So… enough of the feel-good blogs.

In a couple of recent postings, I’ve relayed the happy news that the Copyright Tribunal has come down firmly on the side of the creative community, the songwriters and publishers, with their recent rulings regarding the mechanical royalty and ring tone rates. So far, so good. But as we come up on the Halloween holiday, it’s good to remember the first rule of the “fright night” movie:

Just when everything is looking good—
–SOMETHING UGLY IS WAITING AROUND THE CORNER…

And you can be sure that he, she, or it is just waiting to stick the knife in you. As pleased as music publishers and songwriters should be about recent political and legal developments that could mean big money for creators and copyright holders, we should also remain vigilant, and keep one ever-open eye trained on our real enemies in the long-term battle to keep the creation of music a viable business pursuit.

Indeed, just like in the slasher movies, the bad guy is seldom exactly whom you think it is. It’s not really the DMA (Digital Music Association), the ones who wanted to slash royalty rates from 9.1 cents to 5. It’s not even multi-million dollar corporations like Yahoo, AOL, and YouTube, who have built their business on the back of music which they have resisted paying for. It’s almost certainly not the casual illegal downloader, grabbing tracks off of illegal sites and thereby depriving Doug Morris and Steve Jobs of their 99 cents. Those groups aren’t helping us– but they’re just decoys, distracting us from the real killer lurking in our midst.

Interestingly, the real enemy lies in corners of the media intelligentsia– egghead authors, columnists and pundits with whom most songwriters and publishers have little or no familiarity. But for those that read the Wall Street Journal, Wired magazine, and other decidedly non-music oriented publications, you may have caught a glimpse of the masked monster lurking out there in the dark. If you want to meet the enemy, check out the Time magazine Business & Tech section’s review of Lawrence Lessig’s:

“Decriminalizing the Remix”

Lessig is a Stanford University Law professor, and one of the most outspoken and engaging critics of the nation’s copyright laws. He advocates reforms that would make it far easier for his heroes, the remixers, mash-up makers, collage artists, and other “secondary users” (i.e. not the people that came up with this stuff, but the ones that found it out there scattered around the pop cultural landscape) to create derivative works without the permission of (or without compensation to) the original creators. This is not an unpopular view.

In fact, it’s a view that is gaining considerable intellectual respectability– far more than one would have anticipated even ten or fifteen years ago, when copyright law was considered a fundamental requirement for an advanced economy. Lessig is also a columnist for Wired magazine, which has been one of the champions of copyright reform. That magazine is also the source of the famed “long-tail” argument, a theory that was supposed to save the music industry, but which has instead proved to be pretty much a complete bust (see my blog “The Long Tail Was A Very Short Tale”).

Other critics of copyright have emerged in Europe, where there is a growing movement against the “stifling” effects of laws that protect creators, and grant them the right to control the use of their creation. Now even the documentary film makers are getting into the act, with the recent release of writer/director Brett Gaylor’s movie:

RiP: A Remix Manifesto

Everyone seems to love the remixers these days. Strange that the remixers don’t manage to sell more records. But I suppose that record buying isn’t exactly the ethos of Lessig and Gaylor.

The danger here is that this is how real change happens in our society. The discussion begins on a very intellectual level, safely disconnected from the real world of commerce and big business. Theories are discussed, books are written, positions are debated, but the discourse remains pretty well isolated from the day-to-day lives of the everyday person. It would be safe to say that few music licensors, and frighteningly few music creators give a great deal of thought to the basic existence of copyright law. It’s simply assumed as a given by most of the industry built upon it. But it’s not a given. Nothing is. Like most every social construct, copyright law exists only so long as the majorities of people in the society respect it, value it, and are willing to defend it.

Whether you agree or disagree with things like the “non-smoking” movement, the “green” movement, or even the “neo-con” movement against things like excessive government regulation, the seeds of change usually begin in the form of intellectual ferment within universities, think-tanks, intellectual journals and the like. Gradually then, they begin to take root in the mass media– until they ultimately start to affect the way the general public views a particular issue. Twenty years ago, who would have thought it would one day be illegal to smoke in an outdoor space? When the public changes its opinion about a particular subject or principle, the laws will eventually change to reflect that shift. As a generation of young people raised with the concept of “free”, download-able music come of voting age, the writings of people like Lessig will find a receptive audience. There is every possibility that ten years from now, the general public support for the idea of copyright law will have simply melted away.

In some ways, it could hardly be surprising. In his movie, Brett Gaylor centers on the DJ, remixer Girl Talk– a king of the mash-up, who borrows liberally from dozens of well-known and obscure musical copyrights to form his new musical “collages”, and is, as he was once described in the NY Times magazine, “a lawsuit waiting to happen”. To Gaylor, Girl Talk is a victim– a creator of a new art form (not that new actually) being unfairly restricted by conventional copyright law. In the same way, Lessig is a champion of the “amateur culture” propagated by outlets like YouTube that encourages consumers to “create art as readily as they consume it”. Let’s face it, if it’s an us or them battle between creative professionals and amateurs, between people that want to build their lives (and incomes) around creating art and selling it, and people who just want to have fun goofing around with music– there are a lot more of them (the amateurs) than us (the professionals). In a democracy, that’s a dangerous position in which to find ourselves.

Let me be honest: I’m a big fan of Girl Talk. One of my all-time heroes was Hank Shocklee and the Bomb Squad, who arguably took sampling to its ultimate level with the Public Enemy records of the Eighties and Nineties. I like a funny video on YouTube as much as the next guy. I spent my life in dance music, and had the good fortune to have my music remixed by some of the greatest remixers ever– including Todd Terry, David Morales, and Masters at Work. And I recognize that copyright law can make life miserable for people that work in the art of mash-up, mix-up, and “found” art.

I’m sorry about that. But I’m also a trained musician, and at the risk of sounding elitist– when it comes to music, I am one. The ability for the best musicians and composers to make music not just a hobby, but also a very lucrative profession has served American culture quite well over the past hundred years. The world of “professional” musicians has given us Gershwin, Leiber & Stoller, Motown, Cole Porter, and plenty of others. If I have to sacrifice a couple of homemade videos of someone’s infant dancing to a Prince song in order to preserve that, I’ll take the trade. I watch Myspace as much as every other A&R weasel– and I’m not sure that any of us would claim that the talent pool has increased in quality simply by giving the world access to posting their own creations. The truth is that creating music demands a certain investment of time, talent, creativity, and sheer hard work in order to get it right. People that make that investment need and deserve to be compensated for their work. That means protecting what they make, and allowing them a reasonable level of control in the way that others use their work. It also means preserving some level of (dirty word) professionalism (that is, the ability to make this work a profession) for those who wish to spend their lives in the trenches of the creative community. Sorry for the inconvenience.

Beware!! Just when you thought it was safe to go back in the water– here I am to warn you of sharks. But keep an eye on the disciples of copyright “reform”. Though they may masquerade as the friend of the aspiring musician, they’ve got a dagger under their coat. Copyright law may not be fundamental to music, but it is certainly the foundation of the music business. If you want to make this your life’s work, I suggest you keep a tight leash on that elephant in the room…