Hoarding, Archiving, and the Public Domain: Universal Vault Edition

The New York Times Magazine just dropped a piece on the complete destruction of every master recording in Universal's West Coast vault. I haven't even finished reading it, because it's so terrible I have to digest it in installments and take breaks. Hundreds of thousands of irreplaceable master tapes were destroyed.

There were recordings from dozens of record companies that had been absorbed by Universal over the years, including several of the most important labels of all time. The vault housed tape masters for Decca, the pop, jazz and classical powerhouse; it housed master tapes for the storied blues label Chess; it housed masters for Impulse, the groundbreaking jazz label. The vault held masters for the MCA, ABC, A&M, Geffen and Interscope labels. And it held masters for a host of smaller subsidiary labels. Nearly all of these masters — in some cases, the complete discographies of entire record labels — were wiped out in the fire.

There are no more original recordings by Buddy Holly. They were all in the vault. The core of Chuck Berry's musical achievement burned. Decades of seminal work by Louis Armstrong, Duke Ellington, Billie Holliday ... that's just the beginning of the list. Read it for yourself, but maybe only a few paragraphs at a time. It's hard to take.

It's a major loss to the history of human culture. And the company had kept it hushed up. I applaud the Times on their investigative work.

Oh, by the way, there were unreleased session masters in there, too. Lots of them.

And here's the thing: those recordings were part of our shared heritage. On one level, that musical history belonged to all of us. But on a legal and financial level, they belonged to Universal Music Group, who kept them in part of a warehouse they rented from former sibling company Universal Studios, who let them incinerate.

But a lot of the music in those recordings only belonged to UMG in the 21st century because copyright laws had been repeatedly changed. Everything in that vault recorded before 1952 would have been public domain before the fire hit, based on the laws in place when the music was actually recorded.

Would that have changed anything? I don't know. We're talking about one-of-a-kind physical artifacts, which would have retained some of their value even after the music in them became public property. In fact, they might have had much more value, as unique assets that allowed UMG key advantages over their competitors. And maybe that would have changed the incentives.

The incentives of nearly-interminable copyrights, which are allegedly designed to protect our artistic heritage, often align to damage or destroy it.

Let's start with the fact that a lot of that music, including lots of unreleased music, was just sitting in that vault. Why hadn't UMG released it? Because they didn't have to. No one else could. The law gave them exclusive rights to those recordings, so they had no competitors. UMG could just keep all that music in the back, like the crate with the Lost Ark.

We think of copyright as the right to publish something, but it is more accurately described as the right to keep work from being published. Exclusive rights to publish means that you can keep other people from publishing it. That's what copyright is on a practical level: the right to get the court to stop someone else from selling something. But if you have exclusive rights, you also have the right NOT to release something. No one can make you sell your property, right?

What that leads to, when you have copyright terms lasting an unprecedented 95 years, is big music companies (and film companies, and book publishers, and, and, and) ending up owning a lot of old things that no longer have huge commercial appeal and that don't seem worth reissuing. But on the other hand, all those things collectively are the company's property, and there may be a way to make money on them someday, so there's no reason to let anyone else have them, ever. 95-year copyright means a lot of things get kept in the back room by private owners who don't really want them and don't want to let them go.

This is how priceless cultural artifacts end up in a hoard when they should be in an archive. God forbid massive corporations give, or even lend, their libraries of priceless master tapes to libraries or museums that would protect them. Because, you see, that would let other people have access to that art.

And the incentives change when your copyright protections run out. When you know that every other record company is about to release their own copies of Billie Holliday's Stay with Me, you have an incentive to reissue it yourself. And more, importantly, to remaster it with improved sound quality, exploiting those original master tapes. Maybe even to throw in some previously unreleased material. But if there's no competition, you don't get around to it.

