Eye Cues: “Free” Ain’t Free For Everybody

Today’s rant is about copyright, particularly the bright idea that copyright laws need to be “reformed” (otherwise known as “weakened”) or abolished outright.

There are numerous, well-funded organizations and influential individuals out there who squawk ad-nauseum about “copyright reform,” which in their minds would be accomplished by restricting the length and effectiveness of current copyright law. This is because – in their opinion – allowing people to freely “share” copyrighted content in this “digital age” will somehow fuel innovation and progress. (By the way, we can discuss another time the irony of so-called “non-profit” organizations that pay no taxes and university academics who essentially have lifetime employment telling those who actually create for a living that they should not have their work protected by copyright or receive fair compensation for its use.)Eye Cues Sq

One proponent of such ideas is Lawrence Lessig – Harvard professor, self-styled political reformer and failed presidential candidate – who started the organization Creative Commons with the idea that current, “analog” copyright laws no longer make sense in a digital world and therefore need to be reformed. However, instead of proposing that we update copyright laws to ensure that those who use and distribute copyrighted works digitally get permission from (and give compensation to) the creators of those works, Professor Lessig believes that copyright should be limited to policing only “commercial” exploitations of those works, while exempting so-called “non-commercial” exploitations from any regulation.

Now, such an argument is simply amazing to me, particularly in light of the fact that there are individuals on YouTube right now who make millions of dollars from their “non-commercial” videos. At what point does some Swedish dude who makes $12 million a year from posting videos of himself playing video games – which are themselves copyrighted works that use other (licensed) copyrighted materials like music in them – go from being a “non-commercial” entity to a “commercial” one? Ah, but such questions may not even matter to Mr. Lessig, since he appears to believe that “the kind of activity that copyright law is properly regulating” should not include “every time somebody wants to make a creative use of somebody else’s creativity.” So, essentially, according to Mr. Lessig, Felix Kjellberg (a/k/a “PewDiePie”) would be allowed to use those video games and whatever other copyrighted content is in them (all of which collectively cost millions of dollars to create, by the way) in his “creative” videos (which Mr. Kjellberg undoubtedly makes and publishes for next to nothing) free of any copyright regulation in a perfect world.

In the face of such rubbish, I felt that it is important to give you some idea of just what goes into producing a creative work to understand, in part, why it should be protected by copyright. For example, let’s use music – since, after all, that’s a big part of this website:money

“Song A” was just released by “Band Z” and is getting plenty of buzz online and off, and my friend just sent me a digital copy of it to check out – and own for free, since it’s a digital copy that will now reside forever on the drive of my computer, phone, watch, tablet or whatnot.

Now, for our purposes here, we’ll assume Band Z self-distributes their music, and that the publishing of “Song A” is administered by an indie publisher for, say, 20% of whatever money comes in on that side (i.e. from reproduction/distribution of the song, licensing its use in TV shows/commercials/films/video games/etc., and collection of performance income from ASCAP, BMI or SESAC in the USA). Band Z also has a lawyer/business manager, a personal manager and an accountant to handle their business.

So over the course of the next couple of months (which will likely be its total shelf life in this ADD world we live in), “Song A” blows up and starts getting heard all over the place: Band Z plays it on their current tour; they just played it on “The Tonight Show;” it’s in the hot new shoot-em-up videogame that just sold a million copies the day it was released; it’s being used in a Netflix series; it’s in a beer commercial; and it’s on iTunes, Spotify and Pandora. So obviously the band must be making tons of money on this song already from all these uses, right? Not exactly.

Buying “Song A” on iTunes as a single (since nobody buys whole albums anymore) would cost you around $1.29, of which the band and writers will receive a fraction (probably under to $0.50 when all is said and done) for themselves once everybody else (Apple, licensing agents, publisher[s], etc) takes their cut. And, as I’ve noted before, ain’t nobody getting rich on the pissant amounts being paid to artists by Spotify and Pandora

As far as the videogame is concerned, Band A would only have gotten a one-time flat fee for the right to use the song/recording in the game – as well as to use “Song A” to promote the game in pretty much every way imaginable forever. Nope, no per-unit royalties for videogames anymore, just one flat fee that they would be lucky to see reach more than $5-10K max.

