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My latest Locus column explores what copyright expert Rebecca Giblin calls “The New Copyright Bargain” – a copyright system designed around enriching authors above all, rather rather than treating authors’ incomes as an incidental output of enriching entertainment or tech corporations. The column is called “A Lever Without a Fulcrum is Just a Stick.” Copyright is billed as giving creators leverage over the corporations we contract with, but levers need fulcrums.


In an increasingly concentrated marketplace, any exclusive rights that are given to creators are simply appropriated by corporations as a non-negotiable condition of the standard contract. Think of how samples could originally be used without permission (in the Paul’s Boutique/It Takes a Nation of Millions era), enriching old R&B artists who’d been burned by one-sided contracts.

(Image from Kembrew Macleod’s “Creative License” https://www.dukeupress.edu/creative-license)

Those artists experienced a temporary enrichment when paying for samples became the norm, but today, all contracts simply require signing away your sampling rights. The fight to require licenses for samples merely gave the labels yet another right to demand of their artists. Which means that anyone hoping to sample must sign to a label and pay for a license either to that label or one of the other three. Giving new rights to artists in a monopolized market is like giving your bullied kid more lunch money. It doesn’t buy the kid lunch, it just gives the bullies the opportunity to take more money from your kid.

After the “Blurred Lines” suit, labels have begun to fret about being sued over artists’ copying the “vibe” of another artist. It’s easy to feel smug about copyright maximalists being hoist on their own petards. But the end-game is easy to see: just make selling your “vibe” rights a condition of signing a record deal, and you transfer ownership of whole genres to the Big 4 labels.

What would a copyright look like that protected artists, rather than practicing the Magic Underpants Gnome method of:

  1. Enrich entertainment corporations;

  2. ?????

  3. Artists get more money

Any new bargain in copyright centered on artists needs to take account of the concentration in tech and entertainment, and create rights for artists that aren’t just creator’s monopolies to be scooped up through non-negotiable contracts. Measures like reversion (which lets artists in the USA claim back rights they signed away 35 years ago), blanket licenses (designed to pay artists regardless of whether they’re “rightsholders”), and restoring unionization rights are the key to paying artists.

Merely expanding the “author’s monopoly” does no good in a world of industrial monopolies: it just gives those monopolists more ammo to use in the fight to shift revenues onto their own balance sheets, at the expense of working creators.