"But wait, Doctor Cleveland," some of you will say, "doesn't the long term of copyright create an incentive for companies to protect all those old masters?" The answer, evidently, is no. Not enough. Our intellectual property regime didn't cause this fire. But it sure didn't help. And that's a damned shame.

cross-posted from Dagblog. All comments welcome there, not here

Intellectual Property Blues, Beatles Edition

cross-posted at Dagblog

So, the Beatles are finally available on iTunes, goo goo goo joob. And the news has been greeted with a resounding yawn; many people claim that the move is much, much too late to be hip, and too late to be hip, in the music business, means too late to make a sale. [UPDATE: Since the Beatles sold 2 million songs and 450,000 albums n iTunes this week, I was obviously completely wrong about this.] Anyway, as every music columnist has already pointed out, Beatles fans all ripped all of their CDs to iPods years ago. (Disclaimer: Dr. Cleveland is a Beatles fan with an iPod. He did in fact rip all his Beatles CDs years ago.) But this John-Paul-George-and-Ringo-come-lately move isn't an isolated case: it's part of an ongoing intellectual-property management strategy by the Beatles' people, a strategy that tries to preserve their value by preserving scarcity and keeping prices high. And while that sounds like a reasonable strategy, it's probably going to hurt them in the long run.

For example, The Beatles have never allowed songs in movie soundtracks until this year. Their manager/loyalist/gatekeeper Neil Aspinall, who recently passed away, forbade it. You could pay for cover versions, but the actual tracks were the holy of holies and you couldn't have them. This is why you have never seen a movie set in the 1960s, unless it was Help! or A Hard Day's Night!, in which anyone was listening to the Beatles. Think about it. Think of a movie set between 1964 and, say, 1971 or 1973. What's on the soundtrack? If the characters put on a record or turn on their radio, what do they hear?

Hendrix. Janis. Puff the Magic Dragon. If the movie's budget is too low, Canned Heat. Now, all of that stuff was playing back then. It's "realistic," in the movie sense that those records were actually being played in the time period. And there's plenty of great music from the 1960s that can be licensed cheaply for films. (The Jefferson Airplane's people aren't holding out for top dollar.) So, naturally, film makers put the inexpensive songs on the sound track.

Here's the funny part: if you grew up with films about the 1960s, rather than personal memories of that decade, it probably seems to you as if those less expensive songs, the K-Tel Greatest Hits, were more popular than they were. And it will seem to you as if the Beatles never got played at all. In fact, the Beatles had a kind of carpet-bombing dominance of the airwaves and the record charts for years on end, a kind of dominance that we don't see anymore (and therefore don't intuitively find plausible). In the actual 1960s, the Beatles were ubiquitous. In the film version of the 1960s they're nowhere (man). Our mass media prompts us to imagine a 1960s in which "White Rabbit" was playing constantly and the "Strawberry Fields" never got air time. In fact, it's just the reverse. You hear "White Rabbit" so much now because it was only pretty successful back then.

(Ask a college kid who was more popular in 1968, Hendrix or the Beatles. They will take it as a serious question, and it isn't. Hendrix was a star, but the Beatles were crazy monster supernovas. Jimi's biggest single peaked at #20, which is roughly comparable to how the B-Side to "Paperback Writer" did. Even major figures like Dylan and the Stones, who are in the conversation with the Beatles, didn't have the same kind of success or market power.)

Now, the Apple Records "no soundtrack" policy makes obvious sense as a way to preserve the value of the Beatles brand, by enforcing scarcity. And the new policy will just be a kinder, gentler version of the old one, since the prices to license a Beatles tune for a film will still be sky-high. (One of the three songs licensed this year cost the studio $1.5 million dollars.) But in practice, this strategy has the unexpected effect of undermining younger listeners' sense of the Beatles' importance. The band seems less central, and less important, which means they eventually become less influential and important. This may be hard for some Baby Boomers to understand, because the Beatles' magnitude seems so inescapably obvious to them. But younger listeners weren't there for the Sixties, and the Beatles got left out of the movies.

(The Stones have a different strategy: they license songs for movie soundtracks, but not for soundtrack albums. The songs in the movies keep the band in the public mind, but if you want to buy the record you've got to buy The Stones. It's a smart business strategy; Mick went to the London School of Economics, after all.)

Anyway, here's some free promotion for the Fab Four, because they were pretty good on their off days: