Category: Art

Recorded Music is the MOST Valuable

“That’s one of the great things about music. You can sing a song to 85,000 people and they’ll sing it back for 85,000 different reasons.”  – Dave Grohl, Foo Fighters –

I saw this quote posted on Facebook the other day, and I hope it’s properly attributed because it expresses something I had been thinking about shortly after I and many others criticized the pollyanna NY Times Magazine article by Steven Johnson about two weeks ago.  Because by writing for such a prominent publication, Johnson elevated the economic myth that live performances for musical artists are a legitimate substitute for the near-wholesale devaluation of recorded music in our times.  The suggestion is that the musical artist simply has to tour more in order to make up for the revenue stream that was once generated by sales of recordings; and I have encountered this naive assertion so presumptuously worded as to include sentiments like musical artists “should actually work for a living.” These declarations are made as though the production of sound recordings isn’t work in the first place, or as if the person speaking has any clue about the actual costs, logistics, or wear-and-tear of playing live gigs for any artists smaller than a handful of mega-stars.  And then, of course, there are the songwriters and producers and everyone else involved in creating the recorded song, which first attracted the fan long before he or she ever considered attending a live show.  The bottom line is that, as fans, we care way more about recorded music than live performances, and we all know it.  So, it is in our own self- interest to want a market that supports recorded works in the future.

We tend to talk about these things from the perspective of the artists—that they need to make a living, how they can still make a living, and what kind of living we presume to think they deserve—as if the artists’ experiences are external, and even in opposition, to our own interests as fans.  The assumption is that recorded music will always be available and that it will never be compensated any better than it is right now; so the conversation then turns to these often-fanciful proposals for alternative revenue streams, even supported by dubious applications of data by pundits like Steven Johnson.  But even if the numbers added up—and they absolutely do not—I can’t help noticing what a tragically cynical story this has become.  Because after 15+ years of piracy and rationalized predation by major corporate players vying to be lords of the stream, what we’ve really managed to do as consumers is to undervalue the one musical experience that most of us cherish above all.

Live performances are great.  Even in a small venue where the acoustics suck and the beer is warm, watching performers play favorite songs among an audience of other fans is almost always exciting.  But, by and large, this is not how we form personal relationships with music. We form relationships with songs because they are recorded, because they are portable and are, therefore, with us in our day-to-day lives. This is how certain songs become the soundtrack to our most visceral experiences, both good and bad. It’s why songs we may not even technically like or consciously choose to associate with certain moments become part of a unique playlist that only means what it means to us individually.  It’s why if you ask me and my wife what “our song” is, we have to say “Rock Lobster,” whether we would have it be so or not. It’s why putting my three children to sleep is chronologically “Everybody Plays the Fool” by Aaron Neville; “Into the Mystic” by Van Morrison; and “Hey Mambo” by Dean Martin.   Even as I write this article, I see that a friend—a much younger person—has posted on Facebook that he is coming to terms with the realization that he may actually like the band Squeeze.  How apropos. Since my college years were 1984 – 1988, Squeeze is prominently featured on the soundtrack of that chapter in my life. That’s just how we relate to music.

We are told that scent is the sense most directly linked to memory, but speaking from my own experience, I find aroma often triggers the sensation of a memory I can’t quite identify, while songs are hardwired to my biography with absolute precision. I assume this is most people’s experience with music and feel bad for anyone for whom it is not.  And because these associations are so powerful and, in my opinion, so valuable, I often ignore or at least compartmentalize a lot of agnostic music criticism. Of course, there is real genius and virtuosity that must be recognized, but this is something separate from the serendipitous connections between songs and life’s milestones. So, that first serious, adolescent kiss just might happen while the main title song for the Dukes of Hazard is playing.  I’m just sayin’…it might.