Well, what about the Netflix show? That must’ve paid well, since Netflix has more money than god – or, at least, CBS, according to Wall Street (http://deadline.com/2015/04/netflix-worth-more-than-cbs-stock-price-1201411029/). Again, nope. A Netflix series (and most TV series) usually only pay a small flat fee – oftentimes as low as $5-10K – for all media in perpetuity buyout, since music budgets for all series – and particularly those on the internet – are usually miniscule.old-tv-set-clip-art-1500660

How about the beer commercial, then? That should pay big bucks, right? Probably not for an indie band like Band Z. Commercials used to pay well – even for indies – but now their music budgest have also been slashed, and they often air for just a few months on TV (where most of the $ comes from), with the rest of the license term being limited to internet and other “lesser” media like internet, screenings in movie theaters and in-store/“industrial” (trade shows, etc.), none of which pay squat. All in all, Band Z would be lucky to pull in maybe $50K for the commercial. Well, there you go! That’s some decent money! Well, take out the publisher’s admin fee and taxes, then split it between four band members for the recording and two writers for the publishing, and, well, nobody’s retiring on that.

On the flip side, how much do you think it cost to record “Song A” and get it out there to the masses? Well, let’s look at some of the things that went into making “Song A” in the first place:

  1. Music equipment – you can’t write/record/perform without it, and it ain’t cheap, so you can throw in an averge of a few thousand dollars there, depending on what you play (guitars and basses are generally on the cheaper side, drums and keyboards more expensive) and the amps, pedals and other supporting equipment you use. So let’s say, conservatively, that your rig is going to cost you around $5,000 to buy and maintain over the year it takes your band to put out this record.
  2. Rehearsal time – Unless you play in your garage, you probably need a studio to rehearse in. You could rent a space in a warehouse on a regular basis, or you can schedule rehearsals at a studio. Either way, you could be looking at something around $5,000-$7,500 for a year of rehearsal time.
  3. Recording and Mastering – A week or more for recording/mixing/mastering can easily run upwards of $7-10K.
  4. Duplication – Pressing up some fancy vinyl records and maybe (ha, ha) CD’s to sell at shows and online will likely run you another $5K or so just for 1,000 copies of each.
  5. Merch – T-shirts and whatever else you want to slap your band’s name on to sell at shows and online will also cost you, probably in the range of $5K just for 1,000 t-shirts, alone.
  6. Promotion – Getting that song on college radio (which still has some relevance in the world, at least those like KEXP, KCRW, WFUV and other “major” stations out there) and getting it in front of reviewers and other “tastemakers” online and otherwise takes a promoter, which can cost upwards of $3-5K per month.
  7. Touring – touring can cost an arm and a leg, from planning and booking shows, transportation, housing for the band (and crew, if you can afford it), and taking time off from whatever job(s) you have to make ends meet – and, of course, each venue/ticket retailer taking their cut(s) from whatever tickets you sell, you will be very lucky to break even on a tour. But you have to do it, since that’s one of the few ways you can get your music out there and make a little money in this business these days. Here’s a typical example of just how much “bank” there is to be made from doing a DIY tour as a band (which, probably, 90% of working bands do).
  8. Legal/Accounting/Management/Admin, etc. – Ah, yes, and let’s not forget that everyone who works for/with you to help put that record out and otherwise help you run your career also needs to get paid. So any scraps you have left over after all the costs above are tallied up will likely go to keeping those folks happy – and continuing to work for you.

On another note, I recently worked on an indie film handling clearance/licensing for music for the producers. They wound up using a track under a Creative Commons license – mainly because they could get it for fee. When I was working on the cue sheet, I went to find the performing rights society the composer was affiliated with. Lo and behold, he wasn’t with any of them. Now, sure, his belief in the fundamental right-ness of “sharing” his music for free with the world is one thing, but not even registering yourself with a PRO so you can at least get some money from the performance of your music is just plain dumb, IMO.

So for all of those out there who think that copyright needs to be “reformed” to make creative works available for free to the world, you might want to think about just how expensive “free” can actually be.

– E.C.

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