This is a continuation of an analysis of the current lawsuit between the family of Marvin Gaye and Robin Thicke and Pharell Willams, the songwriters of “Blurred Lines.”
Court has been called back into session in the Blurred Lines plagiarism lawsuit, and as far as I can tell, the plaintiffs are currently making their case. Gaye’s camp does not have much to go on, since the judge ruled that the full recordings of the original songs could not be played in court, but their case looks stronger than I thought it would. According to Kate Conger at Ratter, the musicologist hired by the Gaye family presented the following slide in court last week:
With this slide the musicologist puts both melodies in the same context; and proves that they share the following elements:
a: a melodic fragment of three repeated notes (but not on the same scale degree)
b: a melodic fragment consisting of the 5th, 6th, and 1st scale degree in upwards motion in eighth notes
c: a rhythm of six repeated eighth notes preceded by a rest
d: a melisma (a phrase where one vowel sound is continued over more than one note) that contains a descending fourth (the second b)
Although this is a much more compelling case than I was expecting, these elements are far from novel, and I can’t see how this case could be won by the Gaye family without opening the door to a wave of lawsuits and copyright trolling. Take those a and b melody fragments of Got To Get It Up, for example, notated here as “5-5-5″ and “5-6-1.” Together they are also the melody of the opening phrase of the chorus to Janet Jackson’s song Runaway:
They’re also basically the opening piano melody to Smokey Robinson’s You Really Got a Hold On Me:
(*In this case phrase a is reduced to one note on the 5th scale degree, however phrase b continues onto the 2nd and then 1st scale degree, as is the case of Got To Give It Up.)
That eighth note rhythm indicated as c is also extremely common,which makes me wonder why it’s even being considered as part of the lawsuit. Here it is in Beauty and The Beast:
Here it is in Old Time Rock and Roll:
And in the opening phrase of Beethoven’s Waldstein Sonata:
So even though the musical material labeled a, b and c is all relevant to the case, I don’t think there is enough here to warrant a verdict in favor of Gaye’s family. These are common melodic and rhythmic ideas. I have only been working at this for about an hour and have already came up with one example that is an exact match for the Gaye a, b and c; one match for b and c that contains a fragment of a, and three rhythmic matches for c. This can be contrasted with the Sam Smith / Tom Petty plagiarism case, where my $180 prize for a third exact match that predates those songs has yet to be claimed despite a response from my friends that would lead me to estimate at least 15 man-hours have been spent looking for one.
You may be asking “what about the musical material labeled d and the second b?” The fragments that the musicologist is labeling d and the second b are irrelevant, I think; melismas are frequently improvised, and besides, they are different melismas. You can’t copyright the broad idea of including a melisma that contains a descending fourth.
Bright Tunes Music v. Harrisongs involved two recordings that had the same three- and five-note melodic fragments. In his ruling the judge in that case decided that using the same three- and five-note fragments on their own was not novel enough to be copyright infringement, but that “the four repetitions of A, followed by four repetitions of B, is a highly unique pattern.” So the copyright was violated not because a few notes were the same but because each of those fragments were repeated in the same way in each song for a total of twenty-seven shared notes in a row between the two songs. This is clearly not happening with Blurred Lines; there are only three (arguably five) notes that match each other exactly, and they are not repeated.
All things being said, this case is a lot closer than I thought it was going to be, and the Gaye family’s chances depend on on the jury’s perception of all of this. We are in fairly murky waters, but based on our current copyright laws and the precedent set by Bright Music v. Harrisongs, this is not a case of plagiarism. If the jury does rule in favor of the Gaye family, things are about to get very interesting. The Gayes’ musicologist has chopped the music up into pieces that are so small that it would fundamentally change the process of songwriting if they won. If three common notes within a single similarly-shaped phrase is all that is needed to successfully sue someone, then the floodgates of litigation are about to swing wide open. Stay tuned.
Last August, Robin Thicke sued the estate of Marvin Gaye, who had been harassing him regarding the similarities between his hit Blurred Lines and Gaye’s 1977 record Got To Give It Up. The lawsuit accused Gaye’s family of making an invalid copyright claim because the similarities that do exist between the two recordings fall outside of what can legally be copyrighted. In response, Marvin Gaye’s family formally sued Thicke and Pharell Williams, the producer and primary songwriter of “Blurred Lines,” for copyright infringement. The judge in the case allowed it to go to trial, the first date of which took place last week.
In the United States, you can copyright a melody, lyrics, and an audio recording. You cannot copyright a style, a chord progression, a song title, a groove, or a studio production technique. This is why no one has ever sued anyone over the similarities highlighted in the famous 4-Chord Song Youtube video, or why no bebop rhythm section will ever be sued for pairing a walking bass line with a swinging cymbal pattern. Only the lyrics of a song, the recording of the song itself and its melody, defined as a rhythmically organized sequence of single tones so related to one another as to make up a particular phrase or idea, can be copyrighted.
