Creation is collective — and so is bargaining.
For the second half of the 20th century, artists of all stripes were fed a Big Lie: namely, that when we created, we did so all on our lonesome. Our creative works were solely and wholly ours, sprung from our imagination, like Athena springing from the head of Zeus.
This lie wasn’t chosen at random: it was part of a concerted effort by ever-larger corporations to declare the fundamentals of creativity to be property of creators, who, in turn, worked for corporations, and who would naturally sign away their property rights to those companies.
In other words, the lie of creative property was twofold:
- Creators create all on their lonesome, and owe nothing to one another; and
- If creators own the title to their works free and clear, they can sell that title, too.
For companies like Disney, which made its fortune by remixing public domain works, the expansion of “IP” meant that Disney’s own works would never return to the public domain to be remixed by their successors. For every pirate who ever dreamt of being an admiral, extending the duration of copyright let public domain users climb the ladder and then pull it up behind them.
But just as importantly, the expansion of the kind of things that could be turned into property (like the right to control the creation of new creative technologies), and the eradication of fair use were means for corporations to corral more creative laborers.
The more things copyright covered, the fewer things you could make without first getting a license — a license that was increasingly held by a decreasing number of companies, who would make that license contingent on signing away all of your rights.
If you’ve ever made anything, the lie of the lone creator is obvious. And while some creators were able to kid themselves that they were the heroic sole proprietors of a wholly original business, other creators had the self-reflection and honesty to admit that the things they made were made out of other things, and refused to pretend otherwise, even when that meant risking financial and personal ruin.
For decades, creators and critics have rallied around a heroic counter-reformation, painstakingly documenting the ways in which everything is a remix.
But that counter-reformation has focused almost exclusively on the creative process — while sparing precious little attention for creative labor markets. Creators are finally owning up to the long-suppressed truth that we are part of a foment, a culture, a history, and not original geniuses who thought it all up for ourselves.
But while we’re willing to think of ourselves as standing on the shoulders of giants creatively, we still maintain the pretense that we are lonely economic actors, entrepreneurs of the portfolio, small businesspeople, artistic LLCs.
This is a glaring omission, because when creators bargain with:
- Five giant publishers; or
- Four giant studios; or
- Three giant labels; or
- Two giant ad-tech companies; or
- One giant ebook and audiobook platform;
These companies have built chokepoints between creative workers and the audiences who love our work, and they are predatory squatters at the neck of these hourglass-shaped markets, where creators are locked into one side and audiences in the other.
When governments give us more copyright to bargain with, we end up bargaining it away.
Giving an artist who is facing a monopolistic entertainment cartel more copyright is like giving a bullied kid extra lunch money. It doesn’t matter how much lunch money you give that kid — they are still going hungry. Give that kid enough lunch money and the bullies will have leftovers to spend on a global advertising campaign demanding that the world’s government cough up more lunch money for those starving kids (and the kids still won’t get fed).
Not all creators’ rights are created equal. The most reliable and durable rights for creators — the rights that actually affect the “distributional outcomes” (a fancy economists’ term for who gets the money) — are collective.
The most obvious collective right is the right to join a union. The screen trade was comprehensively unionized through the New Deal, and while the power of Hollywood unions has been steadily attacked since the Reagan era, creators’ unions are still capable of defeating even the most predatory entertainment industry cartels.
But there are other collective rights that are built right into the structure of copyright. For example, every musician has the right to perform or record every other musician’s songs, through “collective licensing” systems.
In a very important sense, songs do not belong to the creators who create them — they belong to every musician. When Sid Vicious wanted to record labor markets.“My Way,” he didn’t have to negotiate with Paul Anka for permission — he just paid the statutory fee and grabbed the mic.
While this might strike you as weird, there’s a good reason for it — every musician became a musician by performing the songs that were around them, and they always have.
As Jenkins and Boyle describe in their incredible book about the collective nature of music production, “THEFT: A History of Music,” Brahms’s First Symphony is commonly referred to as “Beethoven’s Tenth” because Brahms was basically a Beethoven tribute act —at least, at first (THEFT is open access, free to read and share, and you will never think about music the same way again).
Music isn’t unique in this regard. Edgar Allen Poe remixed many of the currents in his contemporary literary culture to create the detective story in 1841 with his story “Murders In the Rue Morgue.” Just as Brahms was a Beethoven tribute act, every detective novelist is doing Poe fanfic.
While musicologists see nothing wrong with the inalienable right to cover music, neoliberal economists are horrified by this. For the kind of economist who sees all the world’s actors as perfectly spherical horses of uniform density on a frictionless plane, a right you can’t bargain away will make you poorer, not richer.
These economists would predict that if creators owned the right to decide who could cover their songs, they could sell that right to labels and get more money than they get through a collectively managed, universal right that belongs to everyone who wants to make music.
Despite being wildly wrong, this theory has dominated our copyright policy for decades.
Take sampling: when sampling appeared on the scene, musicians assumed that they didn’t need a license to sample. After all, when a jazz trumpeter blows a couple bars of a standard in the middle of a solo, that’s not a licensed use. Why should looping a couple seconds of a popular song be any different?
This permission-free, license-free regime produced incredible music. Albums like Public Enemy’s It Takes A Nation of Millions to Hold Us Back and the Beastie Boys’ Paul’s Boutique plundered hundreds of samples without clearing them, inspiring a generation of musicians and pleasing millions of fans.
Clearing these samples wouldn’t just be hard — it would be impossible. If PE and the Beasties had paid for all their samples at the going rate, they would have had to price their CDs at $150 per disc to have a hope of breaking even.
