Future of Music Policy Summit 2002: Speeches

Comments of Jenny Toomey
Executive Director, Future of Music Coalition
Future of Music Policy Summit
January 7, 2002

Hi. My name is Jenny Toomey and I’m the executive director of the Future of Music Coalition. I’m thrilled to welcome you to the second annual Future of Music Policy Summit at Georgetown University’s Gaston Hall. Thanks to Georgetown University’s CCT Program, to the Washington Area Lawyers for the Arts, to our volunteers and to all of you for coming and making this such a great event.

Now isn’t this cool.

That’s what I said last year… when in the midst of historic changes, unpredictable mergers, multi million dollar law suits, controversies surrounding changes in copyright law and clear technological revolutions an idea began forming in a diverse group of communities. Old statements (almost dares) from the likes of Pamela Samuelson and Jim Griffin, Marybeth Peters and Chuck D were clues that a public conversation was beginning to take place. Out of that conversation a need was felt, and out of that need an organization was formed.

And in the spring of the year 2000, a punk rocker, a lobbyist (Michael Bracy) a lawyer (Walter McDonough), a technology expert (Brian Zisk), a student of economics (Peter Dicola) and a public policy expert (Kristin Thomson) got together with that same “hey kids let’s put on a show” mentality that is the origin of so much good in the world. Out of that dare, that need, that optimism, that curiosity, they/we managed to cobble together what turned out to be a rather startling two-day event. You could feel it in the air the night before at the Pho dinner that something remarkable was going to happen.

I felt that same feeling last night… I hope you can all feel it a bit right now. Because no matter what your outlook or perspective with regards to the complicated questions that surround music/technology, no matter how liberal or conservative you are, you have to admit that if last year’s event was cool, this is even cooler.

Last year was easy. MP3.com, Napster, and the RIAA ruled the headlines, many large music/tech companies were still independent and competing with the powers that be. Though the amounts were dwindling, there was still some optimism and venture capital to be had for the right idea.

More importantly, we weren’t at war (with other countries that is), our economy and our hearts weren’t suffering the losses of 9/11 and the repercussions of our own bombing campaigns on other nations. The music industry wasn’t suffering its worst year-end numbers in decades. We were in a far different and place a year ago when I stood on this stage welcoming you.

But look at this. You’re all here, even in the midst of all that you are all here.

And that is cool. Optimism, idealism and curiosity are always cool.

So, it’s been quite a year.

I could go over the list of events, projects and achievements that filled FMC’s waking hours but I’d rather not -- we’re not that kind of conference. Plus, you can read all about that sitting at home staring at our monthly newsletter if you like. Today, we’ve got something more important to do. Today we get to do the thing I like to believe we do best which is pulling the strongest minds together to discuss the most complicated questions facing this space with a clear eyed focus on the concerns of citizens and artists.

At the beginning of the day I want to remind you of that focus. This event puts the artists in the middle of the debate. It comps them into the room, it packs them onto panels and it asks them to perform between discussions (here of course I’ll remind you that when artists are playing here you should give them the respect and courtesy you would give them at any other musical venue. In other words, if you need to talk, please take it to one of the break rooms. But you know that).

Pulling artists into the middle of the debate is a difficult process, as many of you know, particularly when markets determine the value of the work that artists produce.

Over the last year I’ve been obsessed with one concept; that of artistic labor, both musical and technical.

I’ve been looking for ways to understand and quantify and guard the value of artistic labor in a market-driven economy. I’ve read, I’ve talked, I’ve thought…it’s hard work. I mean there are some good historic works -- Russel Sanjek and David Sanjek’s book Pennies from Heaven gives you a strong sense of how music has been valued in modern history. Robin D.G. Kelly’s essay “Without a Song” in the excellent new book Three Strikes takes and interesting look at the 1940s musician strikes, which constituted a huge blow to artistic labor movement as music unions lost a lot of power in the face of the technological revolution brought along by talking films. That book in particular reminded me of the complexities we face today with questions of digital downloads…so I don’t want to imply that a historical valuation of artistic labor isn’t essential for us to understand how to guard the value of artistic labor in the future. It is –absolutely – but in this quest that I was following to try to distill the value of artistic labor I was looking for something else. Something broader, something overarching that resonated with my core understanding of the value of music. It came to me in an odd place.

Those of you who know me know that I’m a documentary junkie. There’s nothing I enjoy more on a Saturday night than renting 5 documentaries and settling down to watch them all in a row. Well about a month ago I was watching the finale of a film called The War Room that, many of you know, is a documentary that follows ex-president Clinton’s first presidential campaign. Those of you who have seen the film will remember the scene near the end on the final night where the campaigners’ work is completed and George Stephanopolis, who’s run this campaign, asks his partner James Carville to stand up and say a few words to the campaign workers while they wait for the final tallies.