The legal precedent for cases of plagiarism in popular music was set by the judge in Bright Tunes Music v. Harrisongs, who determined that George Harrison had plagiarized He’s So Fine, a hit song from 1963, with My Sweet Lord, the lead single from this first solo album. The judge cited the fact that the basic melody of each of these songs contained the same eight notes in the same sequence and rhythm: a three note phrase repeated four times and a five-note phrase repeated three times with slight variation. He also took into account the fact that George Harrison was undoubtedly aware of He’s So Fine since it was on the pop charts at same the time the Beatles had a song at #1.
The test of whether two songs are the same can be diluted to this: If the songs were sung side-by side, in the same key and at the same tempo, would the melodies match? In the case of He’s So Fine and My Sweet Lord, the Judge considered these the same two melodies despite their slight variation in rhythm, since the underlying diatonic pitches are the same:
Same is true for “Twinkle Twinkle Little Star” and “The Alphabet Song,” a fact that can be used to the delight of toddlers (thank you Annie Moor for providing the vocals:)
In the case of Sam Smith’s tune “Stay With Me” and Tom Petty’s “I Won’t Back Down,” the verdict is even more clear: these are the same melody, without variation, for three of the four phrases, as you can clearly hear when the songs are sung side-by-side. You’ll hear a slight clashing in the harmonies, but you’ll notice that they are otherwise the same melody for those phrases:
This is not the case for “Got To Give It Up” and “Blurred Lines.” Not only are the melodies different, but they operate with different phrase lengths, chord progressions and melodic contour. You will hear a ton of clashing. These are not the same song by any definition, and it’s not even close:
(note: in the last three examples each song is isolated on the left or right channel so you can compare them and also hear them separately. You will also notice I am not Marvin Gaye.)
Despite how clear it is that these are two different songs, there is no debate over the fact that the recording of Blurred Lines sounds similar to Got To Give It Up. Both recordings feature a double-time, off-beat electric piano pattern superimposed over a fairly straight-forward 4/4 drum pattern that includes a rapid cowbell rhythm and a bass line that anticipates the downbeat. This produces a unique sound for a pop song, so the similarity between these two recordings is pretty noticeable, and Pharell and Robin Thicke are open about the fact that they modeled their backing track on the Marvin Gaye recording. But even though they acknowledge that this was purposeful, what they did wasn’t plagiarism. It is not even copying or ripping-off; it’s emulation, and people are regularly praised for the way they emulate certain styles or the way they incorporate certain musical ideas into their playing or recording. Mark Ronson and Bruno Mars certainly borrowed from turn-of-the-1980s funk artists like Cameo and Rick James for their megahit “Uptown Funk” but you won’t hear any accusations of plagiarism unless it’s found that they lifted a melody or lyrics verbatim from one of those earlier recordings. No such case exists. The same rules apply to “Blurred Lines.”
A lot of people that should know better are reporting and commenting on this issue as if it were a cut-and-dry case of plagiarism. In response to the initial lawsuit, Nicholas Payton posted an open letter to Pharell in which he viciously berated the producer for what Payton believed was a case of brazen musical theft. “Just because you and Thicke lowered the key a whole step from A to G and removed the Blues doesn’t mean you didn’t steal it,” Payton wrote. “If that monotonous piece of trash you call a song had a bridge, you probably would have stolen it, too.” This completely disregards the fact that the two songs have different melodies, lyrics, phrase lengths, forms, and chord progressions. He even attacked Pharell for (correctly) saying that these two tunes would look different on sheet music: “What sheet music are you talking about? From some wack publishing company that did a transcription of Marvin Gaye’s work?” This is an odd series of statements when you consider that he is one of the world’s more renowned horn players in an idiom that is built upon emulating, honoring, and appropriating the work of other artists. How does Mr. Payton feel about playing contrafacts such as “Hot House?” What about the fact that he straight lifted the opening phrase of Louis Armstrong’s “West End Blues” cadenza when he recorded that tune a few years ago? It is not a stretch to say that Nicholas Payton is one of the most highly respected trumpet players of our time. Someone with his clout and musical knowledge should know better.
Court reconvenes next week. The jury will not hear the audio recording of Marvin Gaye’s song due to the fact that Gaye’s family does not own it. Because it is the recordings that sound similar, not the compositions, it is almost certain that the Gayes will lose this copyright suit. Still, according to the New York Daily News “each side has retained high-priced musicologists who will give opinions about what’s similar and peck away at keyboard keys in court.” It is baffling to think there is such thing as a high-priced musicologist, and it makes you wonder what case any credible musicologist would try to make regarding the legal similarity between these two songs. Maybe they’ll argue that one specific phrase is copied? I’ve listened to the tunes several times and cannot find one.
There’s no way that Blurred Lines could lose this battle without opening the door for thousands of lawsuits. Could Michael Jackson’s estate sue Madonna because the background track to “Like a Virgin” is basically a major-key emulation of “Billie Jean” with synthesizers instead of live instruments? Could AC/DC sue Metallica for the similarities between the bells that open “For Whom The Bell Tolls” and “Hell’s Bells?” What about the hundreds of pop-punk bands that sound almost exactly like one another? Could the first one of those sue the rest of them? And for that matter, what about all of the bebop drummers and their spang-spang-a-lang cymbal pattern? If emulating the style of an earlier musical performance becomes the new legal standard for plagiarism, we are all in a lot of trouble.