At the start of this holiday weekend, we were in the mood to play a bunch of hits from the days of A.M. radio—those years when as kids we rode around in the backs of station wagons without seat belts, and all the good music played on tinny, monotreme speakers in the center of the dashboard.  And hell yes, it’s cool that a streaming service now enables us to tap into these memories on-demand and play tracks—from the corny to the sublime—that we can blast through the house in 2015. A few songs by Carly Simon naturally made the cut on this playlist; and I think about the enormous contribution of this prolific singer/songwriter, who admits to having painful stage-fright; and I want to throw things at the smug pundits who shruggingly declare, “The market just doesn’t support that anymore.” Because if that’s true, it’s the market that needs fixing.

I don’t think I’ve heard Linda Ronstadt’s rendition of Roy Orbison’s “Blue Bayou” since those low-fi days, when I was too young even to appreciate it, but in surround-sound to my adult ears, it really is a gorgeous version of a classic that should be treasured.  And if you look at the names of the professionals who played and/or sang on her platinum album Simple Dreams and think for a moment that a new Ronstadt somewhere out there will ever produce songs of a similar quality without the investment model we call labels, you simply have no idea how recorded music is produced. But I assure you it has almost nothing to do with the affordability of digital tools.  Like all works, the real investment is in labor, skill, experience, talent, and time. Just because a great recording can be made by one person with some low-cost digital gear, that does not mean we, as listeners, want the range of available recorded works to be so universally limited. To put it another way, yes, a filmmaker can produce a feature with a few friends and an iPhone, but he cannot produce Game of Thrones that way—or really almost any of the films you want to see.

So, while my youngest danced around to “I’m a Believer” by the Monkees, having no idea what he was listening to, I thought about what a streaming subscription costs versus what it should actually be worth to me.  The singles I had cued up in a matter of minutes would have cost about $25 in 1973, which is nearly $143 in 2015, if we factor for inflation.  But a subscription to a near-global catalog of music that turns my sound system into a home jukebox only costs about ten 2015-dollars a month? There’s no way that adds up; and no amount of magical wordplay from the Internet industry can make it add up, especially for the next generation of recording artists, and quite possibly for their fans.

The personal relationships my kids are forming with the music they’re listening to right now will be the basis of their own nostalgia in 20 years.  Yet, despite the fact that this personal interaction with music is as meaningful as it ever has been, the market in which artists are working today insists that their recordings aren’t worth anything. They are told these products are just loss-leaders, which must be produced in order to generate a fan base, which might be convertible into revenue by some means other than direct sales of the product itself. No business model actually works this way; but, of course, a young entrepreneur can operate at a technical loss for a while and have a bit of fun before the numbers start to catch up and reality sets in.  When recorded works themselves cease to be a commodity (i.e. they’re made for the purpose of selling something else), they cease to be the basis for investment, and this can limit the range of creators’ options to collaborate and produce a richer universe of sounds.

But, of course, look at all the work being produced right now, say the tech-industry pundits.  We have a greater variety of music out there than ever before! This is true, which is why critics like me and my friends are called “luddites” and accused of “clinging to old ways.” But in the bigger picture, we are also witnessing very early stages of these market transformations.  The switch from digital downloads to legal streaming is just a few years old; and it is far too early to conclude what the results will be over the next decade or two simply by looking at how creators are trying to respond right now.  Certainly, there are a lot of creators making all kinds of music and putting it out there for us to enjoy, or not; but if a lot of that music is being produced by artists under age 30 and they cannot build sustainable careers over the next decade, we don’t know what the results will be.  What we do know (even with all the horror stories) is that when people invest in the recordings themselves, making bets that these products will be valued, that this model produces a great variety of works for us listeners.

That eldest child whom we put to sleep with Aaron Neville is naturally into metal and punk as a young adult.  And he recently introduced the whole family to an artist who, by all appearances, is what we might realistically call a rising star, though not likely destined to be a mega-star.  Her sound is original, her guitar playing has been critically praised by fellow professionals, she’s touring, selling merch, she’s hot, and she fits the profile of an artist who would traditionally have a 10+ year career with an indie label.  As a colleague of mine with 30 years experience working with indies told me, “Under the old system, I can say with confidence that this artist would have ten times the recording sales she does today. And that would be enough for us to have invested in her career and provide all the support she needs to develop and produce her best work and to support her with marketing, booking, openings for bigger acts, videos, etc. Today, we can’t make that investment.”

