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The MTP Interview: An Inconvenient Truth: Songwriters Guild President Rick Carnes talks about the effect of piracy on American songwriters

March 10, 2012 5 comments
[Ed: This post originally appeared on MTP on January 30, 2009–how little has changed

American songwriters are one of our greatest sources of culture as well as important contributors to America’s “soft power“–our ability to win hearts and minds around the world by attraction and not by force. As Professor Joseph Nye would say “Lennon trumped Lenin.” (See Center for Strategic & International Studies Smart Powerfavored by the Obama Administration in the “change” direction for U.S. foreign policy.)But Internet analysts, self-appointed futurists as well as self-annointed consumer advocates almost always misunderstand the role of songwriters and the negative effects that rampant piracy has had on them. People who just write songs don’t sell t-shirts, don’t play shows, don’t have all the other income streams available to them that the EFFluviati point to as subsititute revenues for the cruel theft of labor value by companies like Kazaa, Morpheus, Limewire and the Pirate Bay.You hear a lot of talk about “follow on” artists or “remix culture”? Songwriters are the ones who are most often “followed upon” and “remixed out of culture”. And as noted in this interview, there are fewer and fewer original professional songwriters around every year.Rick Carnes is the President of the Songwriters Guild of America, and is a tireless advocate for American songwriters on Captiol Hill. He lives in Nashville, the songwriting capitol of the world.

[Interview for MTP by Chris Castle]

MTP: There is a popular image of a songwriter sitting in front of a piano in a little cubicle at the Brill Building or Music Row and grinding out the hits.What kind of business relationships do songwriters have today?

Carnes: Most songwriters today are independent operators. Music piracy was the death knell for the day of music publishers having staffs of songwriters. The Brill Building is still there but the last time I visited it was to talk to the folks at Saturday Night Live. There wasn’t a songwriter in sight. Business relationships now are with lawyers and managers. They put together the deals and venture capitalists put up the money. The deals are done to get
the next big recording artist signed to a label and then everyone gets a piece of the action in some 360 deal.Used to be you found a great singer then you looked for a great song.

Now you find a great deal maker then look for someone with deep pockets.

MTP: Are there more or fewer songwriters working today than there were 10 years ago?If there’s a change, what forces in the business are causing that change?

Carnes: The days of music publishers who have large staffs of professional songwriters seem to be over. Music publishers used to have both established writers and their ‘farm team’ of new talent. Now they have neither. The people they sign today (if any at all) are either working recording artists or ‘future’ recording artists. The days of the ‘stand alone’ songwriter appear to be over.

There are multiple causes for this situation but most of the damage was wrought by two specific problems. The first being that the internet has turned into a Cyber-Somalia.

Professional songwriters used to live on advances from their music publisher. These advances were to be recouped from record sales only (“mechanicals” is the industry term for these revenues). Music piracy killed record sales so that made it impossible for music publishers to recoup the advances they paid songwriters so they stopped signing writers and let go of the ones they had when their contracts ran out.For example, the music publisher I was writing for in 1998 had twelve great songwriters on staff. By 2008 they had no songwriters on staff. For the math impaired that is a reduction of 100%.

The second major problem was/is a practice by the record labels of putting “controlled composition” clauses in their artists recording contracts. For the non-lawyers reading this,
these clauses are a very complicated system established by the record labels to insure that they don’t have to pay the full statutory rate imposed by the US Copyright office for the songs recorded by the artist that the artist either writes or “controls”. [Editor’s note: this includes songs co-written with a producer or other writer who is not the artist or a member of a group artist. It started right about the time that another SGA member, Hoyt Axton, helped to spearhead indexing the mechanical royalty rate to the Consumer Price Index in 1976.]

Once an artist signs a recording contract containing one of these clauses (and since all the major labels have them they have little choice) the [beginning] artist will receive, at most, 75% of the statutory rate for recording any song they write or co-write. It is the co-writing that causes problems for the professional songwriters. The record labels, because they can pay a lesser rate for any song written or co-written by the recording artist, insist that the artists now write or co-write all their songs. This has lead to a tremendous drop in the number of professional songwriters and, in most cases, the quality of the songs. The public is constantly complaining about having to pay US$12 to US$18 dollars for an album with only one or two goods songs on it. You can trace the cause of this problem back to the early eighties when all the record labels began implementing control compositions clauses in their contracts. Since then the norm on an album is one or two professionally written (or co-written) songs and a lot of filler songs that the artist wrotein order to satisfy the record label’s demand for cheap music.

MTP: Tell me about what you do at the Songwriters Guild and the untold riches you are being paid for the job?