By now we are all aware of the fact that the chorus of Sam Smith’s Grammy-winning song “Stay With Me” is functionally identical to the verse of Tom Petty’s 1989 hit “I Won’t Back Down,” with the exception of the third phrases. In case you’ve missed this story, here is the Youtube video that lays it all out:
Even though the songs sound very different on their own, the melodies themselves are identical, so those bits of Sam Smith’s tune are legally the same song as the corresponding bits of “I Won’t Back Down.” This is in contrast to the ocean of sound-alike songs out there — like the recent hits “Tik Tok” and “California Girls” — that sound like copies of each other but that are ultimately one or two notches removed from being legally the same song.
When news broke that Tom Petty would begin receiving royalties for the song, many people — myself included — thought it ultimately a little unfair to Sam Smith. Yes, these two songs are identical in a way that you can’t legally argue that the songs are different, but this particular melody is so simple and so universal that it is hard to imagine that Petty was the first person to write it, and Sam Smith’s recording is unique to the point that it feels like its own song. In an oft-cited article for Slate defending Sam Smith, Adam Ragusea went so far as to claim that he could find “a lot of songs that would be similarly simpatico,” which would mean that not only was Tom Petty not the first person to publish or record a song with that melody, but there would have to be many examples out there. Half-jokingly, I offered $80 to my first Facebook friend that found a perfect match that was published or recorded before “I Won’t Back Down,” thinking that it would only take a few music experts working for a few hours on their day off before one was found. But, two weeks later I am writing this and there have been no matches. This is an important issue, one that hits at the heart of what it means to be a musician in 2015, so I am doubling-down on the contest.
The Contest: I will give one hundred and eighty dollars ($180) to the first person who provides evidence of a song that was written before “I won’t back down” that contains the following ten-note melody in any key:It can appear any place in the song but it has to be exact, in the same way that Sam Smith’s song is exact. It must appear that way in a published version or a released recording (not a live version or outtake.) You have to submit it here and you have to be first.
This is not intended as a knock on Tom Petty nor as a dig at his detractors; if we can’t find another song with the exact same melody, we should all lay off of Mr. Petty and let him collect his deserved royalties in peace. Likewise, if it is proven that the melody is older than 1989, the year that “I Won’t Back Down” was released, Sam Smith should not have to share writing credit or royalties with Mr. Petty; in fact, we may discover an earlier songwriter that deserves his or her own cut of both of these songs.
The full terms of the contest are as follows:
Submissions to the contest must be in the form of a comment on this blog post or on my personal facebook page. The timestamp of your comment will be the official timestamp of your entry.
The submission must be verified by a recording or published sheet music. If a recording it must be cataloged on the Allmusic Guide as being released before “I Won’t Back Down.” If sheet music, it must be proven to have been published before “I Won’t Back Down.” If you submit a song title without proof, your timestamp remains valid for twelve (12) hours to give you time to provide proof. In the case of a dispute or an ambiguity the burden of proof is on the submitter.
The melody can appear anywhere in the song, but all ten pitches and rhythms must be an exact match. The rhythms must fall on the same beats as the given example, including the rest on beat one of bars 1 and 3, and the melody should function the same way in terms of solfege (e.g. that last note, in whatever key, must function as “do.”)
If I (Dan Reitz) become aware of a matching song before a matching song is submitted, the contest is over. If this happens I will announce it in the comments of this blog post.
If you win the contest you agree to refrain from blogging about it or mentioning it on media until I have announced the win on my blog, for a maximum of 3 days (I will likely announce it immediately.)
You will receive your prize after the announcement has been made.
I am the ultimate judge of this contest and reserve the right to full authority over it. I reserve the right to cancel the contest for any reason or to disqualify a person for any reason.
This is a real contest with real implications, so feel free to take it seriously. I would be surprised if there is not a matching song somewhere in the bowels of recorded and published music, but I don’t think it will be easy to find. It may even be older than copyright law itself. Happy sleuthing.
Some exposition, briefly, for the uninitiated: The Real Book is a “fake book” compiled by anonymous college students in the mid 1970s. It contains lead sheets for over a thousand songs across three handwritten volumes that went through 5 bootleg revisions before being legitimized as the “Sixth Edition” by Hal Leonard in 2003. Despite being 40 years old – and having been underground most of its life – it’s the most common fake book used by jazz musicians. You can find it at gigs, in high schools and colleges, at jam sessions, and in people’s homes for their personal practice and reference. I do not know a jazz musician who doesn’t at have access to a copy. Every jazz musician reading this has had access to a copy at some point.
A lot of people are against using fake books like The Real Book because they are cheap ways to learn tunes, and books like The Real Book are frequently unwelcome at jam sessions because Come On Dude, Learn The Tune. I agree with that last bit. Don’t read from a book at a jam session. Learn The Tune. But I do appreciate having a reference on hand to clarify the melodies and harmonies for tunes, especially older tunes that have been interpreted so many ways that their original melodies are lost to me. I also appreciate the lead sheet as a way to learn or teach a song on the quick, like on a gig or at a rehearsal. So I am not out to convince anyone not to use fake books or lead sheets.