Well, Carville stands up and he’s consumed with emotion…he looks like he’s going to weep right there… and what he says is this:

“There’s a simple doctrine. Outside of a person’s love the most sacred thing they can give is their labor. Labor is a very precious thing you have and any time you can combined labor and love you’ve really made a match.”

It was the emotional center of the movie. Everyone gets it: next to love, labor is the most valuable thing you can give. When you give labor and love together, it’s even more valuable.

As a musician and someone who’s spent her adult life in the music community advocating for musicians rights I really connected with that sentiment. I understand the labor that goes into music, I understand the value of that labor and even more, I understand the value of the combination of labor and love which essentially is the key ingredient to all good music making.

That’s why it kills me to see how poorly our standard music business structures treat the majority of musician laborers every day.

How are these folks rewarded? With debt, with no access to the publicly owned airwaves, with the removal of their copyrights, without access to health insurance or pension plans or fair powers of negotiation.

Look, I am not naïve; I understand that in a market driven economy this sort of thing is always going to be negotiated through markets. I understand the bottom-line mentality. I ran a record label for 8 years.
It’s not a surprise to me that the market only has two categories for creators. Do you know what they are? You can probably guess the first one…the geniuses. Can you guess the second category? It’s “don’t quit your day jobs”.

Ironically enough, most of the musical geniuses I know never got a shot at quitting their day job. I guess the market just hasn’t figured out their genius. Actually all three of the artists that are playing our concert tonight are “don’t quit your day jobs” or maybe just “haven’t quit their day jobs.”

What about this term genius? The dictionary says that genius is “an exceptional natural capacity or intellect especially as shown in creative and original work in science, art, music…etc.”

Maybe that isn’t the best term, because while all of the above is implied with artists that we call geniuses, mostly what the market means when it calls someone a genius is that they are profitable. So what does it take to be a profitable musician?

Depends on whom you speak with. Danny Goldberg, for example, once of Geffen Records and now of Artimis Records and who will be on a panel later today, has been quoted as saying that through the major label system an artist needs to sell roughly 250,000 copies in order to break even. Ok…so how difficult is that? Pretty difficult I’d say, considering the fact that in 1999 less than one percent of the records released sold more than 10,000 copies. But what if I sold 250,000 copies outside the major label system? Tomorrow we’ll have to ask Ian MacKaye who’s done that how much money 250,000 generates for artists if they aren’t paying for radio and chain store positioning. I’d guess it’s a lot of money. My own band sold 14,000 copies of our first record and that was enough for us to live on for several years.

But for a second let’s go back to the geniuses or superstars or “real artists” whatever the market wants to call these profitable musicians.

The sad fact of the matter (and we all know this) is that oftentimes the distinction between genius and day job is just a matter of promotion cash. Pushing music through a bottleneck is an expensive proposition and one that is only made more expensive by increased consolidation in the marketplace we’ve seen over the past 10 years.

But I wonder what would happen is there was a balance in the marketplace to protect laborers and citizens from an environment where money and power will always determine the bottom line.
What would happen for example if Microsoft had paid every one of the over a hundred independent musicians who had their music synched up with the recent Xbox video game release? I wonder what would have happened if Microsoft hadn’t gone to these artists offering them a one-sided deal.
What they said was this: “Hey, we love your music. How about you sign away your rights and you’ll get great ‘promotion’ on our new game. If you don’t sign, there’s another dozen musicians behind you who will.” As you can imagine, almost all the artists signed the deal.

Do you think there is any reason why Microsoft didn’t offer the great “promotion but no payment” deal to the animators of the video game? What about the programmers -- do you think they were offered a “promotional deal” too? I’d guess not. I’d guess they got paid salary or commission or a consulting fee or maybe if their work was innovative and central to the project… it could even have been purchased outright. I wonder how much money you get paid when Microsoft buys your work?

And it certainly didn’t diminish the prestige and publicity these game designers had within the video gaming world that they were also paid for their labor. For those disciplines it wasn’t an either or phenomena.

So why is some labor valuable enough to pay for and some not? I have a theory and I can even give you a pretty good example. Several years ago the same company, Microsoft, built a CD-Rom encyclopedia called Encarta. In order to make the CD interactive they paid actors to read scripts. The actors union wanted residuals for these performances. Microsoft didn’t want to pay them and after a period of negotiation between the union and Microsoft…the actors agreed to get paid triple scale instead.

So what’s missing here?

There’s already a precedent in place that musicians should be paid for synching…

Just like there was a precedent in place for actors to get paid for reading…

There’s just as many out of work actors as there are aspiring musicians out there.