Carnes: I am President of the Songwriters Guild of America and if I am supposed to be getting “untold riches” someone forgot to tell me!The mission statement of the SGA is two words “Protect Songwriters”. That lack of specificity has forced me to show up in all kinds of places I never thought I would be! I was the lead witness in the latest Copyright Rate Board hearing. I have testified on behalf of songwriters in both the Senate and the House of Representatives on many issues concerning song writers rights, and I have spent the last ten years flying all over the country talking to people about the harm that is being done to American music by the widespread theft of songs on the internet by a mob of anonymous looters.

MTP: What is the most common question you get from your membership?

Carnes: How do I get a song cut by Beyonce?

MTP: What are your top three legislative issues for this Congress?

Carnes: The performance right in an Audio Visual download;

Controlled Compositions;

Fighting Music Piracy (as always)

(If I could add a fourth it would be a ‘bail-out’ for all the songwriters who lost their jobsbecause their intellectual property was not protected by the US Government on the Iternet)

MTP: Who are you listening to at the moment, and what new music interests you the most?

Carnes: Luca Mundaca. A fabulous new Brazilian jazz artist who plays great guitar, sings like an angel, and writes amazing melodies. I have no idea what she is singing about since I don’t speak Portuguese. But the songs knock me out anyway. That’s what I call great songwriting.

MTP: Where do you think that songwriters are going to end up in the next 5-10 years?Meaning what role do you think they have in the music business?

Carnes:Songwriters were the number one loser of income in the US economy in 2004 (Music piracy taking its toll). So we are used to tough times. I hope to see a bottom form somewhere in the steep drop in record sales and a rebound sometime in the next ten years. If that doesn’t happen I guess we will all end up sleeping in the subway!

The real role of songwriters in the music business is to add meaning to people’s lives.

That is not a job you want to leave to amateurs. It is a job for professionals.

MTP: Do you find that members of Congress do not have a clear idea about the role of songwriters as a general rule?

Carnes: I think they understand the role of songwriters better than the typical major record label executive. At least the Members I have talked to understand that the Constitution includes provisions for royalties for creators because without them the quality of life suffers. While it is true that the Copyright laws are very difficult to understand in great detail, the general principle that creators have a right to control the copying of their work is understood by all except the most radical of the ‘Free Culture’ advocates. There are a couple of people on the Hill who think that ‘Fair Use’ extends to sharing a copyrighted song with the entire world for free.

MTP: Who do you view as the greatest commercial opponents of songwriters?

Carnes: The Major record labels are our biggest ‘commercial’ opponents. They have wreaked havoc on the songwriting community by forcing controlled composition clauses into their artist recording contracts. After them it would be all those companies out there that want to use our songs to sell something else (like advertising) and not pay us a dime. Anytime you go on a website that is offering free music they have no license to use and selling your visits to that site to advertisers you are looking at one of the ‘greatest commercial opponent of songwriters’. I wish I could offer you a list but it would be too long to type in one sitting. Besides,didn’t Richard Nixon get in trouble for having an Enemies List?

I hear a lot of talk from Google and the big online companies about their “partnerships” with the “music industry”.I find more often than not when you drill down on what that means is deals with major labels.

MTP: Do you ever have any of these companies come to you to ask you what you think or try to make a deal with your members?

Carnes: Yes we have had companies come to us about deals. But that is because our catalog administration program has some hit songs that you have to have in order to compete
in the market. So in terms of whether these services are ‘reaching out’ to smaller labels
and music publishers the SGA is not a good gauge.

MTP: If you had to rank the top five online companies as the “best” meaning most friendly to songwriters, who would they be and why?

Carnes: Songwritersguild.com would be number one *grin* (a shout out here to our webmaster)

After that I am not a fan of any particular online company since I have had to spend the last three years of my life fighting them in rate court to try to get a decent interactive streaming rate. (Which we finally won!) But I am a subscriber to Rhapsody and I check out MySpace a lot since I have so many friends that are artists and in bands. MySpace, at least, has exposed a lot of indie music.

MTP: And the five “worst”?

Carnes: Whoever the top 5 p2p sites are today. And just for the record, I am not a fan of Google because I believe their search algorithm reduces all art to the lowest common denominator. That’s a real culture-killer if I ever saw one.

MTP: Anti-copyright organizations often try to tell musicians and the music industry that they have their eye on the wrong ball, that they can offset the decline in CD sales by selling another T-shirt to fans who it would be easy to find because they were all on email.

Carnes: Songwriters don’t sell T-shirts. We’re too ugly and we dress funny. Songwriter fan clubs meet in phone booths so the email lists are too small to monetize effectively.