I am writing this to convince you to stop using The Real Book, specifically. The charts in the bootleg version – widely available on the internet and still very common in print form among musicians my age and older – are inconsistent, sloppy and frequently inaccurate. The legal Sixth Edition fixed many of these problems, but in doing so the new editors have made the Sixth Edition incompatible with older versions, and it still contains more than a few questionably transcribed chord changes and melodies. It also does not include the lyrics of any tunes, so if you are working with a singer who also wants to read the tune, you’re going to need a different book anyway.
We’ll talk about the Sixth Edition in a little bit. But first we need to address those bootleg editions. They are still everywhere, and we need to be done with them. Done Done. Throw-them-in-the-bin done. The closest nonmusical analogy I can think of is if a poorly translated collection of poems became the standard versions of those poems in English, even though the original poems were also in English. And it’s not that The Real Book wanted to simplify songs for people to learn, like a Cliff’s Notes-type thing for musicians; in fact, The Real Book’s versions of tunes were typically more complicated than the original tunes, sometimes in ways that are completely arbitrary.
In some cases, a standard tune was presented in The Real Book with alternate chord changes in place of the original chord progression with no indication that they are alternate changes. This could pose a problem if someone was reading from the book while another person was playing or singing from memory, or if someone was using the book as a reference. Here is the chart for the Jimmy Van Heusen tune Like Someone In Love:
These are great chord changes, but they’re not the original changes. They’re Coltrane’s changes. Assuming the key of Eb major, measure six should be Bb7 or Bb+7, and measure 7 should be Eb or Eb6 or Ebmaj7. Those are the original chords of the song, and they are the chords that are most commonly played, at least in the 1950s and 1960s recordings of the tune. This is not to say that the altered chords are “wrong.” I love them and think they sound wonderful. But if a book is going to be the standard book for all jazz musicians, the standard chords for a tune should be the chords included in the book, and any alternate chord changes should be indicated as such.
In other cases, the melody for an old standard was written out as someone might freely interpret it instead of how it is generally thought to exist in its pure form. One example of this is Basin St. Blues, from the original Real Book Vol. 2:
I think someone playing this chart note-for-note could probably sound pretty swinging, but that’s clearly not the melody for Basin Street Blues. It’s not even close. Whoever prepared this chart has done the interpreting for you, and it’s a very loose, boozy interpretation. And as a reference it is pretty much useless: the rhythm doesn’t match the unprinted lyrics (eg. the 4th measure of B) and there’s no indication that the A section is a call and response.
Not every older tune was embellished like this; most older standards were transcribed with their original melodies and minimal deviation from their regular chord progressions. This doesn’t mean the charts were perfect. Take Rodgers and Hart’s I Could Write A Book, from Pal Joey:
The tune is marked as a Ballad, but it was written as a medium-tempo bounce, and is almost always played as a medium- or up-tempo swing. And even though it says I Could Write A Book is a ballad, the Real Book didn’t recommend any of the great ballad recordings of the tune; Instead it recommended a single recording: Miles Davis’ recording from his Prestige years, which was recorded at a pretty fast tempo. This tune is a great ballad, and a great burner, and a great mid-tempo tune, but it doesn’t do anyone any good to call a tune a ballad and recommend an uptempo recording on the same page.
It would be understandable that a book written by jazz musicians would have mistakes or inconsistencies when it comes to the old popular standards and showtunes. But The Real Book didn’t just get the old standards wrong. It got many jazz songs written by jazz musicians wrong, too. A perfect example of this Blue Train, or “Blue Trane,” as it was famously mis-titled in the Real Book. Blue Train is a classic tune, the title track of one of the most enduring LPs of its era. Here is its page from The Real Book:
Here is the original recording:
It shouldn’t take a seasoned musician more than a moment to notice several problems. For one, the title of this song should be Blue Train. Blue Train is the name of the song and the name of the album it appeared on. Also, the original recording song was performed in the key of Eb, not C, and even though the melody is minor, the solos happen over a standard jazz blues, which means the first chord of the solos should be notated C7, not C-. Even if you accept C minor as the key of the tune, there are all sorts of invented harmonies in the Real Book’s Blue Trane that have no correlation to chords played on the original Blue Train recording, including the phantom F-7 Bb7 notated under the pickup measure and the completely arbitrary A-7 D7 in measure 8. Even the melody is incorrect: compare measure 8 of the original recording to measure 8 of “Blue Trane” in The Real Book. Assuming a tonality of C minor, that pickup riff should be notated G – Bb – Eb – C – Bb. Most importantly, The Real Book completely disregards the “dun — dun” response figure that defines this song, even though rhythmic figures like that are indicated for other songs (cf. Maiden Voyage) and in some cases the arrangement of a tune is completely written out (cf. Peaches In Regalia.)
