When Goliath Steals David’s Lunch

The photojournalist Daniel Morel was recently awarded damages of $1.2 million by a U.S. court as recompense for the unauthorised re-distribution of his images by industry giants AFP and Getty Images. However while David Morel has been successful, there are many more artists for whom the theft of their work by larger corporations leaves them feeling powerless.

stop stealing

One artist’s opinion! Available under CC BY 2.0 by Nisha A

The large holders of intellectual property in popular works are quick to shut down projects that they feel are infringing. An attempt to kickstart a sequel to the popular children’s novel Where the Wild Things Are was rapidly shut down by the original publisher HarperCollins, and a charity gorilla imitating Freddie Mercury’s famous look had to be pulled from display after complaints by his estate. But what do individual artists feel like when it is their work, and not that of a large and powerful corporation, that is being taken and used without permission?

In a digital environment that makes it easy for images to be taken from their original source  artists are increasingly finding that their works are ending up in unexpected places earning money for unexpected groups.  Swedish photographer Tuana Aziz for example was unhappy when he found that one of his photos posted online was being used by clothing retailer Mango as the design for one of its t-shirts without his knowledge. And his is not an isolated case. Indeed some creators are of the opinion that incidents like this are inevitable for artists: it’s a case of “when”, not “if”.

It may very well be the case that this is due to legitimate confusion on the part of the corporations. Instagram alone had over a billion photos uploaded by 2012 and is only one amongst a vast sea of online image platforms. With such a volume of data pouring onto the web it is easy to see how the works can get disconnected from information about their authors and rights. Users can get confused over what can and can’t be done.


Available under CC BY 3.0 by wutangclanshirt

Nonetheless there is anger amongst artists at what they often view as the theft of their works. There is the perception that artists are being unfairly taken advantage of by large corporations who are either neglecting to do a diligent search for the author or who are simply ignoring them. The use of their works is often described in terms such as stealing, theft, ripped off, and wrong. An artist who found his subway map incorporated into a blockbuster videogame without his permission was “furious” and the artist behind conceptual floating island images that he claims were copied by Avatar has sued the producers for $50 million. Particularly galling was the discovery by several photographers that their works were being used by the official Canadian Intellectual Property Rights Group website without permission. Irony abounds when even the supposed champions of intellectual property are caught red-handed.

Very often there is a distinct sense of powerlessness felt by artists when they find that their work has been taken. They face a legal struggle with corporations that are much larger and have access to greater resources than any individual can get their hands on: The balance of power is against them.

There have been attempts to hit back nonetheless. Artists have taken to social media to call out their infringer’s and have publicly criticised websites like Pintrest for enabling the theft of their images. Guides have been written to make artists aware of their options. And it is clear from these stories that social shaming can have an effect. By making their problem very public artists force companies to recognise and deal with their issues.

And if all else fails the most recent case has proven – court victories do remain within the reach of some!

Music: Dead or A-Live?

Guest post by: Evgenia Kanellopoulou

Live Nation and Ticketmaster merged in 2010. This merger was greeted as the worst tsunami to hit the music world since Napster – with room for exaggeration.


Available under CC BY-SA 2.0 by Franco Folini

The majority of the music lovers are either familiar with the events of the merger or at least remember the dismay with which it was met: internationally, artistically and industrially. Characterisations such as “Satan’s Box office” and “Microsoft of the Music World” were teamed up with accusations and dismay by artists, academics and professionals. 3 years later and as the dust settles, we are left with an arguably not so profitable “monster nation” and many unanswered questions on the very nature of the music industries: what did actually happen and after all… so what? What was the grand peril the merger between the two key players of the music industries would put “us” in and what did the relevant authorities do about it? Finally, what are we left with 3 years later and is the matter still relevant?

In order to answer, or at least elaborate on the previous questions, let’s take a step back in time when live music shows and touring was nothing more than a means of promoting a newly released record. A lot has changed since these days, as within the past fifteen years live music production is acquiring a standalone corporate presence: businesses involved in the production chain of live music started to merge both horizontally and vertically and a new record is not a prerequisite for a successful tour.

While there was great corporate interest and much commercial activity surrounding the live music sector (or industry), it might very well be the case that the relevant legal authorities were “caught off guard”. Indeed this becomes apparent when a closer look is taken at the Live Nation / Ticketmaster merger as dealt with in the UK and the US:

While there was public outcry at the potential for more expensive concert tickets this alone was not reason enough to block a merger. In order to legally assess its impact one key thing appeared to be missing: the relevant product market.  Given the breadth and length of the Live Nation and Ticketmaster activities – ranging from Artists’ Manager, to booking agent, to promoter, to venue manager, to ticket agent – in what market exactly would their merger potentially harm competition? Both Live Nation and Ticketmaster were omnipresent in all stages of live music production prior to the merger, but was there a separate market for live music productions in a legal sense? In other words, is there a separate live music industry within the music industry?


LiveAlive Photographs, Chris Kissadjekian, used with the photographer’s permission

Unfortunately this question has yet to be resolved: The nature of the live music business and its relation to the traditional music industry is a matter that still to this day is under investigation: It remains a blurry image to traditional black letter law authorities such as the US Department of Justice or the UK Competition Commission.

For the purposes of the law the merger was treated as a merger between ticket agents only. There was some justification for this approach: At the time of the merger it was true that Live Nation had started entering the ticketing market and had considered self- supply to cover its ticketing needs.As far as the UK was concerned therefore while the merger might have has an impact by inhibiting the German firm Eventim from entering the ticketing market it was on balance deemed acceptable.

The US resolution however leaves more room for interpretation. There the case had to be settled and a new competitor had to be created out of divested Live Nation assets (merger cleared with remedies).  The Department of Justice recognised the complexity of the issue but by rushing down the settlement route it avoided the need to provide answers regarding the nature of the market or the possible implications on all levels of the supply chain for live music events.

