Copyright, Live Performance, and Artistic Business Models
Monday’s post on Filesharing in Underdeveloped Nations: Let’s Take from the Poor and Give to the Rich linked to the interesting work that Alec van Gelder & Mark Schultz have done on the development of Nashville as a country music center and the lessons of that experience for the less-developed nations of Africa and Latin America.
Schultz wrote another article in 2009, titled Live Performance, Copyright, and the Future of the Music Business, in the University of Richmond Law Review, which addressed the assertion oft-made by free culturists that artists do not need copyright to protect recordings because they can always make their money through concerts, selling T-shirts, and other ancillary means.
The strength of the article is that it transcends the onanistic abstraction that characterizes so much of the legal literature on copyright (especially from the communitarians) and brings superior analytic and empirical tools to the inquiry:
The research on the economics of copyright has a great deal to say about business models that may allow the producers of copyrighted works to benefit from widespread copying. The cultural economics literature, very rarely discussed in United States legal copyright literature, has even more to say about the viability of live performance as an economic activity. This article draws lessons from these two bodies of literature to consider the viability of a live-performance-based recording industry. [Footnotes omitted.]
His conclusion is that of course live performances can support music at some level; no one doubts that. But it is a tough way to try to make a living, and:
The links between freely available music and the touring business probably are not strong enough to support the production of substantial recorded music. Moreover, the structure of the live performance business does not make it a promising cash cow. A handful of aging artists make the lion’s share of the money made touring.
Social norms regarding the copying, distribution, and use of expressive works (copynorms) are essential to understanding how copyright law affects society. By mitigating how stringently copyright owners and users actually enforce and observe copyright law, copynorms – whether those of librarians or file sharers – moderate, extend, and undermine the effect of copyright law. Yet, scholarship and public policy debates all too often overlook this phenomenon. This paper addresses this gap in the literature.