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Whose Music Is It Anyway?By Norman Lebrecht / October 10, 2002
Lawsuits over who owns music - and even silence - reveal the music biz at its most powerful. But using other people's tunes need not be theft....
Two seminal cases, both settled on the courtroom steps: smiles all round and lips firmly sealed. The only losers are those who love music and must continue paying for it through the nose. So, you wonder, what's new? What's new is that the two cases set consumers and creators militantly on the same side, against the music machine.
In New York last week the Big Five record companies struck a deal with the attorneys-general of 40 US states who were suing them for price-fixing. The Five - Sony, Warner, EMI, Vivendi-Universal and Bertelsmann - agreed to give five and a half million free CDs to schools and public libraries after being accused of setting mimimum CD prices at three major retailers, Tower, Walmart and Musicland.
The labels and stores also agreed to cough up $67.3m (£46m) to compensate US consumers and cover legal costs. No wrongdoing was admitted by the record industry, which also made clear that no reduction could be expected in the price of new CDs.
The cost of CDs has given rise to public concern since they were introduced 20 years ago at twice the price of LPs. It seemed odd that all new releases cost about the same across all labels, and that the price did not budge even when sales slumped and common sense might have dictated a fire-sale. What's more, the mark-up on a disc can be eight to ten times the cost of its production.
Anomalies like these have provoked parliamentary inquiries in Washington, London and Brussels, but never a full prosecution. Governments do not mess with the music biz. It is too big, too generous at election time and too influential on young minds for politicians to risk a coalition of gangsta rappers, country crooners and opera divas converging on their doorstep in cacophonous protest. The biz has always got away with it in the lobby. Now, the US prosecutors have backed off again in exchange for a stack of free discs.
The other settlement was equally blurred. Outside the High Court in London two weeks ago, the musical arranger Mike Batt paid the publishers Edition Peters a little over £100,000 for the use of a minute's silence in his EMI album, Classical Graffiti. Batt had jokily credited his blank track to 'Batt/Cage', an apparent tribute to the Californian iconoclast John Cage who in 1952 composed silence in his score 4'33", in which a pianist goes on stage and sits soundless for the prescribed duration.
Cage regarded 4'33" as his finest piece. 'I wanted my work to be free of my own likes and dislikes,' he said in a 1974 interview, '... to have led other people to feel that the sounds of the environment constitute a music which is more interesting than the work they would hear if they went into a concert hall.'
For all his pride in the piece, Cage maintained that his sole intervention was to alert listeners to ambient noise. His was a clear and humble statement of creative disownership. He raised no objection when younger composers built upon his breakthrough in 4'33" - notably when the German-based Hungarian Gyorgy Ligeti issued a concise version titled 0'00". Cage often raided other men's work, altering copyrighted texts by James Joyce in several scores. He would have been amused, nothing more, to see club DJs of the 21st century freely applying a technique he invented in 1938, when he began manipulating record turntables and sampling sounds. His was essentially a jackdaw's view of art.
That, however, was not an attitude shared by his publishers. Since Cage's death in 1992, Peters Edition have charged wild prices for his scores - 4'33" costs £5.95 for two pages - and treated his every utterance as potential revenue. The pursuit of Mike Batt was almost comic in its severity. Peters' pretensions should have been tested in court but Batt, apparently unwilling to risk high legal costs, coughed up in capitulation.
It is to 'protect' copyrights as nebulous as the sound of silence that the music biz is demanding new laws to extend copyrights and trap so-called pirates. An international conference in London last month, attended by the Culture Secretary Tessa Jowell, turned up the heat on governments to improve the policing of creative rights on the internet.
But the tide has begun to turn as a split widens between creators and corporate owners of musical rights. Over the past decade of electronic revolution, numerous celebrated artists have, publicly or privately, walked out on their commercial partners. George Michael set the trend in the pop world when he sacked Sony and saw off their lawyers. Karlheinz Stockhausen clawed back all his scores and recordings into his own home-based imprint.
The need for record labels was called into question as artists issued new tracks from their websites. The usefulness of music publishing weakened. Where a publisher once received a composer's scrawl and rendered it legible on pristine staves, in the shrinking market for contemporary classical music many published scores are no more than photocopies of the author's manuscript - and even that function is becoming obsolete.
A new technology, being developed by a Cambridge firm and the City of Birmingham Symphony Orchestra, should enable a composer to transmit his new work directly to the screens of a conductor and players, making modifications as they rehearse it. When that day dawns, and it's not far off, who would need a publisher?
The century-long omnipotence of the music business is on the wane. The US Supreme Court starts hearings this week on a law professor's challenge to the 1998 copyright extension act that gave corporate owners inalienable rights to, for instance, the image of Mickey Mouse and the tune of White Christmas. The professor claims that it prejudices the constitutional rights of artists and consumers.
The biz is shaking in its boots. It expects more lawsuits from pop stars resentful of restrictive contracts and more composers intent on reclaiming their scores. The moral foundations of record making and music publishing are cracked beyond repair. A pop writer, Pete Waterman, can admit to having stolen 20 times from Richard Wagner who has been safely dead for 120 years. But woe betide the pub singer who performs one of Waterman's 'original' songs without paying toll to his publishers. It's almost as absurd as suing for the sound of silence.
The basis for musical copyright is no longer black on white. Legislators are coming to accept that, in an age of instant communications, ownership will have to be redefined in favour of the creative source. When that comes about, funeral bells will toll for the corporate middleman and a requiem for the music biz.
Visit every week to read Norman Lebrecht's latest column. [Index]