The counter-narrative to this indie-label model is that, thanks to the Internet providing a free platform for promotion, the artist can be her own support system, and therefore, “keep 100% of the recording sales” rather than share any of it with that grubby label.  Except the way this translates in reality is that the artist gets to do the work she knows (make music) plus a lot of the work she doesn’t know (marketing, booking, producing, etc.) and “keep 100% of recorded music sales & license fees,” which are now so low that they almost might buy coffee for the people who’ve done her favors in the last month.  By comparison, the “outdated model” was based on a business strategy, in which the indie label says to an artist like this, “You may never make us millions, but we see a way to invest in your career and make that work over the coming decade or so.”

But pretend we don’t care about the artist herself in this narrative. Still, the potential loss to us as fans just might be that kick-your-ass, break-your-heart, can’t-live-without-it album she never produces—because, of course, musicians are mortal except for Keith Richards.  By 35, this hot, punk artist will be another person than she is today. She may be a little burned out on constant touring, or get married, or want a kid, or want to have some kind of personal life beyond producing music for her fans to not pay for.  And wherever life leads her, this narrative will produce new music in her; and there may be some masterwork lurking in the alchemy of 2022.  But because there were never record sales or sustainable license deals for streaming to properly support that label investment model, there’s no way of knowing what she won’t produce in the coming years as a result.

On the other hand, if our assumption is that she’ll produce anyway—because that’s just how artists are or because artists “do better” when they struggle financially—then as so-called fans, we really have become cynics and leeches.  We have no reason to presume that we deserve recorded music for nothing, or next to nothing, just because digital technology makes it possible or because the recording industry has a checkered history. Those are just excuses for our cynicism.  Many of us could not imagine a world without recorded music, so how can anyone so dismissively say that it is of little value?  Probably, the most cynical belief of all is that recorded music—let alone complex, distinctive, and experimental recordings—will always be widely available no matter what market conditions prevail.  This may prove true, but not necessarily.  As long as the product we value most of all is the one for which we are least willing to pay, it seems reasonable to say that the future is anything but certain.

The Comic Strip as Model in the Digital Age

I just watched a fun little documentary film called Stripped (2014) made by David Kellett and Frederick Schroeder about comic strip creators. The film features interviews with veteran artists whose careers were born in the syndicated market as well as contemporary cartoonists whose work never graced a newspaper but instead found an audience in cyberspace. Every artist interviewed generally seemed to agree (editing notwithstanding) that the digital revolution resulted in an explosion of fresh, bold creative work in the medium and even provided a path for both new and established artists to make some kind of living in response to the shrinking newspaper market. Although Greg Evans, creator of Luan, does say that the Web is “pennies to the syndicate’s dollars,” several voices in the film did echo most, if not all, of the major talking points that critics like me tend to ascribe solely to those “tech-utopians” we like to remind our readers are not creators themselves.

These comic strip artists talked about adaptation, new models, new revenue streams, P2P relationships, the whole shebang. And I admit that I haven’t thought about comic strips in years because it’s been that long since I last spread a Sunday Times across the dining table. (Plus, I’m not really over the demise of Bloom County.) But having watched this film, it makes a certain amount of sense that the comic strip might (and I mean might) fare better in the digital age than other media. Or to look at it another way, what can work well for comic strips is instructive with regard to what does not work for other media, including of course comic books and graphic novels, which are different animals altogether.

As I say, I hadn’t thought much about this medium in this context, but several qualities unique to the comic strip do seem well suited by the new-model mantras of our times. In fact, the first image that popped into my head was one of those spreadsheets used to compare and contrast products or services. While there are always exceptions, if we’re going to consider these columns honestly in a way that reflects general rules, this is how it might look:

Comics Comparison

Each of the media listed might theoretically receive a check in every box, but I think it’s notable that comic strips seem to run the table, at least from a casual observation. Stripped also highlights a tradition of adaptation among these artists, citing the interesting fact that  the comic strip as a medium was the result of a class of talented book engravers put out of work by the invention of photography. And though the digital revolution may require some adapting by the contemporary comic strip creator, it does seem less like the kind of radical and unsustainable metamorphosis our new-age gurus presume to demand of creators in other media.

