Copyright Found After Brief Search

Well, artists and authors, I guess you can pack it in. Professor Glynn S. Lunney, Jr. of Texas A&M School of Law has declared copyright dead in a recent 12-page paper that is presumably a digest of his new book Copyright’s Excess: Money and Music in the US Recording Industry. Apparently, Lunney first announced copyright’s demise in a 2001 article tautologically named Death of Copyright, in which he then identified the proximate cause of death as the DMCA. But now, Professor Lunney states, “Copyright is dead. But it was not the DMCA that killed it. It has become increasingly clear to me that copyright, as a law that serves the public interest, was only ever a dream. In the real world, it never existed at all.”

So, copyright didn’t die. It’s been a ghost all along. In his new paper Copyright Lost, Lunney argues that the law’s fundamental promise is “more money equals more works,” and that because his data reveal this to be untrue—in fact, he finds the opposite to be true—copyright has never been the public-serving legal framework we’ve been taught to believe it is. But I think the real phantom Lunney is pointing to is his own scholarship, which begins with a straw man and then proceeds to cite irrelevant (if even true) data to reject a false premise.

Copyright is Not Synonymous with Money

Copyright’s whole purpose does not boil down to “more money equals more works.” The legal framework itself is agnostic with regard to how much money an individual author, or group of authors, actually earns. Yes, the bundle of rights opens up a range of possible revenue streams, but these are uniform (or constant) for the author who earns a lot of money and the author who earns very little.

For instance, the copyrights on a James Patterson thriller are identical to those on Lunney’s new book (I know, right?), even if Lunney’s contract with Cambridge University Press is quite different from Patterson’s contract with Random House. And the copyrights underlying those contracts have no bearing on the market reality that Patterson will outsell Lunney at a ratio of a gazillion to one. Money is a factor in Patterson’s staggering output, but the copyright itself is not predictive of that output.

It is true that one argument for copyright’s value is that the royalties from precedent works can provide authors with the resources to create new works, but this is not the sole purpose of copyright, and it is more than a little mercenary for Lunney to propose otherwise. The author who only produces a single work, even if that work is wildly profitable, does not “owe” society more works because society “granted” the copyright in the one work.

Authors and artists are mortal beings, some gifted with the right combination of skills, timing, luck, and even frailties, that make them especially productive. Others struggle for decades to produce a modest body of work. And, of course, there are external factors like family, health, world events, etc. beyond the author’s control that may affect her output of work. In this regard, Lunney is outright insulting to creators when he invokes a principle of labor economics that may be true among certain classes of workers but is rarely true among artists. He writes …

“Once wages have increased to the inflection point, individuals are earning enough that they want to buy more leisure rather than work. As a result, the income effect begins to outweigh the substitution effect, and the labor supply curve starts to bend backward. Beyond that point, further wage increases will lead the individual to work less, rather than more. In the late 1990s, copyright ensured an effective “wage” for our top artists and authors far in excess of their reservation price, and potentially above the point at which the labor supply curve began to bend backward. Thus, I argued that reducing revenue might actually lead some superstar artists to work more, rather than less.”

Right. Tell that to David Bowie working on Blackstar with his last dying breath. Lunney’s appeal to this principle may accurately describe a wide range of employees who would not necessarily work if they didn’t have to, but it is a minority of creators who actually stop working, no matter how much or little they earn. What academics consistently misunderstand in these analyses is that unlike most people who work to live, most artists live to work.  You simply cannot compare the pecuniary motivations of the average creator with those of some executive at a bank who would “rather be sailing.” Jimmy Buffett sails and has earned a few bucks, but he’s never stopped making music.

Sketchy Data Supporting a Dubious Theory

Nevertheless, having established an incomplete, if not outright false, premise for the purpose of copyright, Lunney sets out in search of evidence to support his theory that higher revenue consistently fails to yield “more and better” works. And unsurprisingly, he finds exactly what he’s looking for in data that not only fails to prove his point, but actually has little to do with copyright. Lunney’s theory can be summarized as follows:

The creation of the sound recording right increased revenue from sales and licensing of recorded music, but contrary to expectations, high-revenue periods were not high-output periods. In fact high output occurred during low-revenue periods.

To arrive at his conclusion, Lunney poses a broad question and a specific question. Broadly, he asks whether “more and better” music was produced at a lower rate after the phenomenon of mass piracy (Napster), and more specifically, he asks whether periods of peak revenue correspond to periods of “more and better” output. He defines “more and better” as “music people want to listen to,” which is a dubious metric because it does not inherently point to quantity and diversity. If there were only 100 songs in the world, they would be very popular indeed.

