Danny's Weblog

"Intellectual Property" -- paint "A Starry Night" again, man

Joni Mitchell, the famous singer-songwriter, made a live album "Miles of Aisles". On one track we hear the audience calling out to her in the gap between songs, hoping to hear their old favorites. Joni addresses them directly:

That's one thing that's always, like, been a difference between, like, the performing arts, and being a painter, you know. A painter does a painting, and he paints it, and that's it, you know. He has the joy of creating it, it hangs on a wall, and somebody buys it, and maybe somebody buys it again, or maybe nobody buys it and it sits up in a loft somewhere until he dies. But he never, you know, nobody ever, nobody ever said to Van Gogh, 'Paint a Starry Night again, man!' You know? He painted it and that was it.

I have attended live performances by any musicians quite seldom, because when I do so it turns out that I have grown used to the recorded version of the songs, and the live performance seems like an inferior copy. Her "The Last Time I Saw Richard" is better on "Blue" than on "Miles of Aisles": www.lyricsfreak.com [http://www.lyricsfreak.com/j/joni+mitchell/the+last+time+i+saw+richard_20075265.html]

Joni Mitchell has had a long career, and has frequently talked about how irritating it is that her fans prefer her older work to her current work. I have to say I feel the same way; "Hissing of Summer Lawns" is not as good as "Blue" and "Court and Spark", etc. Apparently, she would prefer to produce new music which does not have to compete against her own older music. Of course, she is one of the most admired and respected figures in popular music, so her new music continues to be marketed. (I wonder if Joni is the singer Philip K. Dick refers to without naming her in several of his stories.)

The position of an unknown musician who's trying to find an audience is rather more difficult. An ex-girlfriend of mine many years ago – let's call her Renate – was a passionate and accomplished singer-songwriter. She was living in NYC and doing occasional gigs on Bleeker St. One weekend I was staying with her at her ex-boyfriend's house in Connecticut and helped her record several songs as a demo. One of them, "For the Sake of Believing", in my opinion is as good as anything Joni Mitchell ever sang. It was just her, and her guitar, and her beautiful voice, in a small back room, and me with her ex's Dolby Stereo cassette deck and her semi-pro mikes. They were basically single takes.

Renate wisely dumped me shortly after. She continued to get gigs, but never got anywhere in the music business. I saw her at an sf convention 13 years later when she was promoting her novel, and heard she had given up on her music.

Renate had had to compete with Joni just as Joni did. But Joni's recordings had been made with top session musicians, the best equipment, and skilled technicians at the peak of their careers, assembled by producers with years of experience. And then they had been heavily promoted, with millions of dollars going into making sure that everyone who might enjoy her music would be exposed to it. And then all of this had been amplified by her subsequent career. Anyone who might have considered promoting Renate to compete with Joni would have had to match that sort of investment.

A few years after Renate dumped me I was dating a music company owner – let's call her Sally-Anne – and I asked her to listen to the original tape I'd made of Renate. When Sally-Anne (also wisely) dumped me and I was leaving her house, I happened to see the tape in a pile with other tapes. I took it because I was sure Sally-Anne would never listen to it, and I didn't want to lose the original recording. But I still wonder if I should have left it.

That's the real cost of music copyrights. They make it possible to build a vast business out of pouring investment into a tiny few performers, while destroying the lives of everyone else. Without copyrights, there would be no incentive to invest in someone's career. Instead of going to watch Joni glumly reproducing her old favorites, we would listen to ten thousand performers who were close to her level, or even better, performing songs we had never heard before.

It's also the cost of movie copyrights. The requirements of the movie *business*, which depends on mass promotion, result in movies aimed at the crudest human drives. I've only attended a pro baseball game once (at Fenway Park), and my clearest memory of it is that the bulk of the spectators were very visibly mentally subnormal, in the 60 to 80 range, I suppose. But the drives of *that* group are what the "summer blockbuster" has to aim at. The "Die Hard" movies are obviously crude revenge fantasies with resentments and explosions, made by skilled and thoughtful people who might have made something like Dr Zhivago – or Dr Strangelove – with that part of their lives, but instead they polish and polish until even I find these movies watchable. Of course, they would not have had so much money to throw around in the absence of copyright, but why exactly is Bruce Willis, for instance, worth tens of millions of dollars per picture? Mainly because of his presence in similar movies which were also heavily promoted. There are thousands, perhaps millions, of actors who could do as well or better.

In the absence of copyrights, nobody would invest in movies, *unless* they just wanted the movie to exist. The internet makes it possible for small groups to produce very tightly focused work. A good example is the anime subtitling community: en.wikipedia.org [http://en.wikipedia.org/wiki/Fansub]

The issue of software copyrights and patents is even clearer. In many cases, patents have been granted on algorithms which are basically obvious and which require no great or distinctive effort to create, unlike music, or movies. Amazon's "one-click" patent springs to mind. A Slashdot discussion of such a case: yro.slashdot.org [http://yro.slashdot.org/yro/08/09/15/2223259.shtml]

But the real problem is even worse, ie network effects: en.wikipedia.org [http://en.wikipedia.org/wiki/Network_effect]

Once you establish a monopoly, you can use the network effect to build a wider and wider monopoly position. That's certainly what happened with Microsoft; by controlling Windows, MS was able to destroy Lotus and Word Perfect, and with the cash from Windows and Office, MS was able to flood the market with "free" Internet Explorer, destroying Netscape. There's no equivalent to network effects in the entertainment media, although vertical integration is also bad, especially combined with technical standards like widescreen or video cassettes.

In the absence of copyright, we would lose some work. For instance, one of my favorite musicians is J. J. Cale: en.wikipedia.org [http://en.wikipedia.org/wiki/J_J_Cale]

As I said, I don't usually like to attend live performances. But I thought J. J. Cale's music was particularly likely to work well in performance: it sounds underproduced, with audible master tape noise and rumble on some tracks. I went to see him play at a lesbian bar near MIT about ten years ago. But he sounded terrible: the songs that had sounded relaxed and warm and genuine in his recordings sounded sloppy and meandering in his live performance.

Maybe he just had an off day. But it's possible that he's simply not very good (or routinely wasted), and he can only build himself up to a good performance once or twice a year. Without income from recordings, he probably wouldn't survive against his less famous competition. Without music copyrights, we might lose his music. But we would gain the music of a thousand others.

And on TV, maybe we would lose shows aimed at attracting the maximum number of gently-anaesthetized viewers to commercials and designed to deliver hidden messages about how weak and helpless individuals are, and gain shows that people created because they wanted them to exist.

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