Comic strips are serial in nature, traditionally change daily, and are short-form experiences, which are all attractive qualities to a Web-based audience one hopes to draw consistently to a single site. Comics are also typically produced by a single creator who almost never relies on skilled outside labor to complete the work. And because comics create unique, iconic images, they are natural foundations for potential merchandise opportunities that can become primary rather than ancillary sources of revenue. Fan interaction is, of course, possible with any medium, but based on what I gleaned from the documentary, I got the sense of a natural symbiosis between creating a daily dose of humor or poignancy and regular interaction with loyal readers.

Overall, the qualities of the comic strip that seem to complement the opportunities of the digital age also appear to make them resistant to the threat of the digital age — piracy. And I imagine comics could be relatively piracy resistant, inasmuch as there is no inherent reason a fan won’t go to an official site to see the day’s strip rather than an unlicensed site, when both options are free and equally accessible. Nevertheless, some “fans” still fail to honor artist’s requests to not repost works without permission; and predatory site owners do scrape official comics hosts just as they do with photographs, lyrics, or just about any other asset they can use to siphon web traffic that a creator has legitimately earned for herself.

This is relevant because so many of the new-model theories presuming to tell creators how they should produce and distribute their works are repeated either as justifications for piracy or as proposed workarounds to render piracy irrelevant. Yet, we continue to see that even as low-cost or free alternatives for accessing media are employed, either outright pirate sites or semi-legal predatory sites continue to hijack valuable traffic away from producers. Meanwhile, even if the comic strip artist does prove to be one of the best poised to diversify and take advantage of the digital revolution, the piracy apologists and “copyright is dead” crowd remain eager to cut off alternative revenue sources, like merchandising, which would be meaningless without a legal framework for licensing.

No question the comic strip is an interesting medium to watch, but there are a lot of assumptions floating around out there that what might work for one medium or creator will work for all others, and this simply isn’t the case.

Richard Prince Instagram series reflects digital-age values.

“Of course it’s art,” writes The New Yorker critic Peter Schjeldahl. “… though by a well-worn Warholian formula:  the subjective objectified and the ephemeral iconized, in forms that appear to insult but actually conserve conventions of fine art.”

What Schjeldahl is referring to is a September exhibit at the Gagosian Gallery in New York City by visual artist Richard Prince, who for much of his career has made extensive use of appropriation in his work, though it’s fair to say that many would consider the word work generous in Prince’s case. This exhibit featured 38 images that he re-photographed from Instagram and then ink-jet printed onto canvas in poster size along with fragments of social media comments, emojis, and one comment by the artist himself.  The series has been called “lazy” and “theft” by many, adding to Prince’s infamy among photographers and copyright advocates for continuing to unabashedly use other people’s material without permission.  And last week, those communities again had reason to hate on the artist in blogs, articles, and comment threads responding to the revelation that some of the Instagram canvases were sold at the Frieze Art Fair for up to $100,000 a piece.

No question it’s easy to dislike Richard Prince in this case. Though I feel the vitriol is well covered, I’m happy to jump momentarily on the bandwagon to say that, yes, I think this work is lazy and consistent with other examples of Prince’s disregard for fellow photographers. This of course includes the more serious case in which he got away with appropriating the work of professional photographer Patrick Cariou.  Having said that, though, I do think there’s more to this story than a grabby headline about a rich guy making a pile of money with other people’s Instagram photos.  To that end, it occurs to me to examine this exhibit through the lens of the most common criticisms.

It’s lazy. But is it art?

