the digital age have some serious flaws for which the fixes might be that these companies have to behave a little bit like “legacy” industry.  And that may not be a bad thing.

Khloe Kardashian’s Instagram Copyright Mistake

Lens photo by mrbrainous

For all the attention paid to music and motion picture piracy, the most chronically infringed works via the internet has got to be photographs.  The speed and volume with which photos are uploaded and redistributed by both commercial and non-commercial users is so constant that it occasionally results in some amusing—if not infuriating—mistakes.  Like the time in February of 2013 when the Fox News site posted a photo of newlyweds kissing atop the Empire State Building above a headline that read:  To be happy, we must admit that men and women aren’t ‘equal.’ In response, the forces of the internet had a blast letting Fox know that the pair depicted in the image are both women—the first same-sex couple to wed after New York State legalized these unions.

Such gaffes are not limited to people espousing uptight social values, of course; but this kind of mistake says a lot about the use of images today because such a dumb error, presumably made in haste, implies that nobody involved with the Fox story bothered to seek—or probably even consider—permission to use the image.  It was taken by photographer Richard Drew and is registered with AP along with a standard description on its web page, so it would be pretty hard to legally license the photo without realizing that it depicts a same-sex couple.

It is an understatement and a half to say that social media platforms have fuzzed-up general understanding of permission to use photographs today, even for certain professionals who should know better.  When photography collides with celebrity and social media, though, I guess we should not be surprised that Khloe Kardashian (or someone who works for her) didn’t know that she needed to obtain a license from the rights holder, even to display an photo of herself on Instagram.

The photo, taken by Manual Muñoz, is a fairly typical, professional-quality paparazzo’s capture of Kardashian walking toward camera in 1/4 profile, reportedly heading into a trendy Miami restaurant.  The copyright in the image is owned by Xposure Photos UK LTD, which had sold a limited license to the Daily Mail, whence it is alleged that Kardashian copied the photo to her Instagram account without permission and, in the process, removed the rights management information from the image. Thus, Kardashian is potentially on the hook for violating three sections of the U.S. Copyright Act—the right of reproduction (§106(1)), the right to publicly display a pictorial work (§106(5)), and removal of copyright management information (§1202(b)).

The complaint filed by Xposure specifically notes the commercial nature of Kardashian’s use, alleging that “…every one of Kardashian’s Instagram posts is fundamentally promoting something to her 67 million followers.”  While commercial vs non-commercial use is not dispositive in determining whether or not an infringement exists, it can factor considerably in the kind of relief a plaintiff may be granted by the court.

Khloe Kardashian is a business, what marketing professionals call an influencer—someone whose social media following is so large that they earn fashion shoots, paid appearances, and endorsement opportunities worth millions of dollars.  As such, Xposure would seem to be on solid ground in pursuing the upper limits of relief for damages. Their argument that “every photo promotes something,” should carry considerable weight, even if that something is Khloe Kardashian herself.

The distinction between personal and professional use of a platform like Instagram is something any user, not just celebrities, should more carefully consider.  I suspect it’s become so habitual at this point to share images as rapidly as they’re made that even public figures with professional management teams forget that they have the same legal considerations to make before publishing on social media as if they were proposing to publish an old-school print campaign.

Additionally, because platforms like Instagram provide the opportunity for people to create their own celebrity by blurring the line between “private” and “public” moments—for instance, displaying provocative selfies alongside professional fashion photos—mistakes like Kardashian’s are almost inevitable.  According to the Wikipedia entry for Kendall Jenner, Vogue dubbed the crossover between social media self-promotion and the world of professional fashion modeling as the “instagirl era.” And as Vanessa Friedman recently noted in The New York Times, being this kind of influencer can come with unanticipated liabilities, like the possibility that the models who helped promote the disastrous Frye Festival may be named in the class-action lawsuit against event organizers.

All prospective instagirls and instaboys, especially those who don’t have Kardashian resources, should remember to consider the rights and implications of a photo before publishing.  Anyone using, or hoping to use, social media to grow their own brand as influencers or creators, should be wary of the anti-copyright messages suggesting that these legal considerations are obviated by the relative ease of distribution via digital platforms.  The authors of those opinions will not be defending you in a litigation.

Don’t Confuse Copyright With Publicity, News, & Commentary

I caught a piece of a conversation on The Talk about this story, with the celebrity panel largely focusing on the lack of rights enjoyed by public figures.  The discussion segued rather quickly from copyright to privacy, commenting on the fact that Kardashian is not allowed to use this image without permission, but then contrasting this fact with the apparent contradiction that she also would have a hard time removing invasive or embarrassing images captured by the types of paparazzi who trade in wardrobe malfunctions and other salacious forms of “news.”