The Sixth Edition fixes all of these problems, and dozens more, so in addition to being legal it’s a much, much better reference than the bootleg Real Books. But by fixing the biggest problems in the book, they made certain tunes (like Blue Train) incompatible with the earlier edition, so you can’t just bring your new book to an old book party. And even though it was thoroughly edited, the Sixth Edition doesn’t fix all the problems that were present in the original books; there are still a few head-scratchers and face-palmers in there. For an example, let’s consider the chart for Orbits, a Wayne Shorter tune written for the Miles Davis Quintet. Here is the original recording of the tune on the album Miles Smiles:
Orbits is sort of a freeform tune where the harmony is implied by the relationship of the melody and the bass, and where the melody itself is sort of a freeform thing. There’s no definable harmonic progression, and on the original recording, Herbie Hancock doesn’t play a single chord. Wayne Shorter has recorded Orbits a few times since this original recording, and every recording is extremely different from the others. I have never spoken to Wayne Shorter about this tune, but I would bet anything I own that this is not what he wrote:
I have to say that whoever transcribed this chart for Orbits tried hard to make it fit into bar lines and chord notations. That half-note triplet? That quarter-note quintuplet? Those Dmaj7(#5)s near the end? Commendable! But there aren’t any chords being played during the melody on the recording, so where did The Real Book’s chords come from? Did the guy transcribing just make them up? On Shorter’s most recent recording of the tune (Wayne Shorter Quartet: Without a Net,) Danilo Perez plays the second half of the head alone on piano, with chords underneath, and it seems to be mostly quartal harmony. It’s hard to tell exactly what keys he’s pressing because of all the overtones on the grand piano he’s playing, but here is a transcription of what I hear for the phrase correlating to measures 24 – 28 in The Real Book:
Notice that the chords from this transcription do not correlate to the ones in the Real Book. The biggest difference is with that second measure, notated in The Real Book as F-7. The chord played on the recording - A white-key quartal harmony with an A natural in the bass voice – is pretty much the opposite of F minor 7. The other chords don’t match The Real Book’s changes, either, but it’s possible to argue that they’re just hyper-sophisticated root-less inversions. But I would think that since this is is transcribed from a Wayne Shorter Quartet recording, the truth is probably that either the quartal chords played by Danilo Perez are the ones intended by the composer, or that the harmony is intended to be interpreted freely. Either way, this Sixth Edition Real Book chart is not a good reference or lead sheet for Orbits.
You might say I am being too harsh with my criticism of The Real Book, and you might want to remind me that most of the tunes in it are mostly accurate, and that it was much better than what else was out there when it was first compiled in the 1970s. You would be right that it does get a lot of common tunes right, like All The Things You Are, Cherokee, and Footprints. And it sure beats a lot of other fake books from the era, such as The Jazz Fakebook, which includes this practically unrecognizable transcription of Airegin:
But I don’t think I’m being too harsh. The Real Book is the single most common gig book for jazz musicians, yet way too many tunes in The Real Book are inaccurate or unnecessarily complicated. This is not to knock on the kids who put The Real Book together and the folks who continued to edit it through the years. It’s very impressive when you think about what they had to work with. It’s also the book I was given when I announced I wanted to learn to improvise on the trombone, so I’ve definitely spent a good amount of time with it. But it’s 2014, and The Real Book is not good enough anymore.
You’re probably thinking: Okay, Mr. Smartso. You want me to ditch my Real Book? What do you recommend I replace it with? Well, like most things in life, it comes down to your individual needs. If you’re just looking for accurate lead sheets, and don’t care about the legality of what you’re doing, there’s a nice collection of accurate lead sheets at BigJazzBook.ru. They don’t all have lyrics but most of the tunes are there, and for some tunes there are lead sheets from multiple sources. If your main use for The Real Book is to learn tunes, I recommend you visit learnjazzstandards.com to explore the resources they have available for you. If you’re looking for a straight-out replacement for The Real Book for gigs, etc., I highly recommend getting a copy of The New Real Book, which has been around for a long while now. It’s widely available, is easy to use, contains lyrics, has tunes in their common keys with original and alternate changes, and is well edited and annotated. And if all you want is a quick chord chart to practice with or to read on a gig, there’s an app for that.
If you are a frequent Spotify user, you’ve probably heard the ad that says “Piracy is so last year. Every time you listen to music on Spotify, you make money for the rightsholders and artists.” If you haven’t, you will; it is aired about once every two hours.
I am a frequent Spotify user, and I think it’s a fantastic service, offering free access to an ocean of recorded music, including recordings that are hard to find in record stores. It has revolutionized the way that people consume music and will likely be around for a long time.
But Spotify is a young product and a young company, and Spotify’s claim that it generates revenue for artists deserves thorough scrutiny. Does listening to music on Spotify really help support your favorite artists? Is Spotify really a better distribution channel than the best illegal filesharing services?
The short answer to both of these questions: Sort of, but only barely, at least right now.
Until Spotify came around, the best digital music distribution service had been Napster, the short-lived but rabidly popular filesharing service that let users share their entire digital music library – for free – with everyone who was logged in at the same time. This provided users with a virtually limitless music library. It was wild. At one point, I had 22 days worth of music downloaded to my college computer, including rare Beach Boys outtakes, out-of-print jazz records, and new music that was not available at the mainstream record stores. But Napster did not generate any revenue for rightsholders on its own, and was successfully sued by the Recording Industry Association of America and shut down in 2001.