But seriously folks, songwriters don’t sell concert tickets, or ancillary merchandise. We make our money on record sales and radio airplay. Or, we USED to make our money on record sales. Illegal downloading ended that. Now we are looking for new jobs.

The most infuriating thing about being lectured to by anti-copyright groups about how songwriters need to get a new ‘business plan’ is who gave them the right to tell us how to make a living? Who are they to say we shouldn’t fight to defend our rights? In truth, I find their suggestions are unbelievably arrogant and self-serving.

MTP: Do you find that there are a lot of self-appointed music industry experts who have never sold a record?I’m thinking of a specific event at which I was sneered at by Eben Moglun at Future of Music Policy Summit II in 2001 for questioning the affect of piracy on independent artists and I was told more or less that I was a primitive thinker because I didn’t see that declines in CD sales would be made up by merch.I’m also thinking of a panel I was on with Corynne McSherry of the EFF at which she wedged the audience by asking the crowd if “Silicon Valley” was going to let “Hollywood” push it around. Thankfully the “Silicon Valley” fans and the “Hollywood” fans hadn’t been tailgaiting or painting themselves funny colors. [Editor’s note: And if “Silicon Valley” wouldn’t listen to “Hollywood,” would “they” listen to musicians in Bollywood, Miami, Seattle, Austin, New Orleans, London, Harlem, in no particular order. Do you have similar experiences?

Carnes: There do seem to be a lot of people trying to make the rules who never played the game.

I have had some interesting back and forth on some panels but I must say that the most interesting panel I have ever witnessed was at the Leadership Music Digital Summit a couple of years back. The subject was how the music biz could ‘compete with free’.

For some reason there was an actual economist on the panel who was totally silent for the entire panel until the very last when he spoke up and said that anyone who thinks there is a business model that competes with free is out of his mind. In any Capitalist society consumers are taught from cradle to grave to always get the best ‘deal’ they can, and NO DEAL beats free. I mention his comment only because it was the first time that I ever saw these ‘self-appointed music industry experts’ ever called on any of their malarkey by a real expert and the discussion was concluded in one sentence.

Castle: If you had to pick the most important issue of 2009 for songwriters, could you and if you could, what would it be?

Carnes: Same as every year for the last 10….Illegal downloading.If I may quote a real economist, “Nothing competes with free”.

Add the question I missed:Is Rock and Roll dead?

Yes, Rock and Roll is dead. The genre’ was played out by the mid-seventies but it has survived in a zombie-like fashion for thirty years past its expiration date.

Part of the charm of Rock music is that practically anyone can play it.It can be written by amateurs and performed by teenagers without those difficult and expensive years of training that other forms of music require. Unfortunately that also makes it the perfect ‘corporate’ music. You can get kids who don’t need money to support families or pay house notes to sign contracts that no thinking adult would sign. This allows a record label to exploit ‘this year’s model’ for all they are worth until they reach the end of their contract and want to renegotiate for decent terms. Then they simply replace them with another teen idol. The simplicity of the music has allowed the major labels to treat recording artists like ‘temp workers’.

Hopefully with the decline and fall of the major label system we might finally get to see where the music really wants to go once it is released from this corporate death-grip.

[Editors note: There’s still great music being made every day, some of it is listed in our “New Music Weekend” recommendations posted (pretty much) every Friday and reposted the following Monday on MTP and on Twitter.]

Strange Similarities between ACLU and EFF letter and Center for Democracy and Technology Memo on COICA

November 6, 2010 Comments off

Artist Rights Are Human Rights

As we noted in “No Money For Old Pirates: Working People Unite In Support for Sens. Hatch and Leahy S.3804”, the headline for 2010 is the unification of working people and their unions in fighting piracy. The Songwriters Guild of America, the American Association of Independent Music, and the AFL-CIO, AFTRA, DGA, SAG, IATSE and the AFM all have stepped forward and brought their advocacy to bear on legislation that protects workers rights.

This should not come as a surprise—artist rights are widely recognized as human rights. In Artist Rights are Human Rights we said:“These human rights are transcendent and timeless expressions of fundamental entitlements of humanity that safeguards the personal link between authors and their creations as well as their basic material interests. These rights are personal to the authors and artists concerned and are arguably of broader scope than the rights that can be enforced under particular national intellectual property regimes.

The human rights of authors are recognized in a multitude of international agreements, including article 27, paragraph 2, of the Universal Declaration of Human Rights: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”; article 13, paragraph 2, of the American Declaration of the Rights and Duties of Man of 1948; article 14, paragraph 1 (c), of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988; and article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms of 1952.

