Interview with David Herlihy
For podcast release Monday, November 3, 2014
KENNEALLY: In the music industry, the calls for transparency come from many angles. Musicians want transparency in accounting and royalty distribution. Indie labels want more information about negotiations with streaming services and others. Songwriters, too, worry about the lack of transparency in direct deals made between publishers and platforms.
Welcome to Copyright Clearance Center’s podcast series. I am Christopher Kenneally for Beyond the Book. In Washington last week at the 14th annual Future of Music Policy Summit, musicians and music industry executives shared a stage with attorneys and entrepreneurs to discuss how a diverse musical culture can flourish in the age of YouTube and Spotify.
In such a discussion, David Herlihy can play both melody and harmony, representing the music making and the policy making. As front man for Boston’s O Positive rock band who recorded for Epic Records as well as indie labels in the 1980s and early 1990s, Herlihy made the transition from regional favorite to national act. Later, he made another transition to practicing copyright and intellectual property law, and to lecturing as an assistant academic specialist in the music department of Boston’s Northeastern University.
For the Future of Music Policy Summit, David moderated the panel Whose Transparency Is It, Anyway? And he joins me now on Beyond the Book. Welcome to the program, David Herlihy.
HERLIHY: Thank you, Chris. Thanks for having me.
KENNEALLY: Well, looking forward to chatting with you, David, because it kind of takes us out of our element here, and we have invited you on to a program mostly about books and publishing and copyright to help shed some light on what musicians have in common with writers, and certainly the ways these days all media seems to be one media. I think this should be interesting to hear about. And, you know, what I say about book authors is if you scratch one, you’ll find someone who has a problem with a publisher. So I have to ask you first, David, how true is that in the music business today, and how much does it have to do with opaque business practices?
HERLIHY: Well, I think there is certainly a lot in common between musicians and sort of traditional authors in terms of relying upon these intermediaries, whether they be record labels or publishers, and feeling as if there’s not enough synergy between them in terms of helping get the work out to the public. And I often feel there’s been kind of an exploitation common to both realms, and I think exploitation has both a negative and kind of a practical connotation.
In the publishing business, exploitation is a positive in the sense of a bottom line. You’re exploiting a work to turn into an account and to make money from it. But I think exploitation also has that feeling where you’re being sort of almost like a sharecropper or something, where you’re kind of creating this work – you can’t control what happens to it. You don’t know how you’re getting paid from it. And a lot of times I think creators feel as if they’re driving the train, but they’re sort of in the earnings caboose where they don’t really feel as if they are sharing in the success. And I think a lot of times, they feel as if they are being exploited in the negative sense of the word.
KENNEALLY: Well, indeed, and certainly the transformation of the media business and the music industry in particular really has of course been led by technology. And technology has a way of throwing light into corners that previously were fairly dark. And I suppose that’s true of the music business, as well. So when it comes to transparency, what are the goals that songwriters have, that musicians have? What are the things that they’re hoping to see that they couldn’t see before?
HERLIHY: Well, I think in the sort of analog era, books would be shipped or records would be shipped, and you wouldn’t really know who the end user was. You wouldn’t know how you were getting paid. There would be these reserves against returns, and you had all of these sort of mechanisms that were in place that were sort of a reaction to the reality of the physical world, and a lot of that is completely changing now.
We’re moving away from a business that has its roots in tangibility. I call it like a thingy-ness. The music business, like the book business, was things. You’d manufacture things and you’d sell things, and people would go to the store and they would buy these things. And there was a definite separation between the author and the consumer of these works. And because of that tangibility, there was this sort of dark corner aspect to it where you wouldn’t really know what was going on.
Just by way of example, in the music industry, I signed a contract with Epic Records, and they would pay me a royalty that was based upon records that were shipped and paid for and not returned. And there’d be all of these mechanisms like free goods you’re not getting paid on because those weren’t sold, and they would have reserves against returns, and they would only pay you on the basis of 85% of sales, and all of this stuff that really separated you from what was going on.
And I think now with technology, you have an immediate way of knowing exactly what’s happening everywhere, and so it’s easier, I think – as you point out, it shines a light on all the corners of what’s going on. And so transparency is sort of a code word for just understanding what’s happening, and sort of sharing in the success of this, and a lot of the old analog mechanisms are still in the way of enabling someone to really understand how the system is working and how you can get paid on that fairly.
KENNEALLY: Right. So it’s about having the information in a timely fashion, in an accurate fashion, and I suppose this works to help free musicians from reliance on some of these middlemen, but it may also enable the middlemen to be in a better, stronger relationship with their artists. Does that seem fair?