But only one group got paid, and it was the group that was organized to bargain collectively. What does the market think of this?

Dare I say it…I'm guessing the market doesn’t much care if freelance musicians can’t negotiate a fair deal with the world’s largest company.

I guess this means that if WE care that freelance musicians can’t negotiate a fair deal, we might have to do something else besides leaving it in the hands of this “hypothetically neutral market”.

Let me make it clear, I’m not faulting Microsoft. What they’re doing isn’t illegal -- artists sign away their synch and broadcast rights every day and clearly no one is stepping up to tell companies they can’t do this. The sad fact of the matter is that it’s been done, and can’t be undone. What do you think? Do you think it sets a precedent when Microsoft decides that music is valuable enough to use but not enough to pay for?

Sure looks that way.

The worst part is, imbalanced markets not only hurt artists and citizens -- it can hurt businesses. At the very same time the Microsoft was denying royalties to independent musicians through its Xbox project it was also engaged in one of the largest promotional campaigns in software history for a little program called XP. Many of you probably know that one of Microsoft’s main target consumers for the project is…can you guess…independent musicians and music lovers. So the company is spending huge amounts of money to connect with the musician community, they’ve tricked the software out with all sorts of functions that show they are responsive to a musicians’ needs and at the same time another arm of their company is setting the precedent that musicians’ labor is valuable enough to use but not enough to be paid for.

How responsive is that to the needs of musicians?

Not very.

Do I think this will hurt their launch?

Absolutely I do.

This is what happens when a supposedly free market isn’t balanced. It’s not hard to see that when large companies make their decisions in a void because they are too powerful to have to negotiate with citizens and creators they MAY make bad or unresponsive decisions.

If they control the pipeline or have a lot of money to convince their customers through promotion then they are being responsive when they clearly aren’t. They may manage to succeed anyway, but I would suggest, however, that that model is both incredibly more expensive and essentially temporary.
I went on a speaking tour this year that outlined my theory on how historical, legal, legislative structures have combined to artificially diminish the value of the majority of artists’ labors. I talked about industry consolidation at labels and radio consolidation and payola, I talked about rigged one-sided contracts, I talked about negotiations that strip artists of their copyrights. I talked about dimished play lists and shelf space and huge fees for adds and positioning. I think I made pretty good case that the dominant structure serves neither artists or citizens and in some cases not even the business people (A case supported, I would suggest, by this year’s poor record sales). And yet invariably at some point after I finished the speech, I was always approached by someone in the audience with some variation of “that’s the way things are.” If it was a law school I heard “ Yeah I was a musician but now I’m going to be a lawyer because that’s the way things are.” Or if I was in an economics program I heard “oh yeah I used to be a musicians, but now I’m going to be an economist because that’s the way things are.” And it was even worse if I was at a music school.

If I was at a music school invariably someone wanted the name of a fair lawyer -- this is after I’ve explained how over 90 percent of the folks that go through this system fail. I mean were I to tell you that by entering this room you had a 90 percent chance of contracting anthrax would you really be asking me about the best gas mask or would you just stay out of the room?

The worst version of this conversation that I had was at Temple University on a panel with a free marketer that tried to argue we had one of two choices: the first being letting the beautiful market which is the potting soil for our rich democracy determine everything, or 2) ban advertising, certain business practices, etc. He set out a pretty black and white picture…

What’s remarkable to me about his statement is not just how ahistorical it was. After all he was acting as if we live in a system that has never limited the power of the free market or more importantly -- that we live in a system that has never sustained huge financial and social benefits from limiting the power of the free market. (Anyone heard of the minimum wage? How bout child labor laws? Do you think the abolishment of slavery had any impact on the freedom of the market)? Come-on…we limit the market in all sorts of ways to protect the rights of citizens. To protect the rights of laborers…why not artistic laborers? It’s not a silly question.

But the thing that surprised me the most about his black and white statement was the idea that in the United States anyone can get away with saying you have only two choices. I mean, this nation was founded on choice. Walk up and down the supermarket aisle and tell me even one product where you only have two choices.

Once these panels begin you’ll probably see different choices offered from each and every panelist. It is in the clashing and melding of those choices that we will begin to find solutions for these difficult questions. Solutions that are far more gray than the black and white that some would suggest.
Thinking back over it, maybe I’m wrong. Maybe there are some situations where there really are only two choices.

I’d like to leave you with one example today.

It’s one my father put to me over dinner the other night at our favorite jazz club, Mr. Henry’s, watching the embodiment of the distillation of labor and love: our favorite jazz trumpeter Kevin Cordt playing where he plays every Friday night for tips in a fish bowl.

The question is black and white and it’s simple.

Should we accept the world as it is?

Or should we work to change it?

Thanks for coming.

Let’s see what we can change today.

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