Napster’s longest-lasting impact on the music business is that it showed that online distribution of digital music was the future of the industry. Several online services came about in Napster’s wake, but it wasn’t until Apple introduced the iTunes Store that consumers had a stable, safe, industry-sanctioned online music distribution service that rivalled Napster in its ease of use and breadth of content. Like Napster, iTunes Store users had hundreds of thousands of individual tracks they could search for and download. But unlike Napster, a user had to pay about a buck for each download. The success of iTunes’ pay-per download model created a swamp of copycat services including Rhapsody, eMusic, and a pay-service run by Roxio that was given the Napster brand after Roxio aquired it in bankruptcy liquidation.
Spotify operates as a bridge between the two models. Users can have free, ad-supported access to stream the entire Spotify catalogue, or they can pay about $10 a month to be able to download an unlimited number tracks from Spotify to their computer. Tracks downloaded through Spotify can’t leave the Spotify application, so there’s no risk of them being distributed any further, and rightsholders are paid a nominal rate every time someone plays one of their tracks using the Spotify service. This rate is exponentially less than what would be received for one iTunes download of the same track, but Spotify still has the full support of the Recording Industry Association of America, meaning it’s legal and it’s probably here to stay.
To give you an idea of Spotify’s payout versus iTunes and similar services, here’s the initial revenue report for Don’t Punch Your Friend in the Head, a song I wrote for my band Ramforinkus that we quietly added to several internet music services last April.
Since my band doesn’t have a record label or any other stakeholder taking a cut of the revenue, we receive the entire payout from each service:
iTunes (UK/EU) ~$1.22 / sale
iTunes (US) ~$.76 / sale
eMusic $.40 / sale
Rhapsody $.01 / stream
Spotify $.00378 / stream
So if you live in the US and purchased a copy of Friend in the Head on iTunes for 99 cents, we would receive about 77% of the sale. This could add up pretty quickly; if we end up selling 9,900 copies of our song on iTunes, we’ll receive about $7600.
Spotify has a completely different business model than iTunes in that it is a streaming music service, not an online store. As such, it pays rightsholders based on individual plays, not downloads, and its current rate is a little less than four-tenths of one cent per stream. That means an individual user would have to stream our song two hundred times in order for my band to receive the same 76-cent payout that would come from a single purchase on iTunes. Although four-tenths of a cent may be a fair rate for a single online stream, four-tenths of a cent won’t add up in any meaningful way until our song receives hundreds of thousands of streams, and my guess is it is unlikely that someone would listen to any individual track by any independent artist on Spotify enough times to match the revenue of a single iTunes purchase.
For the record: Four-tenths of a cent per stream is a marked improvement over the way artists were initially compensated by Spotify; Lady Gaga famously received only $167 after her song “Poker Face” was the first track to hit 1 million streams on Spotify in 2009, which amounted to 1.67 thousandths of a cent per stream.
This figure – .38 cents per stream – shocks a lot of people at first because Spotify’s entire business model rests on the fact that it’s supposed to generate revenue for rightsholders. Indeed, Spotify vigorously refutes the idea that they are anything other than the next great revenue source for artists. In a recent interview, a Spotify spokesperson said “Spotify is now generating serious revenues for rights holders; since our launch just three years ago, we have paid over $100 million to labels and publishers, who, in turn, pass this on to the artists, composers and authors they represent. Indeed, a top Swedish music executive was recently quoted as saying that Spotify is currently the biggest single revenue source for the music industry in Scandinavia.”
That claim is certainly impressive, but there’s a serious disconnect here between what Spotify says and what artists end up receiving per-play on the service. Most major labels keep a considerable cut of that less-than-four-tenths-a-cent payout, and independent artists who release their own material generally don’t attract the number of listeners it would take to make Spotify a better revenue generator than iTunes.
In fact, I might argue that fans who pirated Don’t Punch Your Friend in the Head could do more for us than had they used Spotify to listen to it. If 103 people had pirated Friend in the Head instead of streaming it through Spotify, those 103 people would possess a digital copy of the song, which means there are dozens of extra ways they could pass it along to others. They could burn it to CD and could email it to their friends; They could listen to it using any audio player, in any setting, and could easily transfer it between devices; They could convert it to any format, they could add it to a video, they could sample it, they could make it their ringtone, they could play it as house music at a theater or club, and they could broadcast it on their radio show. By listening to Friend in the Head in Spotify instead of pirating it, those 103 people could have shared the tune with other Spotify users and could have added it to their Spotify playlists, but there’s not much else they could have done that would help the song reach new people since music on Spotify can’t leave the Spotify application, and you can’t take the Spotify application with you without paying $10 a month for it. So as an artist in several independent bands, I don’t see how Spotify is really better for us than an equally accessible piracy channel would be.
I don’t mean to complain about Spotify as a service. Spotify represents the future of music consumption. We are a culture of convenience, and nothing is more convenient than immediate, cost-free access to every song you’ve ever wanted to hear. And I was always okay with small-scale music piracy, whether it meant taping songs off the radio, ripping a library CD to your computer, or making mix CDs for friends, so I am not writing this article to complain about music consumers who do not pay for all of the music they listen to. I am not only happy that Spotify is an option for my own music but I also use it several hours a day, both for fun and for work. The problem, as I see it, is that Spotify boasts that they have surpassed piracy and that you, the Spotify user, are supporting artists by using their service. I find this hard to swallow because they’ve released no data or projections to support these claims and their defense of their payout model is always presented in general terms. Spotify should not be advertising that their listeners generate revenue for artists; this could lead to someone choosing to listen to a song on Spotify instead of purchasing it on iTunes with the idea that they were supporting the artist either way. In reality, it takes nearly 300 Spotify streams for one member of an independent band to be able to buy a cup of coffee at a bodega, and probably many many more times if an artist has a record label.