HERLIHY: Well, it could, but I think in a way, the technology sort of threatens the middlemen. And I think that is – there’s been a transition away from selling someone something to having a relationship with that party. And I think that there’s a lot that can be done directly between the creator and the consumer that, on the one hand, is refreshing and a direct connection, but then on the other hand also requires time. And a lot of creators don’t necessarily want to be involved in the minutia of the business connection. They just kind of want to create.
But at the same time, there is this ability to directly connect to your audience, and I think it’s just – the intermediaries, I think, in some ways benefit from the opacity that was in place in the prior century, and now it’s easier I think to connect directly, but then it also takes more time for the artist to spend that time, to cultivate that direct connection. And the more time you’re spending learning about your audience and where they live and what they want – you’re not writing. You’re not creating. So it’s very much of a double-edged sword.
KENNEALLY: Absolutely, and we hear the same complaint from book authors who would rather be spending time writing rather than, I don’t know, posting to Facebook –
HERLIHY: Right.
KENNEALLY: – and Tweeting about their various activities.
HERLIHY: And I think that’s true. There’s also, I think, something about the mystery – like a lot of my favorite artists weren’t transparent and did have that element of mystery, and you didn’t know about what they were doing, and you didn’t feel as if they were necessarily available, and there was something kind of alluring about that mystery. And I think now you sort of have to figure out what your voice is both as an artist as an entrepreneur, and how you are going to maybe present yourself in a way that’s consistent with your voice. And I think that’s a challenge now that people have about how much to disclose and how to connect in a way that doesn’t seem, frankly, a little desperate.
KENNEALLY: Well, indeed. Well, we are chatting right now with David Herlihy, who is an IP and copyright attorney based in the Boston area, a musician himself in a previous life with the O Positive rock band, and an assistant academic specialist in the music department of Boston’s Northeastern University. And David, at this panel for the Future of Music Summit that you moderated, you had a variety of people appearing and really coming at it from a number of surprising angles. So you had someone – an attorney who had worked in a previous life herself – Tanya Marie Curcio, who had worked for a variety of record companies and record producers. We also heard from Waleed Diab, who was a senior counsel at Google, and several others, some entrepreneurs, too. Can you summarize some of the highlights of that discussion at the Future of Music?
HERLIHY: Well, yeah. I think Jim Griffin is a real shining light of what he considers to be the future of the content industry. And I think one of the things that Jim is particularly pushing for is this idea of a globally unique identification database, where every work has not a name associated with it, like you know, My Song by David Herlihy, but a number. And so therefore, it just can be referenced across languages, across different territories. And his goal is to actually have a shared database that then can be utilized by all kinds of companies that will enable anybody to find out who owns the rights, how to pay those people, and to create an agreed upon format for this kind of information – a real transparency at the creation level, so you can know who to pay.
But then one of the things that Jim said which I thought was interesting – they were discussing what should be in this global database of creative works. And one of the things that Jim said was, well, you should have the fixation date, because the fixation date would let you know how long copyright would last – whether it’s a corporate work or a work of – not a work made for hire. But Jim was of the opinion actually that some owners would not want to have a fixation date in there, because then you would be memorializing this date at which this work goes into the public domain, which I thought to be – like that’s crazy, because it’s 95 years, or a life plus 70, that you think that would afford a content owner plenty of time to recoup their investment from that.
But there is kind of an inherent desire even at the most base information level to not disclose what’s going on. It’s like the Happy Birthday Warner Brothers scenario where that song is in public domain by most accounts, but yet the publisher tries to maintain that they have the right to license that. So there is this inherent kind of desire to keep the cards close to the vest, that I think even is a tension within creating this more transparent ecosystem.
KENNEALLY: Well, you were speaking before in the days of product, the various intermediaries had an important role. In the world of digital, there’s at least one intermediary with a very prominent role, and that of course is Google representing YouTube. And so you had Waleed Diab there, and they had done a lot of deals. They’ve really been pushed into some of them, of course, but they really have gone a long way towards licensing the music that now runs on YouTube. What did he have to say about the current state of affairs, and how well is Google and YouTube received in the music community?
HERLIHY: Well, it’s interesting. A lot of people bash Google, and I think a lot of people – but I think Google is actually trying to pay content creators. They have actually a fairly robust content ID system that will identify content that’s uploaded to YouTube and that will actually compare that content to their database, and then they will try to give the content owners a chance to either have the content removed or monetize that content.