These precedents clearly enunciate the goals of the international community. The Covenant is closely linked with the right to own property (recognized in article 17 of the Universal Declaration of Human Rights) and workers’ rights to adequate remuneration. The “material interests” protected by the Covenant are protected under the right to an adequate standard of living.These moral rights include the right of authors to be recognized as creators of their works and to object to any modification of their works that would be “prejudicial to their honor and reputation.” The protected interests of artists include the right to just remuneration for their labor as well as the moral right to the “intrinsically personal and durable link” between creators and their creations that survives even after the passing of the work into the public domain.“

The ACLU/EFF Letter

Given the inextricable combination of human rights and artist rights, it is surprising to see a letter to Senators Leahy and Sessions opposing the “Combating Online Infringement and Counterfeits Act” from self-described “human rights organizations.” The letter passes off as mere “frustration” the massive violations of artists’ human rights occurring routinely online every second of every day. Many if not most of this infringement is either initiated or facilitated by websites based in the US—some of which are public companies. (Signers are American Civil Liberties Union, Center for Democracy & Technology, Electronic Frontier Foundation, Freedom House, Human Rights First, Human Rights Watch, Rebecca MacKinnon, Reporters Sans Frontières, World Press Freedom Committee.)

Let’s remember a provision that is at the heart of the Combating Online Infringement and Counterfeits Act”—seizing advertising accounts from adservers that pay money to pirates. Now who might be concerned about this common sense prohibition? Someone who sells the advertising? Someone who uses their dominance in search to drive traffic to pirate websites on which they sell advertising at higher prices based on the traffic to the pirate website? Maybe…Google?

What Would Google Do?

When you look at the list of signers on the “human rights” letter opposing the Combating Online Infringement and Counterfeits Act, one name that jumps out is the Center for Democracy and Technology. What do we know about them?

[UPDATE:  We know that the ACLU got $700,000 from Google in the controversial Google Buzz settlement, and that Chris Calabrese, formerly with ACLU joined the CDT in October 2014.]

We know that Alan Davidson formerly headed the Center’s “digital copyright project” (which is more likely “no copyright for digital project”) and we know that Alan Davidson’s name was mentioned in the rather bizarre communications between Google’s former worldwide head of lobbying (now White House tech advisor) and Google executives that surfaced under a FOIA request. (See Grande Prosecutor Macchiato) Why were those communications of interest to Congressman Issa? Because Alan Davidson, formerly of the Center, now is Director of U.S. Public Policy, Americas for Google, Inc., among other reasons. And the Google connection is present with other signers of the letter.

And who runs the Center? Jerry Berman, formerly a director of the Electronic Frontier Foundation (a signer) and former legislative director of the ACLU (a signer).

There are certainly some bona fide human rights organizations on the list whose credentials cannot be questioned, but you have to wonder how much time these groups spend on artist rights issues compared to humanitarian good works—and who did they trust to draft the letter to which they signed their good names.

These humanitarians likely never thought—as is my hunch—that they are being manipulated by Google for crass financial reasons and are not being given the entire story.

The argument is very contingent and therefore—weak. “In its essence, the bill would enshrine in US law a legal process that would force Internet service providers (ISPs) to block certain communications based on content, oblige registry operators to lock domains for the entire world, and create an extrajudicial blacklist of suspected content—setting a precedent that we believe would reverberate around the globe.”

In short—don’t pass a law in the US that could end up “reverberating” in countries without the due process safeguards enjoyed in the US. Now where have we seen that lately—ah yes, in the YouTube case. Google obtained a flawed ruling in their favor in the US and they are busily trying to make it the law in other countries—Russia for example, before it is overturned on appeal. (Even now, the sloppy coverage in the Financial Times of the IPO of Mail.ru on the London exchange ignores the fact that the YouTube case is on appeal and misleads investors into believing that the issues are resolved–shades of the financial press in the Dot Bomb bubble. “[A] familiar battle which was solved in many western markets….” Simply false.)

One thing you can be pretty confident in is that Google is not going to be using its massive lobbying dominance to “reverberate” the Combating Online Infringement and Counterfeits Act in other countries.

We have been hearing much the same from a number of sources ever since Senators Leahy and Hatch introduced the legislation—The Usual Suspects, including Michael Geist, EFF, and others who are consistently on the opposite side from creators. So where do these ideas come from?

The Voice of the Prime Mover

Hard to say exactly where these ideas originate, but there is a very interesting memo dated September 28, 2010 from the Center that spells out all of these ideas in handy talking points. If you compare the Center’s memo to the ACLU letter, there are some interesting language similarities that belie its sanctimony. Compare these excerpts from the Center for Democracy and Technology’s memo (September 28) and the ACLU letter (dated October 26):

The Center’s Memo: “If many other countries adopt S. 3804ʼs approach—and there is little doubt that many would—it will worsen the balkanization of the Internet, undermining the right to freedom of expression and association and threatening the potential of the Internet as a powerful tool for promoting human rights.”

ACLU Letter: “If many other countries adopt COICA’s approach—and there is little doubt that they will—it will worsen the balkanization of the Internet, where the information any individual can access will depend entirely on where that individual sits.”

That’s pretty close. How about this one:

The Center: “S. 3804 also would drive many states, including liberal democracies, to adopt similar policies directed at U.S. content, taking it down worldwide. The scope of protection provided by the First Amendment remains the most expansive in the world, and speech protected in the United States remains proscribable in many other democratic countries (for example, hate speech in France). Local access to such speech remains a frustration for governments in those countries, and they would welcome a U.S.-based precedent to justify blocking it.”

ACLU Letter: “COICA could also lead many states, including liberal democracies, to adopt similar policies directed at US content, taking it down worldwide. Content that is fully protected under the First Amendment Remains proscribable in other countries, such as hate speech in France and Germany, and local access to such speech remains a frustration for governments in those countries.”

Proscribable, I think. (Of course that idea is bunk at least as applied to US intellectual property (the point of the bill) because everyone wants to rip us off all the live long day, and if they mean newspapers, Google does a pretty good job of ripping them off already.) Here’s another:

The Center: “In countries where rule of law is weak or entirely absent, meanwhile, S. 3804ʼs approach opens the door to serious misuse. As Microsoftʼs recent experiences in Russia have revealed, governments can exploit copyright laws as a pretext for suppression of political speech. Further, once the United States sends the green light, the use of domain locking or ISP domain blocking to silence other kinds of content considered unlawful in a given country—from criticism of the monarchy in Thailand to any speech that “harms the interests of the nation” in China—will surely spread, impacting bloggers, citizen journalists, human rights advocates and ordinary users everywhere.“

ACLU Letter: “COICA’s approach could be misused in countries where the rule of law is weak or entirely absent. As Microsoft’s recent experiences in Russia have revealed, governments can exploit copyright laws as a pretext for suppression of political speech in other parts of the world. Further, once the US sends the green light, the use of domain locking or ISP domain blocking to silence other kinds of content considered unlawful in a given country—from criticism of the monarchy in Thailand to any speech that “harms the interests of the nation” in China—could metastasize, impacting bloggers, citizen journalists, democracy movements, human rights advocates, and ordinary users all over the world.”

That one is practically word for word. So I think the argument that the Center (or its benefactors?) are making is that the US can’t protect its artists and innovators from massive online theft, can’t protect the public from mislabled drugs, and has to permit public companies to sell advertising on pirate websites because the bill might potentially repress some unknown person in some other country. This takes victimology to a whole new level.

I invite you to compare the two remixed documents and find other examples of simultaneous creation, or, to paraphrase Lessig, “hybrid thought”.

Artists Must Bend

What is astonishing to me is that the ACLU—an organization that always has their hand out to the entertainment industry—is yet again siding against us on a matter of existential importance to us. I’m sure they have an excuse, and that there’s some aspect of their position that is so subtle and so vitally important to Life As We Know It that I’m just not clever enough to spot it.

Now I know that the ACLU has a bunch of smart people with Ivy League diplomas, and I’m just a boy from the country and I’m not as smart as these city fellers. But if there’s one thing I know when I see it, it’s a duck. And this duck is quacking.

I feel sorry for the humanitarian groups that got themselves involved with these people—they probably didn’t know better. I can’t say the same about the ACLU. I think they know exactly what they are doing.

It should come as no surprise that every time you deal with the consumer electronics industry and their fellows, the answer always is that artists must bend to them. That’s got to change.

Show Some Respect for the Congress

So aside from the fact that these great humanitarians apparently don’t read the UN human rights documents that protect artists and can’t be bothered to contribute some original thought, here is the most insulting part of this letter: “we sympathize with the underlying goals of S. 3804” and “we sympathize with frustration over copyright enforcement in a global environment.”

We don’t need your “sympathy” and Vice President Biden, Senators Leahy and Hatch, Attorney General Holder, Assistant Secretary Morton and IPEC Espinel are all way beyond “frustration”.

And next time—show some respect for the Congress and write your own damn letter. Don’t just sign your name to some K Street claptrap.

At least do artists the courtesy of spending enough time on the issue to put some words together on your own. God knows we do.

See Also: Artist Rights are Human Rights

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