Tuesday, June 11, 2019

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