If Spotify wants to change my mind, they’ll need to publicly release their payout model, and I’ll need to see concrete, verifiable data that can confirm that Spotify users listen to individual songs at a rate that will eventually surpass iTunes revenue. Until that happens, I will continue to look at Spotify as a free music service, like Napster and Grooveshark before it, and it should be known that the best way to support your favorite artists is to purchase their music at full-price – especially their self-released material - and to go to their shows when they’re in town.
Update (12/2012): In response to a few comments, I’ve expanded this article and have clarified some of the language. The underlying themes of the article are the same now as when it was first written. The original version of this article is available here.
Remember Hulk Hogan? In the 1980s he was the world’s most popular professional wrestler. At the height of his fame, he had his own TV show, his own cereal, his own record deal, and was cheered wildly by sold-out crowds everywhere he went. To pre-teen boys in the 1980s, Hulk Hogan was Oprah Winfrey, The Beatles and Batman in one package. His character was wholesome but strong. He wrestled with integrity and made the bad guys pay. For almost two decades, he was the most consistent good-guy wrestler, fighting for the fans and the forces of good even as other wrestlers changed allegances. But after taking a few years off to pursue a failed movie career, and having mounted a less-than-meteoric comeback in the mid 1990s, his character did something completely unexpected.
You see, there was this pay-per-view wrestling match in 1996 between three “Good Guys” and two “Bad Guys.” On the surface that seems uneven, but the Bad Guys said they had a third man, and refused to say who he was. Despite being out-manned, the Bad Guys cheated their way to a stalemate, and all five wrestlers ended up knocked out on the ground. (Watch the video now if you want to avoid the spoiler.) Just as the referee began counting everyone out, Hulk Hogan entered the arena to thunderous applause. At first it looked like he was there to support his friends – the good guys – but to everyone’s surprise, instead of laying the thunder upon the bad guys, he delivered two crushing leg-drops on the Macho Man, a good-guy and his one-time friend. After high-fiving the “bad guys,” Hogan threw the referee out of the ring – a classic Bad Guy move – and delivered one final leg-drop upon the Macho Man before picking up the microphone and berating the audience (an even more classic Bad Guy move.) The announcers couldn’t believe it. No one could believe it. Hulk Hogan was supposed to be the ultimate good guy. Within a minute, he became the ultimate bad guy.
In wrestling, this phenomenon is called a turn: a good-guy suddenly becomes a bad-guy, or a bad-guy inexplicably becomes a good-guy. (Google “heel and face” if you want an in-depth analysis.) It’s a frequent occurrence, and most pro wrestling characters turn multiple times over the course of their careers. The best pro-wrestling turns are both instantaneous and absolute: once a good guy has turnedheel, he immediately assumes all of the characteristics of his new persona. There is always a justification given for a heel turn – usually a wrestler is fed up with something backstage, or he feels the fans don’t respect him enough – but the reasons behind a face or heel turn are always flimsy and end up being dropped as soon as it’s convenient. If done well, by the next time he’s on TV, a turned heel should seem like he was never a good guy at all, and a turned face should be an instant fan favorite.
Of course, Pro Wrestling is not a sport. It’s a scripted spectacle, one which thrives on sensationalism and immediacy. It doesn’t matter what each character did last week; the announcers will always let you know what the current storyline is, and each character’s back-story is constantly modified to fit whatever narrative is being pushed at the given moment. Heel turns and other sudden changes in a wrestler’s storyline are just part of the Pro Wrestling experience, and most people lose interest in Pro Wrestling once they realize how fake it is. Hulk Hogan’s heel turn was epic, but completely inconsequential.
A similar phenomenon occurs in politics: the flip-flop. Like a pro-wrestling turn, a politician commits a flip-flop when he not only changes position on an issue, but does so brazenly, with little regard for his previous views. Like a “good guy” or a “bad guy” pro-wrestler who has just turned, a politician who has flip-flopped will usually assume his new position without sufficiently justifying his change of mind. When pressured for an explanation, he usually jumps through hoops to show that his new opinion doesn’t conflict with his old opinion, or he claims that he has “always” had his position, despite a mountain of evidence to the contrary.
The recent excitement over the individual health insurance mandate has created a wave of flip-flop allegations regarding the major 2012 presidential candidates. On the surface, these allegations appear correct; everyone involved, it seems, had the opposite opinion one election cycle ago. Newt Gingrich and Mitt Romney were both strong advocates of an individual healthcare mandate until they each switched their position on the issue at the start of their current presidential campaigns, while President Obama was firmly against the individual mandate during his first presidential campaign, and was skeptical of its constitutionality even while the “Obamacare” legislation was being developed. Politicians and pundits love calling each other out for their flip flops; like pro wrestling announcers, they operate with the two-dimensional mindset of a playground bully. You are either one thing or you are something else, and if you change your mind you have clearly flip-flopped.
