Up Selling Selling Out

January 12, 2010

Bono made a spot of noise in a recent New York Times op-ed piece where he advocated stricter intellectual property controls over digital media. Much of the immediate reaction branded him as a new Lars Ulrich, the Metallica drummer who brought suit against Napster for promoting the illegal downloading of music, but Krist Novoselic, the bassist from Nirvana, wrote a response in the Seattle Weekly supporting Bono’s points.

Essentially, Bono and Novoselic argue that piracy and/or the inability to realize high return on content hamper artistic expression rather than promote it because creators do not earn enough money to be able to focus on their work or invest in producing a higher quality product. This is similar to an argument put forth on a recent WNYC Soundcheck (“Smackdown: Music in Commercials”) where Mark Caro and Eric Deggans debated the use of music in advertising.

One side of the argument would claim that licensing music for advertising is the dreaded “selling out” and detracts from the artistry of the music. The other side claims music has always been a commercial venture, artists need to make money to live and cannot subsist on record sales, and licensed songs expose the music to people who may not have heard it otherwise. Of course, this last point for increased exposure is also one those advocating looser intellectual property controls use.

This is one of those unending circular arguments that will likely never achieve resolution — there are too many emotional and monetary issues wrapped up in it for anybody to concede anything. That’s all fine and good for scholarly debates, but as archivists well know, trying to muck through these issues in real world scenarios is not all that pleasant. We typically find ourselves stuck in the middle of that mire, pulled by our responsibility to provide access to as many people as possible and our responsibility to legal and ethical concerns. Anyone who has ever done a rights assessment of an audiovisual work — especially one created pre-Internet distribution — quickly begins to wish there were no copyright laws. But that review is a necessary component of enabling access. The problem is not that copyright exists, but rather that as currently written the laws are too arcane for the laity to interpret and follow.

As you can see from my own circular spin on the topic, it’s not an issue to be solved in this forum. Perhaps, as with quicksand, the solution is to relax and float to the top rather than struggle and sink further. In other words, there may be ways to use the problems we encounter with copyright to promote the difficulties archives run into. I can’t count the number of times I’ve heard or read, “Hey, why isn’t that on DVD/CD/Etc. yet?” with the suggestion being that whoever owns the material is stupid, lazy, and/or greedy for not releasing the work for consumption by others. Excluding Orphan works, the reasons are often related to issues of cost, a large chunk of which is typically the price of obtaining copyright clearances for all relevant parties. It took decades for Killer of Sheep, one of the great American films, to be commercially released mainly because of the cost of music licensing. And famously, the great Civil Rights documentary Eyes on the Prize has been in and out of limbo for years because the original licensing deals ended and have not been able to be fully renewed. The problem isn’t always that one single clearance is too expensive; multiple smaller licenses will add up or it can be difficult to even figure out who or where the rights holder is.

As we have seen with Congress addressing the issue of Orphans, it takes years of advocacy and work to effect meaningful change in the law. If we want change rather than evasion or stagnation we need to make it a point of discussion with the powers that be as well as the general public. Getting people to admit there is a problem is the first step to recovery. So next time your cousin starts complaining about how The Six Million Dollar Man isn’t available on DVD, explain how much both would cost in today’s dollars (Steve Austin’s upgrades and the home video licensing) and create some wider exposure for our work.

— Joshua Ranger