As a result, the concerns of many academics and industry professionals were not addressed: is there a separate market for the live music industry and what does it consist of? Had the market been defined differently, would the merged have been blocked or at least treated differently? Unfortunately, the competition authorities did not cater for the needs of music industries aficionados. They did however add to our concerns and provided us with proof that there is a matter to be discussed and there is research to be done: the research on the music industries is relevant and might even be relevant on more levels than we might have imagined.

Broken Record

Available under CC BY-NC-ND 2.0 by Kevin Trotman

In the fast paced music industry business models and business trends, corporate stories and strategies, all evolve rapidly. This both creates conceptual obstacles for the legal authorities and vice versa: legal authorities are often called to evaluate and assess situations with which they are not always familiar. The research and the debate on alternative business models seems crucial in this scenario not only vis-a-vis the re-design of the music industries in their corporate form, but also because what the creator themselves now perceives as a viable business model has changed dramatically. New and upcoming artists and well established artists alike are aware that it’s not a matter of copyright assignment to a record company anymore. The multitude of emerging business models makes the definition of a “music product” hard to define and correspondingly the difficulty in defining a product makes competition laws hard to apply.

The bridging of the gap appears to be crucial not only for the rightful application of the law, but also for the uninhibited evolution of the industry as it reacts to potential threats and responds to its commercial and financial survival instincts. This subject matter is very much still relevant.


To be continued….


For Better or For Worse – Do New Technologies Actually Benefit Artists?

Over recent years we have seen a number of innovative new technologies, from iTunes to the iPlayer, released that promise to benefit both creators and users alike. Unsurprisingly these new arrivals meet with frosty receptions from the artists whose works they sell. Claims that these technologies will hurt rather than help are thrown against the claims of the companies running the services, who for their part argue that they will give artists a better deal than anything that has gone before. So who is in the right?

Over recent months this running war between the two sides has once again seized the headlines as prominent musicians and industry bodies have hit out at online music streaming services Spotify and Pandora. Last month artist David Byrne followed in the footsteps of Radiohead frontman Thom Yorke and Radiohead  producer Nigel Godrich  by pulling a large part of his works from Spotify amid wider claims by artists that such services give them a raw deal. Music superstars Pink Floyd even came out publically in opposition to the online radio service Pandora, accusing them of trying to trick artists into supporting an 85% pay cut.

Indeed Godrich claimed on twitter that the Spotify model was actively harmful to small labels and new artists. The most prominent complaint put forward by artists has been the unsustainably low amounts that they have been paid for their online radio plays. As an example one songwriter, David Lowery, made only U.S. $16.89 in royalties despite his band’s track receiving over 1.15 million plays on Pandora: He claims to make more than this through the sale of a single T-shirt in some venues. In contrast Lowery received over $1500 from terrestrial radio royalties for the same song over the same time period.

Industry lobbying groups have likewise come out guns blazing against online radio services. The purchase by Pandora of a terrestrial radio station in a bid to pay lower rates was branded a “sick joke” by music industry groups who claim that Pandora are attempting to cheat artists out of money. David Israelite, CEO of the National Music Publishers Association, has outright accused Pandora of being “at war with songwriters”.


Available under CC BY-NC-SA 2.0 by the justified sinner

The companies behind these services are not taking such claims lying down however. They have claimed that these figures are grossly misleading, if not outright lies, and that far from harming artists their services actually offer them a better deal than their traditional counterparts. Pandora replied to Pink Floyd by arguing that they were being misled by an industry lobbying campaign led by the RIAA: that Pandora payouts to artists are 4.5 times more generous per listener than that paid by terrestrial radio, and greater in total than any other form of radio. The industry position that Pandora seeks an 85% reduction in artist royalties is dismissed as “a lie manufactured by the RIAA”. Spotify likewise points out that while its business model is still in its early stages it has already paid out over $500 million to artists, and is on track pay out $1 billion by the end of 2013.

With such an emotive issue it can be hard to look beyond the rhetoric to consider the issues objectively. One thing that is clear is that the numbers being thrown around by both sides are exaggerated and unhelpful. For example Michael DeGusta, a tech blogger and businessman, looked at Lowrey’s payout figures (discussed above) and calculated the actual pay-out by Pandora for the song at over $1300, with Lowery actually receiving a total closer to $234 than the headline figure of $16.89. While $16.89 did represent a payout received it was (predictably) not the whole of the story. It only represented one of the royalty streams – songwriting and performance – that Lowery was due; it represented the smallest of these two streams; and it represented only around 40% of that smaller stream as other players, including record companies and other band members, took their cuts. Indeed in a recent op-ed for the Guardian newspaper Billy Bragg argues that the problem is not the payouts themselves, but the fact that record label contracts often take a huge cut from the funds before they ever reach the pockets of artists.

On the other hand however the $500 million to $1 billion payout figures trumpeted by Spotify does ignore the fact that the underlying payout rates are measured in fractions of a penny and that even if the whole sum made its way directly to the artists the number of plays required just to make the minimum wage would still be in the order of tens, if not hundreds, of thousands of plays each and every month. For all but the biggest of artists these royalties will never even pay the bills, let alone make their fortunes.

Overall however it can be argued that the current rhetoric is perhaps missing the real point. While the situation is often described as a fight between artists and technologies, the reality is that the changing technologies are themselves often simply reflecting an underlying shift in consumer expectations. Consumers have long since left behind a world where they were the passive recipients of music. Instead they seek on-demand flexible access to the music they choose at a time and place convenient to them.  Perhaps instead of railing at the business models of the new technologies, artists should be looking to seize the advantages that they can offer.