But in the case of the individual mandate, there are stark differences between the way that Obama and his Republican challengers are handling their new positions on the issue. Obama’s position barely qualifies as a flip-flop, while Gingrich and Romney are in full-on Pro-Wrestling mode.
Don’t believe me? I have the video to prove it.
In President Obama’s case, his fundamental message has remained consistent despite having changed his mind regarding the individual mandate. His prior criticism of the individual mandate was that penalties would drive up costs to some uninsured citizens. His current support of the mandate is also within the framework of keeping costs down for the uninsured and underinsured, and he’s doing a great job of explaining why the mandate is a good idea.”There are only two ways to cover people with pre-existing conditions,” Obama said at an AP luncheon on Tuesday. “One way is a single payer plan, where everybody is under a single system, like Medicare. The other way is to set up a system in which you don’t have people who are healthy, but don’t bother to get health insurance, and then we all have to pay for them in the emergency room. We have to make sure those folks are taking their responsibilities seriously.” This is a change of policy, but is not a flip-flop, because he still embraces his previous position and clearly explains how the individual mandate is the next-best thing.
But what of Romney and Gingrich? That last point made by Obama – that the individual mandate is needed to make sure that everyone is playing fairly in the healthcare market – is hauntingly similar to a speech given by Newt Gingrich in 2009 on behalf of The Center For Healthcare Transformation, a lobbying group he founded in 2003. “We believe that everybody should have health insurance,” he said. “We would not allow people to be ‘free riders’ failing to insure themselves and then showing up in the emergency room with no means of payment.” It also echoes Mitt Romney’s position during the 2008 presidential debates, in which he said “I like mandates. They work.” He continued: “If somebody can afford insurance and decides not to buy it, and then they get sick, they ought to pay their own way, as opposed to expect the government to pay their way.”
Seeing that both Gingrich and Romney were fully in support of the individual mandate as recently as one election cycle ago, it is extremely noteworthy that they not only changed their position on the issue within a few months of becoming candidates; they strongly railed against it as soon as they faced political pressure from their party’s current base. “A mandate is clearly unconstitutional because it means that congress could require you to do anything with your money under any circumstance,” Gingrich said to ABC news this past December. When he pressed on why he supported it as recently as six months before the interview, Gingrich responded “there was a time, in opposition to Hillarycare, the Heritage foundation and lots of folks supported it [the individual mandate.] The more we looked at it, the clearer it became that it would lead the politicians to redesign the entire system to support the mandate.” This is completely counter to any sense of honesty. Throughout the entirety of the 2000s, and as recently as an appearance last May, 2011, on Meet the Press, Gingrich was an active advocate for the health insurance mandate. In fact, in that Meet the Press interview, he minced no words in his support of the mandate: “I am for people, individuals–exactly like automobile insurance–individuals having health insurance and being required to have health insurance.”
So what happened to Newt Gingrich between May and December 2011? This video explains everything:
In the clip, you can clearly see Newt Gingrich tried his best to resist the Tea Party, but was too overpowered by their insistence and finally gave in. Once he gave in, the Tea Party hoisted Gingrich in the air and he let out a primal scream of acceptance. It was a powerful and chilling moment. I’m glad they got it on video.
And what of Romney, the man who was not only an advocate of the individual mandate, but made it the centerpiece of his own health care plan while he was Governor of Massachusetts? “There’s a big difference between what we did and what president Obama’s doing,” Romney said on Fox News last month. “We said people had to take responsibility for getting insurance if they can afford it, or paying their own way. No more free riders. And we solved this at the state level. Not a federal plan, but a state plan. This is a federalist nation. States should be able to solve their own problems.” Romney repeats this distinction every chance he gets: his Massachusetts plan is fundamentally different than Obama’s, and his was a state plan, and States have the right to determine their own health care. This is a pretty strong defense, until you consider that Romney strongly urged the president to model the national health care system on his Massachusetts system in a 2009 op-ed, and explicitly mentioned the individual mandate as one of the aspects of his plan that worked: “Getting every citizen insured doesn’t have to break the bank,” he said. “Using tax penalties encourages ‘free riders’ to take responsibility for themselves rather than pass their medical costs on to others.”
Romney now vows to “stop [Obamacare] in its tracks on day one” and attacks the president, saying “as I look at this administration I see Obamacare as one more example of a president pursuing his attack on economic and personal liberty.” Forget that Obamacare is basically Romney’s plan, and that he clearly would be in favor of this plan if it were proposed by a Republican. For Romney, this issue is no longer about affordability and covering the uninsured. It’s about freedom! It’s about resisting a government takeover! It’s about red-blooded, patriotic Americans fighting a clandestine Communist threat! As disingenuous and short-sighted as Romney is being, you have to at least admire his tenacity and his fire on the stump:
What power and umbrage! Not to mention face-paint! If that’s how Candidate Mitt feels about Obama, think of how President Mitt would stick it to the Iranians and the Russians come Summerslam!