While I personally sympathize with public figures when they’re the targets of cheap, gimmicky invasions that serve only puerile social interest, the fact remains that one price of celebrity is an abandonment of privacy because public figures are—in a first amendment context—always news. Just about any image of a public figure that is legally obtained counts as reportage, protected by the first amendment—even wardrobe malfunctions and other moments of human folly.  One may also lampoon or otherwise comment upon a public figure by altering their images, as long as that alteration doesn’t implicate libel.  Such alteration could violate a copyright, but it will not have anything to do with the publicity right of the person in the image.

The right of publicity is protected at the state level, hence varying statutes, but the general principle is that no individual or entity may use the likeness of either a private person or a public figure for the purposes of endorsement of a business, a political message, a social agenda, etc. without that individual’s permission.  Even users of stock photos should note that there are often separate model releases requiring that licensees get permission from the models for any use that would be considered endorsement.

When it comes to violating the publicity right, the same factor that makes Kardashian’s alleged copyright infringement (i.e. that she’s a famous brand) potentially more expensive would also give her claim more heft if she were to seek damages for unauthorized use of her likeness for the purposes of endorsement.  In short, the fact that she is news gives the paparazzo’s photo a market value that she has no right to control or infringe; but at the same time, her likeness is also valuable to advertisers, which she has every right to control and protect.   General discussion of theses stories occasionally conflates these principles.

Can “Charging Bull” Artist Have “Fearless Girl” Removed?

When the story first broke about the “Fearless Girl” statue, I didn’t pay it much more attention than I had ever given to the “Charging Bull” that the girl now faces in her defiant, wind-blown pose.  I always assumed the bull simply represents the financial industry the same way I assume “The Garment Worker” statue on Seventh Avenue represents the fashion industry.  Then, when “Fearless Girl” arrived, I figured somebody was making a dual statement—one about women in business, the other about voracious capitalism—and my reaction was somewhere between ambivalence and supportive amusement. I liked the spirit of “Fearless Girl” on first impression but had little interest in all the discussion about it.

Of course, one of the most intriguing aspects of art—and perhaps this is even more pronounced with public art—is that context changes everything.  Appropriation art is usually meaningless without context, and there is an extent to which “Fearless Girl” is an appropriation. Credit for making me think about this goes to author/photographer Greg Fallis, who wrote a blog post after getting some social-media flack for saying that “Charging Bull” sculptor Arturo DiModica “has a point” in requesting that “Fearless Girl” be removed from its installation.

This is of course the outer layer of context:  once a work is in the public eye and has been imbued with a particular significance (in this case feminism tinged with anti-corporatism), then any complaint or comment about the work is apt to be distorted by that lens. And woe to the critic as a result.  Mayor DeBlasio’s office, in response to DiModica’s request to remove the new statue, tweeted “Men who don’t like women taking up space are exactly why we need the Fearless Girl.” On this point, I agree with Fallis that the Mayor’s statement is both true and perhaps entirely beside the point with regard to the nature of DiModica’s complaint.  You may not be surprised that it has something to do with copyright. (And spoiler alert:  I don’t think he has a case.)

I didn’t know until reading Fallis’s blog that Arturo DiModica owns “Charging Bull” and that he produced and initially installed the work at his own expense of roughly $350,000.  An Italian immigrant, inspired by the kind of patriotism unique to immigrants, DiModica began working on the bull in response to the malaise that followed a major financial markets crash in 1986.

The bronze, three-and-a-half-ton work took more than two years to produce; and in the early morning of December 15, 1989, DiModica and his friends “dropped” the bull on Broad Street in front of the New York Stock Exchange—a gift to the city that was, as Fallis eloquently writes, “…maybe the only significant work of guerrilla capitalist art in existence.” The NYSE did not appreciate the gift and had the bull removed; but citizens, the Parks Commissioner, Mayor Koch, and the Bowling Green Association worked to place the “Charging Bull” where it has stood ever since, at the northern end of Bowling Green.

For DiModica, “Charging Bull” was not so much a statement about the swaggering bronze balls of capitalism but was meant, according to the artist’s website, as a “gift of encouragement to New York and the world.”  As symbols go, one might consider that the southern tip of Manhattan—originally colonized by the Dutch—is the birthplace of America’s more entrepreneurial, culturally diverse, and free-spirited nature.  So, the bull charging northward out of this part of the city can certainly be considered in a broader context, but let’s face it:  an eighteen-foot bronze bull standing in the heart of the Financial District can no more escape its capitalist connotations than it can run to the Upper West Side to shop at Zabar’s.

Enter “Fearless Girl,” which was made under very different circumstances.  In short, she is an advertisement for a socially-conscious investment product called SHE, offered by State Street Global Advisors with over $2.4 trillion in assets under management.  The girl standing up to the bull was commissioned by this Wall Street firm, conceived by advertising giant McCann, and purposely “dropped” in front of the bull the night before International Women’s Day.  So, it’s guerrilla art-ish—if corporate backing, ad-agency planning, and city permits count as guerrilla.

What Are DiModica’s Rights?

The commercial nature of “Fearless Girl” may or may not sully her relevance in the eyes of the public, but it is central to DiModica’s complaint and desire to have her removed.  Placed in defiance of the bull, DiModica contends, that the girl changes the meaning and intent of his work from something positive to something negative. In this regard, “Fearless Girl” is appropriating “Charging Bull” by changing the context of the original work; but because this appropriation has been done to promote a product sold by SSGA, attorneys for DiModica are considering whether or not to file suit under a law known as the Visual Artists Rights Act (VARA).

Passed in 1990, the VARA is part of the Copyright Act, §106(A), and it primarily concerns the right of an artist to protect his/her reputation by preventing the misuse of his/her name.  Rights pertaining to reputation of the artist rather than those solely focused on the works are referred to as “moral rights,” and they are a particular subset of intellectual property.   The part of the VARA statute that would theoretically pertain to DiModica’s complaint would be the artist’s right to the following:

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.

According an article by Isaac Kaplan about this possible legal case, attorneys for DiModica will look at both the commercial aspect of “Fearless Girl” and at the fact that the city apparently allowed for an extension of the cobblestone foundation to accommodate the new statue.

If the cobblestone base can be considered part of the original work, this would potentially implicate the VARA statute prohibiting “modification,” but that modification has to be “prejudicial to [the artist’s] honor or reputation,” which sounds unlikely to prevail to this layman’s ear.  Moreover, the original circumstances pertaining to the installation of “Charging Bull” in 1989 appear to indicate that only the bull itself belongs to DiModica but not any vision of placing it on a cobblestone base at the tip of Bowling Green.

I suspect the commercial nature of “Fearless Girl” would also be unlikely to persuade a court that the work infringes DiModica’s rights under VARA, though this argument certainly gets into an area that could theoretically harm an artist’s reputation.  In this case, DiModica’s attorneys would presumably have to demonstrate that the appropriation negatively alters the original “meaning” of the work to the extent that it reflects negatively on the artist himself.

On the one hand, it seems like a difficult argument to make that VARA can protect any artist’s originally-intended meaning in any work; and this seems especially tricky with “Charging Bull.” Once a work is placed into public view, the artist no longer gets to decide how it is perceived; and as indicated above, I think any reasonable person who first encounters “Charging Bull” will make the same assumption I always have—that it is very much a celebration of unbridled capitalism.

If this were not the case, “Fearless Girl” would probably never have been conceived as either “pure” art or advertisement.  SSGA, artist Kristen Visbal, and McCann are all clearly relying on a general interpretation of “Charging Bull” as a symbol of aggressive capitalism in order to provide a context for “Fearless Girl” to be saying anything at all. And it seems clear from public response that this is the context in which “Fearless Girl” has been interpreted.

On the other hand, DiModica’s reputation is linked to how people perceive “Charging Bull,” and it would be tough to argue that “Fearless Girl” is not at least a bit of a fuck-you as well as an ad for a corporation.  But, commercial or not, is the work truly a gesture at the meaning DiModica originally intended, or is it a gesture contemporaneous with evolving feelings about capitalism and the role of women in the market?  I would argue that it’s the latter and that any artist who puts a sculpture into a public space cannot hope to control how that sculpture may be viewed against the backdrop of history.

Still, if another corporation were to make a more outlandish alteration of the bull for commercial purposes—like a steakhouse chain paints the classic cuts of meat outlines on the bull’s bronze skin and photographs it—that would certainly seem to be actionable under both traditional copyright infringement and VARA statutes. Not to mention city ordinances prohibiting vandalism.

As Fallis points out, DiModica could take his bull and go home; it is his physical property as well as his intellectual property.  This would leave “Fearless Girl” standing up to the southern tip of Manhattan for no apparent reason, although the fun part of that hypothetical scenario is that viewers would begin to apply new and various meanings to the work as a stand-alone piece.  So, in this regard, “Fearless Girl” is not purely a work of appropriation.

For all the fuss, there is at least a whiff of (yep) bullshit about the fact that “Fearless Girl” is defiantly marketing a product for a giant investment firm. Of course, advertising can be art and vice versa, especially in America; and one could make an argument that, for better or worse, this blend of culture and commerce is part of the same spirit DiModica was tapping into with “Charging Bull.” I can certainly sympathize with the artist’s feelings even while I am dubious about his legal standing under VARA.  Moreover, it turns out that I had a lot to say about a story that didn’t initially grab my attention.  Context changes everything.