Apparent laziness or effort on the part of the artist is of little use I think in any conversation about either the social or monetary value of a work. This is in fact a premise I reject on a regular basis on this blog — that the value of any single expression should in any way reflect either the intrinsic or extrinsic cost of production.  If for instance a song moves you, it doesn’t matter if it took the artists who created it six weeks of blood and soul or six hours of beer and pretzels. As audience, our role is to enjoy the song or not; how it came to be isn’t necessarily our business.

Moreover, the history of fine art is full of examples of appropriation, found art, and other expressions that critics both professional and amateur might be tempted to describe as “lazy.” Most notably one thinks of the “Warholian formula” to which Schjeldahl refers, but of course some might express similar disapproval of Jackson Pollack, Marcel Duchamp, or any number of abstract painters, sculptors, and performance artists. But if an exhibit or single work sparks conversation, even makes people angry, then we probably have to concede that the expression is art in the critical sense. And as a technical point, my fellow copyright defenders want the definition of art to be broad and critically neutral. So, I think we should be careful that while assailing Prince’s lack of respect for copyrights in general, we not confuse this with dismissing any work as a non-expression even if we want to call the creator a hack.

It’s certainly true that on the surface, this Instagram series hardly reveals anything we might call work on the part of the artist. The compelling element in each print is after all someone else’s photograph onto which Prince has applied the barest effort and called it his own. It is even a safe bet, given the fact that he is quite wealthy as artists go, that Prince has an assistant or two to do the “heavy lifting” for a project like this. And again this places the exhibit in historical line with the Warhol Factory.  But whether intended or not, I do think Prince has actually done something rather interesting by removing these images from the transient (one might say disposable) platform of social media and forced them to exist at least for a moment as photographs — “Artifying non-art,” as Schjeldahl puts it.

A photographer friend of mine, who also forages in appropriation, says that “photography asks us to hold still,” which is the opposite imperative of social media that demands we keep moving, gorging ourselves, snacking on images all day long. Prince’s use of these Instagram photos may indeed reek of indolence and even shamefulness, but the exhibit itself is also a rather provocative statement about social media and the broader devaluation of photography in the digital age. A good villain in any narrative usually tells us something about a flaw in the hero, and in this sense, the fuck-you-ness of Prince’s choice becomes something of a cautionary tale. It says, “You put these images someplace meaningless and forgettable, but I made them into art.” Peter Schjeldhal calls the series inevitable. If Prince hadn’t done it, somebody else would have, he insists.  And perhaps if a lesser-known artist had done it in some humble presentation, it would trend “cool” on social media. But it was Richard Fucking Prince, and he made a pile of money. And that seems to make all the difference in the world.

The Money (Why does it matter?)

First of all, I think it is important to offer a different perspective on a common theme running through much of the top-line criticism of the Instagram series. Because I think it’s technically misleading to say that this is a story about how a rich guy gets away with copyright infringement to the detriment of the little guy who cannot defend himself. The reality is that in order to sue someone for statutory damages due to infringement of a photograph, the original must be registered with the Copyright Office; and it is almost certain that none of the photographs Prince used (not to mention most of the images on Instagram) are registered. But if one photo were protected and its owner chose to litigate, the fact that Prince is wealthy would only make him a more attractive defendant, not a less attractive one.  It’s always better to sue people who actually have money, so it’s a bit counter-intuitive to suggest that Prince is shielded by his wealth; and it is more accurate to say that he’s shielded by the fact that the photos he used likely offer no path to pursue a claim.  (As a side note, Ellen Seidler at VoxIndie took this story as an example of why we need a Copyright Small Claims Court.)

So, having made that particular distinction about the role of money in this story, I’m still intrigued about its function from an emotional or cultural perspective. What if Prince put up the same show but didn’t sell any of the works?  Immediately, audiences and critics would be forced to judge the exhibit exclusively on its merits or lack thereof, and this might change opinions about it entirely.  Would all of the same people whose photos were stolen suddenly love the exhibit and be flattered because now the artistic statement is more pure, unsullied by commerce?  Certainly, that would be somewhat consistent with the “sharing economy” ethos borne of the digital age.  But a more apt metaphor for turning Instagram images into a physical gallery experience would be if Prince hosted the show for “free” by getting a sponsor to pay him a million bucks. The sponsor could even be Facebook! Would that change anyone’s feeling that Richard Prince is a thief?  If not, then I have to ask why it’s okay for Google, Facebook, Twitter, etc. to do almost exactly the same thing?

