bought culture

bought culture
The recent redux of payola offers a chance to take stock of the cultural failure of commercial music, and a hope for normative change. In other words, the music industry must die.


This week, after settling a law suit with Sony BMG Music, NY's Attorney General Eliot Spitzer released a good deal of unsavory information about the record company's practices of paying radio stations for the label's songs' airplay. The practice of payola is as old timey as the non-monetary contributor to the word, Victrola. The word was coined, some 50 years ago, when Congress investigated bribes paid to disc jockeys to play certain records. And now this:

The state investigation found that Sony BMG, which releases music by acts including Jennifer Lopez, Good Charlotte and Beyonce had provided stations with entertainers for station-affiliated concerts or paid for station equipment or other bills in exchange for having its songs played. It also provided vacations and electronic goods for on-air giveaways in a direct trade for airplay. And it hired independent promoters to funnel money to radio stations.

In addition, the investigation found that the company had tried to distort industry airplay charts - creating the false impression that a song was taking off - by paying stations to play its songs as sponsored advertisements. It has also used interns and hired vendors to call radio stations with requests.

As a result, Mr. Spitzer said in the settlement documents, "Sony BMG and the other record labels present the public with a skewed picture of the country's 'best' and 'most popular' recorded music."

That music corporations act like corporations is unsurprising. To the extent one thinks of music as a commodity, we should expect it to play in the commercial world like anything else in the market economy. As such, the problem of payola resembles false advertising and antitrust issues; wherein a corporate player skews the market so as to unjustifiably taint the consumers' choice in the product. And the solution to the problem is one of leveling the table on which the record companies display their product. Hence, Cliff Doerksen's opinion piece in the Times:

...systems of "bribery" analogous to payola operate in many retail markets. Most supermarket chains, for example, make a chunk of their revenue from "slotting fees," which are the rents that food distributors pay them for shelf space. That such rents are paid says nothing about the flavor or nutritional value of any given item on the shelves. Where music is concerned, however, the concept of payola somehow seems intuitively revolting.

Yet, like it not, every popular song you've ever loved has reached you via some chain of pay-for-play machinations. The technological landscape has changed over time, as have the laws supposedly governing music promotion, but payola has been as constant and pervasive a force as gravity for more than a century now. A rational set of regulations would probably acknowledge this reality and aim at leveling the playing field so that small players can compete against big ones, just as they used to do in the early heyday of rock 'n' roll, when tiny labels like Sun briefly had the likes of RCA on the ropes.

Music, though, is not a commodity. A song is not a box of corn flakes, or a widget--and the norm of treating songs as such kills the value and quality of music as a factor in our human experience and within our culture. Within our current music business context, Doerksen's hopes for a level playing field where indie record labels and major companies compete honestly to shell out their music is well received. But this is to tweak a few trees in a dying forest.

Payola is only a manifestation of the failures in a system of corporate music, wherein band puts together a song and company peddles the song in order to promote the product (cd) that contains the song. And all the players (including indie labels) are guilty of perpetuating the wrong direction in music; because, all record labels rely on the wrong view of song as property.

Yes, you saw this coming...music is suffering the consequences of bad intellectual property law.

My complaint is not that songs on corporate radio stink. Someone, somewhere will always write a song that i regard as crapola, regardless of the fate of payola. Nor do I dismiss the value of popular music, where the joy of a song is in singing along with others that know the song. And I certainly do not secretly wish all radio could become college radio with djs across America trying to out-obscure one another. I have seen the world of "I have a new band you've never heard of," and it is depressing.

Variety is great, as is hearing a new band. But this is not my point. Variety, if seen only in the sense of more competition, and thus a more perfect market, still avoids the problem of music as comodity.

The tough realization that we must come to is this: songs should basically be free. Song-makers should, more or less, not get paid.

And this, from someone that fancies himself a would-be entertainment lawyer?

If we watch/hear music performed, it makes sense for the value of the performance. Similarly, when the performance is caught on tape, it makes sense to pay for that record of the performance, just as a poster is a record of a piece of art; both enable mass reproduction of something that evokes a thing we like. Indeed, recorded music itself can be the art, in that the musician manipulates sounds with studio equipment in order to reach a final artistic end. Well and good, and these things, if we want copies, are sensibly bought and sold.

A song, though, is distinct from the performance (leave aside, for now, electronic music, arrangments, and orchestrial works). Song makers, for the most part, place words over chords. No chord progression arrives out of whole cloth. The argument for long-lasting copyright, then, is that particular words have uniquely been placed over chords. Under current law, that act-putting some words over some chords, can get you the right to keep other people from using those words over those chords for nearly a hundred years. It is this concept of the song that leads to record labels to manage the song, radio stations to sell the song, and the song as commercial commodity.

There is an alternative: a norm where songs are not valued, but performance is. I'm thinking this norm might be similar to a folk music society (in the old sense of the word- such that a song is sort of known, but is played and heard differently amongst different local cultures)...but my thinking on this is fairly immature.

Normative change efforts are afoot. Read the Future of Music. For a broader discussion of intellectual property's role, read Professor Lessig's Archetecture of Innovation.