Category: Intellectual Property

Times are a changin’ – but in what direction?

I am a son of the advertising business.  The year I was born, my father was a senior writer  working for Guy Day in Los Angeles prior to the 1968 merger with Jay Chiat that would produce the industry powerhouse known as Chiat/Day and is now known as TBWAChiat/Day. In the late 1960s, my father’s contemporaries in general, and Chiat/Day in particular, represented a revolutionary generation of advertising professionals who changed the game demonstrably from the world we see fictionalized in the hit show Mad Men. Up to about the mid-1960s, a job in the ad business was often a favor granted to young, white, protestant men by old, white, protestant men, who generally had few talents beyond the art of the three-martini lunch. By the 1970s, the ad business had diversified culturally and geographically beyond the aeries and saloons of New York and Chicago, and with this came a renaissance in which writers, art directors, and filmmakers all took creative risks that were unthinkable just a decade before.

d046472bf2477f706780aaa1a5d8246bSo, what are we to make of this campaign?  Does it represent the visionary legacy of the agency just keeping in step with our digital times? Or is it a reversion to the days of old-boy networks selling Lucky Strikes in the schoolyard? One thing it is not — is  terribly creative.

For the next couple of weeks, Times Square will include among its multi-million-dollar outdoor placements, a stark display headlined by the declaration Piracy is Progress.  This provocative lead is justified by the pretense that it is merely a benign attention-getter inviting “artists” to a website where they can vote Yay or Nay on the question of whether piracy as a good or bad thing.  The campaign itself is claimed to be the concept of the band Ghost Beach as a means to “stimulate discussion” on the issue, and the agency of record is TBWA Chiat/Day. But let’s guess that there’s no way Ghost Beach is paying for the campaign alone, if at all, especially the quarter ton of raw bullion it costs to buy space in Times Square.  So, who is paying for the campaign to declare that piracy is progress on the world’s largest ad stage? Chris Castle is dead right to call the headline Orwellian, and I have to say that the brain warp induced by an encounter with this particular sampling of Newspeak jostles a not-too-distant memory of an award-winning TV commercial for Apple Computer based on 1984 and produced by…guess which agency? Well, one must roll with the times, I suppose, and maybe Big Brother is cool now.

The fraud in this campaign barely warrants discussion, as I think it would be obvious that the online poll question about piracy is exclusively a diversion being used to sell one particular answer (and maybe a few Ghost Beach albums). I’ll give the guys at TWBAChiat/Day this much:  it is the quintessential ad for our times — creatively facile, a careless abuse of a complex issue, and shrouded in the guise of phony populism. It is exemplary of the worst in communications in the digital age in that it pretends to invite participation, pretends to ask what you think while telling you exactly what you should think. And let’s not spend too much time considering how absurd it is to claim that an online poll can invite one particular group to participate and then state with any accuracy that these are the people responding.  Here’s a random Tweet from one “artistforpiracy”:  Any artist that disagrees I would love to hear why you prefer record labels ruining your music instead.  In other words, more of the same hackneyed presumptions from people who don’t make art for a living and have no idea what they’re talking about.

When I was in my early teens, I remember asking my father if there were any clients he wouldn’t pursue — by this time he was running his own L.A. agency with an art-director partner he met at Chiat/Day — and his one-word answer was, “Cigarettes.”  Interestingly enough, in a 2004 Adweek Interview with TBWAChiat/Day’s current Chief Creative Officer, Mark Figliulo, was asked the same question, to which he replied, “The George W. Bush campaign.”  Fair enough, and I guess I can count Mr. Figliulo as a fellow progressive; but then I’m confused by the failure of social responsibility here. After all, Mark Figliulo has done a lot of really solid, creative work in his career, even directing some of his own TV spots or working with talents like Spike Jonze on commercials for Miller Lite.  It is, therefore, somewhat surprising to think that professionals like Figliulo and his creative team fail to consider the intricate relationship between their own careers and those of artists and rights holders, who might choose not to be exploited.  Just as one obvious example, Miller Lite has a pretty strong brand association with the NFL, and last I checked, those guys are rather serious about protecting their broadcasting rights from piracy.

Whoever paid for this campaign is probably a very attractive client, and maybe the short money says screw the artists. On the other hand, maybe the creative team at TBWAChiat/Day really do believe they’re on the leading edge of the next renaissance.  I don’t presume to know their minds, but I do have to say this campaign has all the integrity and cleverness of “More Doctors Smoke Camels Than Any Other Cigarette.”

See follow-up article here.

Copyright, copyright everywhere…

There is certainly no shortage of copyright in the news these days, and readers of this blog might wonder about my silence on subjects like the Supreme Court’s ruling in Kirtsaeng or the testimony before Congress by Register of Copyright Maria Pallante calling for the next great overhaul of the law. For starters, when I began writing IOM, I never intended for it to overemphasize copyright as a topic; and I have stated repeatedly in posts and comments that there are plenty of sites (see blogroll) hosted by legal experts in Intellectual Property, which I do not presume to be. In fact, one of my ongoing criticisms of the Web is that its mechanisms tend to bring out the armchair expert on all subjects, regardless of their complexity, which invariably reduces even the most intricate matters to popular sentiment based on prejudices already held before discussion began.  An illusion of discourse heading in no particular direction.

I write this blog from two main perspectives — as an artist working to navigate a changing career in the middle of tremendous upheaval and churn; and as a citizen with a measure of socratic humility, admitting that my observations are limited and that there are always experts who know more than I about many things. I bet if I walked into my local diner and talked to the 50+ crowd, I could gather a smattering of opinions on say North Korea but probably receive blank stares on copyright.  If I did the same thing with a bunch of local sixteen year-olds, I might get blank stares on North Korea and an earful on the evils of copyright.  Odds are, of course, few of these opinions will be grounded in quality journalism, let alone first-source expertise.  Yes, the Internet makes it possible to cut through bumper-sticker politics and acquire expert information, but it’s also a great tool for repeating the bumper stickers, which is why amateurs can make a whole career out of repeating what people want to hear, regardless of substance. So it is with copyright.

If uninformed, declaratives about copyright are the froth in your latte, then TechDirt is the site for you. I read Mike Masnick’s post, for instance, concerning Pallante’s testimony, and the typical blogger thing to do would be for someone like me to critique that post fallacy by fallacy; but the prospect of doing so is almost as tedious as it is futile.  After all, both Masnick and I are about as expert on copyright law as we probably are on plumbing.  Those opposed to strong copyright protections already agree with his post, and those in favor will agree with mine. Meanwhile, I’m betting a large segment of the American population neither knows nor cares to know about the inner workings of these laws; so I often find myself wondering about the value of us amateurs arguing via blog over some of the more fleeting and granular aspects of a legal system that will likely take several years to evolve into its next incarnation.

So, for anyone who reads this blog and is not knee-deep in the gore of the copyright battle, the big picture as I see it this:  I believe the copyright system will change over the next decade or so, but if that change is predicated too much on the self-serving premises of its tech-industry antagonists, the results for artists in particular, and for society in general, will be regressive rather than progressive. It would be like allowing the oil industry to overly influence emissions policy.  Copyright stifles innovation is a popular meme and a cornerstone premise of the entire cabal aligned against the system, but this assertion is never supported by solid examples or data, which leads one to conclude that innovation describes what is contemporary and popular, regardless of whether or not it is economically progressive or, dare I say, fair.  We generalists could boil down the details to  a few fundamental questions when considering the future of copyright:  Is enterprise-scale piracy innovation or exploitation? Is the right of the author a civil right or a government handout?  Is copyright relevant for the individual or just a tool for big corporations?

These may be questions my kids’ generation will have to answer, but in order to do so honestly, they will need to come to terms with certain practical realities that don’t require legal scholarship.  First, they’ll need to recognize that the Internet is not an extension of themselves, but a technological piece of infrastructure over which just a few corporations wield unprecedented power.  Next, they’ll need to see past the selfish habit of acquiring media for free and accept that there is no such thing as an economy based on free stuff, that someone always pays and who pays makes a difference.  They’ll need to recognize that no matter what they believe about big media companies and lobbyists, flesh-and-blood, independent artists and small creative businesses are experiencing tangible and measurable harm. In fact, as I write this, musician and activist David Lowery, speaking at the Canadian Music Week’s Global Forum, just said the following: “The first week our new Camper Van Beethoven album came out, I watched one seed on BitTorrent distribute more copies than we sold.” I think you have to be both daft and depraved to describe this as innovation, and this kind of spin has no business informing the future of copyright.

I was asked the other day by a gadfly baiting me on Twitter if a “win” for me would be the triumph of the RIAA and the MPAA. I don’t know what that means, and neither does the gadfly; but these implicit accusations are typical of the associative politics to which neither conservatives nor progressives are immune.  Such interactions are circular, boring, and meaningless. And the hypocrisy is off the charts. I won’t pretend I’m a legal scholar, but the number of tech utopians who presume to lecture the creative community about how to make albums, motion pictures, and other works is truly staggering.

As I say, this blog was never intended to be all about copyright, and it occurs to me that part of its intent was to share observations from the perspective of developing new film projects in the current landscape. I admit that I am too easily attracted to the broad discussion, and I shall make an effort to steer this blog to be a little more film project focused, if for no other reason than film is next and may be more vulnerable than music.  It’s been a long time since Lars Ulrich was pilloried on the steps of Napster, and today we see musicians, from fairly obscure to the biggest names, coming forward to talk about artists’ rights in the digital age, and not without reason.  The truth is I don’t care if I or one of my colleagues develops a new film as a self-produced project, a deal with a Netflix, a traditional studio, or an established indie production company — whatever best serves the work.  But there is not one of these paths that is not founded on the right of the author to retain first choice in the process by establishing a precedent of ownership in the work.  Beyond that fundamental reality are many intricate details for professionals to work out and a whole lot of amateur-hour bullshit that deserves once and for all to be moved to the fringes of the debate.

Choice Words & The Right to Choose

Photo by David Crockett
Photo by David Crockett

Announcement of the Copyright Alert System just over a week ago brought some new readers to this blog, and among these was one who was offended by this post, which is coincidentally the most-read to date.  My use of the word slavery in context to BitTorrent sites exploiting labor inspired the reader to call me a racist. You can decide for yourself whether the accusation is fair, but the subsequent exchange of comments did leave me thinking about the word slave, which made me think of Prince, who performed in 1993 on Late Show with David Letterman with that very word inscribed on his face. [Date and show name corrected from original post thanks to comment from a regular reader.]

Prince is an unqualified musical genius, and in the tradition of geniuses, he has been as provocative in managing his career as he is with the production of music itself.  It occurs to me, though, that this particular artist also unwittingly personifies so many of the emotional and functional complexities in the business of making and selling music in the digital age.

Presently, the 1984 hit song “Let’s Go Crazy” is at the heart of an ongoing case, Lenz v UMG, brought by the Electronic Frontier Foundation in 2010. The case involves a DMCA takedown of a home video from YouTube depicting a baby dancing in a kitchen while Prince’s song plays on the radio in the background.  The short story is that the video was taken down in error and then restored, which is pretty much how DMCA is meant to work, but of course the video and Mrs. Lenz’s temporary inconvenience aren’t really the point. See Terry Hart’s analysis from August of 2010.

Interestingly, the CAS bump in readership here also brought a new reader/commenter with whom I had discussion about the altruism (or not) of organizations like EFF; and Lenz makes a pretty good example of what looks to me like a group of lawyers making much ado about nothing while hiding a rather large axe to grind.  The general public gets the easily digestible image “Prince sues mother and baby,” even though the suit was brought by Lenz and the EFF.  But the aura of Prince provides good cover for the real motive in this case, which is that the EFF is seeking a ruling that UMG willfully issued takedowns to non-infringing material (because honest mistakes are not grounds for a suit) in order to establish a precedent that would place a higher burden on creators seeking to protect their works online.  Writes attorney Luke Platzer in this guest post at Copyright Alliance:

“…the expansion of the 512(f) standard to challenge the reliability of copyright owners’ takedown processes — thereby forcing copyright owners to use more precise, but potentially much slower processes — appears to have been at least in part EFF’s goal in bringing the Lenz case.”

If you read the recent article in the Wall Street Journal about NBCUniversal’s counter-piracy efforts which can hardly keep up with its notice and takedown process, you might understand why many independent content owners have given up hope of protecting their work online; but by bringing the case in Lenz, the EFF would like to make that process even harder. In fact, cases like this aren’t about the work, they aren’t about the artist, they aren’t about free speech, and they aren’t even about fair use.  They’re about ivory-tower academics making a career out of fighting a problem that doesn’t exist. To paraphrase Hart, DMCA was 12 years old when the case began, and this relatively benign and temporary video takedown was the best example they had to reflect a supposedly comprehensive threat to free speech and democracy.  In fact, the recent misuse of DMCA by NASCAR to remove footage of a crash from YouTube makes a much better example than Lenz, but  Lenz  is already underway.  Still, the fact that Prince is the face of this story is somewhat paradoxical, although not necessarily incongruous, if we understand the mind of the artist.

Where this stuff gets a little complicated for the casual observer is that Prince is in fact an ardent — some might even say obsessive — protector of his rights on the Internet. He has gone to great length and expense to control where and how his work is used but has never, to my knowledge, filed suit against an individual user or fan for infringement. For anyone who thinks copyright is just about money, consider the likelihood, that it costs Prince more to pursue these actions than it is probably worth on the balance sheet. So why does he do it?  I don’t know the man, but I’m going to guess that it’s the same passion that drove him to the performance he gave in 1993 on Letterman.  It is one of the few live TV acts I’ll never forget because it was so strange — this virtuoso guitarist playing as though wrapped in a straight jacket, and scrawled on the side of his face in what looked like black marker, letters organized vaguely into a guitar shape akin to the glyph that would become his temporary moniker, the word — SLAVE.

I do find it fascinating that the same musician who has been unfairly tarred in the Lenz case is the one who can reasonably be described as our generation’s poster child of the artist bucking against his corporate “gatekeepers,” for those who would use that term. In fact, Prince’s frustration with Warner Music back then had nothing to do with money per se, but with the label’s reluctance to release his new album Gold over concerns of “saturating the market.”  Restraining an artist is a difficult thing, and I can only imagine doing so with Prince would be like trying to lasso a stallion with a length of yarn.  Yet even in the years subsequent to these events, even with all the resources at his disposal, Prince has not thoroughly embraced the so-called “permissionless culture” promoted by legal scholars, who perhaps don’t actually understand artists.  Some will assume the motive here is greed, although I would argue that this assumption is likely a misunderstanding of Prince in particular and many artists in general.  What those who don’t create art fail to grasp is that controlling distribution is often a component of the work itself.  This is why an artist as passionate, as obsessive, as prolific, and as influential as Prince will naturally rebel against both a Warner Music holding him back and a Google exploiting his work. And, yes, either form of restraint on his choices can make the artist feel like a slave.