Of course another part of the narrative here in which money has a hand is the complaint that Richard Prince gets away with this because he’s Richard Prince.  True.  But welcome to the fine art world. It has always been a rarified environment in which the distinction between genius and charlatan is defined by the chaotic forces of intellect, ego, and wealth. Among those with the resources to pay a hundred thousand dollars for a print, one finds connoisseurs and posers — those who buy according to tastes they’ve developed for themselves, and those who buy according to tastes they’ve let others develop for them. This is nothing new. And this particular brand of commerce will always produce the classic antagonists of the academie and the refusé.   Good luck attempting to parse that. But the reality is that many buyers are investing, hoping their prints will appreciate in value regardless of any particular taste or connection to the work itself. And this means that, yes, Richard Prince gets away with selling his lazy-ass work for that kind of money simply because he is Richard Prince. It was ever thus. C’est la guerre.  Blaming Richard Prince for being Richard Prince is pointless. The question is how the money affects our judgment of him as an intellectual property thief.

Theft (Would this be fair use?)

Although I’ve stated the technical reason why Prince will almost certainly not be sued over any of the works in this collection, the Instagram series still raises the hypothetical question as to whether or not he might effectively make a strong fair use defense in an infringement case.  I’ll stick to my general rule of not offering an inexpert legal argument, especially regarding a case that will never happen.  That said, case law precedent, including Prince v Cariou itself, suggests that the courts could uphold a fair use defense for one of these works, though I certainly think that would be dismaying.  As stated in another post, I believe if fair use doctrine becomes a free-for-all, it ceases to have much meaning as a doctrine and as an important limitation on copyright.

What is interesting from a cultural perspective, though, is to consider the general sensibility about fairness in our times, regardless of any technical understanding of fair use doctrine.  The Internet industry likes to promote the idea of “expanding fair use” because this serves their business model at this time.  And millions of Internet users like the sound of this argument for what I believe are two reasons: the first is that they like the convenience of linking, embedding, copying and pasting without having to worry about infringement; and the second is that so much communication on the Web is produced without any expectation of revenue.

So, I suspect many people favor very broad applications of fair use doctrine as long as it at least appears as though nobody’s making any money.  But when we tell many of these same people, “Hey this wealthy dude just made bank by selling complete strangers’ Instagram pics,” many will say this sounds inherently unfair — as though some tech-age, social compact has been broken.  It’s as though there’s some unspoken rule that says we can steal all we like from one another as long as nobody makes money except the big site owners and the VCs.  There is hypocrisy in the attempt to straddle this particular fence because technically, Richard Prince has done nothing different than Instagram itself. And of course that’s why I think this exhibit that bridges the worlds of social media and traditional fine art is particularly interesting, especially because it’s rude.  Put another way, this exhibit is a manifestation of the kind of copyright paradigm many people are asking for. Creators who buy into the whole “democratization and sharing” narrative should realize it will always be a Richard Prince or a Mark Zuckerberg who will make the money.

I will comment on one of the four factors of fair use here because I believe it may allude to the heart of what many artists and even non-artists find so unfair about this Instagram series.  One of the factors weighed attempts to assess the extent to which a derivative work might threaten the market value of the original.  In this case, such harm could be substantial, particularly given the above statements about commercial value that is tied exclusively to the imprimatur of a famous, pop artist.  Imagine an unknown photographer is trying to break into the market, and along comes Richard Prince, who signs his name to one of this guy’s images and then sells it.  Not only would that be theft in the first place, but it could also render the original photo valueless now that there is a “Richard Prince” version of the same photo in the world.  And that is, at least metaphorically, what Prince has done with the photos in this Instagram series. Not only should that not be considered a fair use in a court of law, but I suspect that on the most instinctive level, it is the reason we are required to hate him.