To observe “what people want to listen to,” Lunney cites Spotify data and finds, not surprisingly, that there is a sharply ascending peak in streams of music produced between 2000 and 2010, and he also shows that peak revenue periods like the 1990s correspond to a substantial dip in current popularity among Spotify listeners. From these data, Lunney concludes that we can “reject the notion that more revenue led to more and better music.”

No, I don’t think we can draw this conclusion, given the wide range of possible conditions that must be considered to responsibly assess the data. These include, among others, the fact that the most popular music at any time is usually the newest music; that more than 34% of Spotify users are under the age of 35; that Spotify streaming data is very narrow relative to Lunney’s broad inquiry; that some of the best niche music to emerge in the 1990s might be accessed by fans via other media; and that the concept “better” is far too subjective to simply sweep into the bucket of contemporary popularity and call it evidence.

For instance, Lunney’s Spotify data reveal a noticeable peak in the mid 1980s. If he asserts that the adjacent dip in the 1990s is literally caused by a corresponding rise in revenue for that decade, is it truly reasonable to assume that a corresponding “dearth” in revenue is the most rational explanation for the popularity of 80s music on Spotify today?

Or does this peak simply reveal that the next largest demographic of Spotify users is my generation, who grew up on 80s music? Or perhaps it’s explained by the fact that a lot of our kids also like 80s music because we’ve exposed them to it? Or might it have something to do with fact that a lot of new musical works are drawing inspiration from 80s sounds right now?  What happens to Lunney’s theory if 90s music becomes more popular in five years because trends are cyclical?

I don’t know these answers, of course, but because Lunney is measuring contemporary music taste (and only on Spotify), his attempt to explain current trends by virtue of previous years’ revenue alone rings a little hollow as an economic analysis, to say nothing of citing his findings as proof of copyright’s worthlessness.

“It is no coincidence,” Lunney writes, “that the most prolific artists in the study, the Beatles and Taylor Swift, had their first 100 hits in the low revenue years of 1964 and 2006, respectively.” It isn’t a coincidence? How does Lunney know this without accounting for, I don’t know, about a thousand other variables? More to the point, how does he sincerely invoke the Beatles—the Beatles!—in a paper which asserts that as income increases, artistic output decreases?  What does the overall industry revenue of 1964 have to do with the fact that two years later, the Beatles heard Pet Sounds and then produced Sgt. Pepper’s in 1967, which went on to sell over 30 million copies?

Maybe Lunney means some other Beatles and not the guys who started out playing cover songs and dance music in clubs then, when they earned real money, produced some of the most revolutionary sound recordings of all time. Those Beatles, Lunney would argue, decreased their output as they attained wealth from album sales. McCartney and Starr are still making music. And does anyone seriously doubt that Harrison, and especially Lennon, would still be writing and recording, if they were alive?

Little To Do With Copyright

Most importantly, even if Lunney can support his theory that lower revenue periods produce “more and better” music, he is fundamentally incorrect to associate those findings with the sound recording copyright passed in the U.S. in 1972. Lunney states, “For the recording industry over the last fifty years, when copyright protection was strong and effective, it forced consumers to pay more for music.”

That is simply a false statement. Because other than comparisons to outright piracy, the sound recording right has never had much to do with retail prices for recorded music. Prices of albums, and then CDs, rose along with the price of other consumer goods, and whatever cultural excesses one might ascribe to the recording industry of the 1990s was also true of business in general in that decade. Greed was evident in every sector.

But the sound recording right itself is largely a B2B protection, implicated when one artist samples a recording made by another artist; when a sound recording is synced to a motion picture or TV show; or when a sound recording is publicly performed via certain digital platforms. The sound recording right has never played much of a role in consumer sales of music for the simple fact that consumers had neither practical alternatives to—nor major complaints about—purchasing physical copies of albums.

Even in the digital market, the sound recording protection underlies a limited set of exclusive rights that remain largely a matter of licensing among business entities and rightholders, and these have even less to do with consumer “prices,” which now range between zero and about $120/year for access to 25-million tracks on Spotify (if we’re sticking to Lunney’s limited data).

Finally, it must be noted that Lunney has focused all of his attention—worthy or not—on the music industry and the sound recording copyright post 1972, and this is a rather slim platform from which to declare “copyright is dead.” Surely, Professor Lunney is aware that copyright encompasses far more than sound recordings and that perhaps his diagnosis of the whole body of law is at least premature, if not outright quackery. I suspect creators will insist upon a second opinion.

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