I think actually Google’s trying to be a good citizen, but at the same time, they have this mass digitization project where they’re seeking to digitize every book ever made, and you know, the judge in New York said, well, actually that’s a pretty momentous undertaking for the public good, but there’s also Google’s private interest in doing that, because then they can monetize that, and they’re not really doing that with the permission of the content owners.
So there’s this inherent conflict between this notion of exclusive rights and the notion, I think, of the larger purpose that copyright is meant to serve, which is to benefit society. But any attempt to do something that’s going to say create this universal library or the celestial truth box is going to sometimes do this at the expense of an individual content owner’s permission. And so you have this tension between the property interests of the content owners versus the public interest in having this massive catalogue of content to be accessed and the educational value of that.
And copyright has always been about reconciling these different interests, and the property interest versus the public interest versus also the idea of fostering innovation and allowing companies to come on later on to the scene and do something easily without having to go through myriad micro-permission transactions, which will blunt innovation. So it’s really a very difficult – I guess it depends on what lens you’re looking at it through.
As a user, I love YouTube, and to be able to go there and to access any kind of recording, any kind of show, is so vast – it’s like a library on steroids. And that’s a wonderful thing, but on the other hand, if you don’t want your content in there or if you’re not getting paid from it, then I think you have a legitimate concern about how your content is being enjoyed by consumers. And so I think perhaps the focus for copyright, at least to my mind, needs to be less about permission and more about remuneration and getting paid for the larger purpose of facilitating a very content-rich society.
KENNEALLY: Right. And you mention remuneration, and I wanted to ask you as a last question, David – the new player on the scene, or at least the latest arrival, are these various streaming services. And there have been complaints about the fairly paltry mu – remuneration that they offer to musicians. Did that come up in any of the conversations? And just how transparent are those services, such as Spotify?
KENNEALLY: I mean, that’s the thing. You have these major labels, and actually, the major labels have an ownership stake in Spotify. And so you have the labels licensing to a company that they actually own a stake in. And so there’s already something – sort of this potential impropriety of being on both sides of the fence, and then how do these deals get structured when the labels are on both sides of the table, and then how much of the revenue that the labels receive actually accrues to the benefit of the actual creators? There’s a lot of opacity there, and I think a lot of frustration there.
But I think it points to a larger issue, is what is the value in these kinds of deals? And I’ve talked in some of my classes about what I call the four C’s, which are credit, control, compensation, and community. And obviously every author wants credit, and even in the creative commons realm, everybody wants credit. So that’s a given. As an author you want credit. Compensation, of course everybody wants that, whether it’s an upfront payment or a royalty. Control? People want creative control, and obviously copyright gives you control.
But then there’s also this notion of community. Who are my consumers? Who likes what I do? And I think with Spotify, as much as I think people complain about what they’re getting paid, and they’re pining for the older days of a larger penny rate – I think that if you could know who your audience was as an artist on Spotify – if I had the contact information of people who were streaming my music, and I could connect with them directly or maybe make tours – I think if Spotify were more forthcoming with user information that could be opted in by the users, then I could connect with my fans, and I wouldn’t maybe be so frustrated about my micro-penny transaction if I knew that I could foster a relationship with someone who liked my work.
So I think we all have to focus on the larger ecosystem for society and for content, and be less concerned about the short-term remuneration. I think a lot of companies – you know, they’re publicly traded, and a lot of the executives get paid bonuses when they make quarterly payments on their stock price, but I think if we could realize that fostering a better ecosystem would be better for the content industry as a whole, we could do things that maybe wouldn’t be in the short-term compensation’s best interest, but would foster something larger longer term. Sort of like you could have a private little house that has fresh air, or you can try to combat climate change so that everybody could breathe more freely.
So I wish there could be a bit more of a holistic sense of feeding an ecosystem that would benefit everybody as a whole, and then I think perhaps we could bridge that gap.
KENNEALLY: Well, David Herlihy, recently returned from the 14th annual Future of Music Policy Summit, where you moderated a panel, Whose Transparency Is It, Anyway? Thanks so much for joining us on Beyond the Book.
HERLIHY: Thank you, Chris. I’ve really enjoyed it.
KENNEALLY: Beyond the Book is produced by Copyright Clearance Center, a global rights broker for the world’s most sought after materials, including millions of books and eBooks, journals, newspapers, magazines, and blogs, as well as images, movies, and television shows. You can follow Beyond the Book on Twitter, find us on Facebook, and subscribe to the free podcast series on iTunes or at our website, beyondthebook.com. Our engineer and co-producer is Jeremy Brieske of Burst Marketing. My name is Christopher Kenneally. For all of us at Copyright Clearance Center, thanks for listening to Beyond the Book.