Today, no one makes (legal) music the way the Beasties and PE did in the late eighties. A string of disastrous court decisions, backstopped by the cornering of the music market by three giant labels (Sony, Universal and Warner, who bought out all their competitors, amassing a collective market share of 70% of all music copyrights worldwide), means that today, anyone who hopes to release music with a sample in it must clear that sample.
Typically, the Big Three labels will only license samples to each other, which means you have to sign up with a label if you want to sample popular music — and all three labels require you to sign away your right to control your samples as part of their standard deal.
Giving creators the individual right to control their samples was just a slightly roundabout way of giving the Big Three labels the right to control nearly all sampling.
We could have continued to treat sampling as a permissionless activity, the way we treat dropping a snatch of a popular song into a jazz solo. We could have turned it into a collective right, one that anyone could use, by paying a set fee — just like Sid Vicious covering Paul Anka.
These collective rights are all over the place. When George Lucas wanted to recreate long sequences from Akira Kurosawa’s movies in Star Wars, he just did it —directors don’t have to license the right to recreate other directors’ shot plans. Every director owns the right to every other director’s camera innovations.
Instead, we created an individual right, which gave the corporations that artists bargain with even more negotiating leverage. This wasn’t just bad for the artists that came after this change — it also extinguished beloved and important popular music from before the change, by making it retroactively illegal.
Take De La Soul, one of the most important — and sample-heavy — hiphop acts of sampling’s golden age. De La Soul’s music has never appeared on streaming music and a generation has grown up without their influence, thanks to problems clearing the band’ samples.
Reservoir Media, a private equity incubated rollup, bought De La Soul’s label Tommy Boy records for $100,000,000 in 2021. They’ve promised to release 3 Feet High and Rising, De La Soul’s 34-year-old debut album, on streaming media next month.
Unfortunately, De La Soul’s Trugoy the Dove didn’t live to see his music reintroduced to listeners. He died this month, aged 54.
Our neoclassical economist, sliding uncontrollably over his frictionless plain, would doubtless intervene here to say, yes, individual rights aren’t very useful for small artists, but for popular artists with bargaining power, individual rights get them more money than they’d get from a blanket license.
Again, this is one of those things that may sound reasonable in theory, but falls apart in practice.
Remember how artists have the inalienable right to benefit from — but not prevent —other musicians from covering their own music? That collective right saved literally the most powerful recording artist in America save herself from rapacious finance bros.
Taylor Swift — the most powerful recording artist in America today — was originally signed to Big Machine records, which was sold to her arch-nemesis, the abusive manager Scooter Braun, whom she had publicly feuded with for years.
When Braun used $330,000,000 in private equity funding to buy out Big Machine, he acquired Swift’s “masters” — the original recordings of her first six studio albums, which she had previously tried to buy from her label. Braun subsequently flipped the label to the Disney family, but kept the right to profit from Swift’s masters.
Swift came up with an ingenious solution: she re-recorded her own albums. This is something she could do because it’s something everyone can do — you can record Taylor Swift’s albums. So can I. All we have to do is pay a set fee, because the right to record or perform every previously recorded song belongs to everyone in the world.
Swift may be the most powerful recording artist in America — but she wasn’t always that powerful. When she started bargaining with record labels, she couldn’t retain control over her masters. No artist can — that’s why Prince wrote SLAVE on his face before appearing in public.
If Swift had the right to control covers of her music, she would have been obliged to sell that right to Big Machine records, which would have sold them to Scooter Braun, and kept her in perpetual bondage to a colossal asshole whose sole contribution to her music was to tap into the private equity market and buy it.
It’s not just powerful musicians who benefit from inalienable rights. In America, every creator has the right to cancel any copyright assignment after 35 years, thanks to the “termination right” embedded in the 1976 Copyright Act.
One of the major beneficiaries of this termination right is Stephen King — one of the most powerful writers in America — who nevertheless signed weak contracts at the start of his career, and was able to claw back his rights to his early books and resell them on more favorable terms through the termination right.
Again, neoclassical economists would insist that giving King — and every other writer — the right to sign away our termination rights would make us more money, because it would be one more asset we could sell to our publishers. But they’d be wrong, and Stephen King’s own exercise of his termination rights proves it.
Twenty years ago, we started a counter-revolution against the idea of the individual creative process. We’re long overdue for a counter-revolution against the idea of the individual creative contract.
In concentrated arts markets, individual copyrights are swiftly transferred from creators to corporations, while collective, inalienable rights produce real cash money for creative workers.
In Australia, book authors are entitled to a share of the “Public Lending Right,” a pool of money that is apportioned to authors based on their works’ presence in public libraries. The PLR is a collective right, and it is inalienable — it cannot be signed away in a publishing contract.
Today, PLR payments are the second largest source of income for Australian authors — above royalties, below advances.
The primacy of advances on that list shows that creators benefit from some individual rights, but the fact that royalties are below the PLR shows us the limits of those individual rights.
Collective licensing bodies have a deserved mixed reputation — many have been caught stealing from the creators they are supposed to be paying, and they have a regrettable habit of lobbying for their own interests, even when those interests conflict with artists’.
But here in the 21st century, we have lots more options for accountability — our collective rights societies can have unprecedented degrees of transparency, and can have statutory limits on their activities: for example, any “unattributable” money owed to artists who can’t be located could be legally earmarked for improving attribution systems (not being spent on executive salaries or “artist development” programs for the administrators’ cronies).
Collective rights aren’t automatically better than individual rights, and not every collecting society is a force for good — just as not every re-use is fair use, and just as some union leaders have sold out their rank-and-file.
But we’ve spent 40 years expanding copyright’s term, scope and damages, while the artists’ share of the increasing profits of the entertainment cartels has decreased.Isn’t it time we stopped giving bullied kids more lunch money?
Isn’t it time we all got together to fight the bullies as a collective?