The Music Industry, Indie Comics, and the Legal Profession

-- By DanielKenkel - 02 Jul 2012

The State of Creative Industries

The Music Industry

For the better part of the 20th century, the music industry was set up as follows. A young musician would set out to become rich and famous. If they were talented enough, or distinct enough, or attractive enough, or otherwise sufficiently marketable, a record production company would offer them a contract. From that point on until the contract ran out, the record company owned the recordings of the artist’s music.

No. There is no clarity in the contracts or in the surrounding rhetoric on whether the industry's terms constitute "work for hire" conveying ownership of copyright. The industry's representatives, such as RIAA occasionally imply that position, but they do not take it. In general, practice is to vest the copyright in a "music publisher" controlled by the composer or songwriter. What the industry's contracts undoubtedly give is an exclusive right of recording and distribution to the recording company. What it thereby "owns" is not only "the recordings" (which we might more accurately characterize as the "mechanicals," that is, the rights in the performance as recorded) but the exclusive right to record and distribute, at sole discretion, all of the signed musician's performances.

How did you research this question? You should have sourced your legal conclusion, a process which would probably have revealed to you the nature of your mistake.

Record companies would sign dozens or hundreds of musicians and, through the false promise of money and fame, force them to churn out music in whatever style was popular.

No. That's not how A&R worked, ever. That's library composition or performance, a completely different subset of the music industry. On what are you relying for your facts here? Nothing is linked to, and it's hard to tell whether your sources are misleading you, you are misunderstanding them, I am misunderstanding you, or you are making things up.

If a musician wouldn’t play ball, they could be removed and replaced with someone who would; no need to even change the name of the band.

What's THIS about?

The Comic Book Industry

The comic book industry followed a similar pattern, although obviously with much less fame and money on the table. Creators would sign with one of the big publishers, and for the duration of their contract, would own everything those creators produced. Editors would constantly force writers and artists to conform to the styles that the editors thought would sell comic books best. Job security was minimal; if someone was not producing what the company wanted them to, they were removed, and the company gave their creations to someone else.

Yes, this is a work for hire industry, that's correct.

The Legal Profession

In many ways, the law firm system is like the music and comic book industries.

Actually, it isn't, in these relevant respects. It's not a copyright industry at all. Ownership of the copyright in legal documents is an insubstantial question. The service provided is not contained in the value of the copyrights produced.

Despite the fact that lawyers may not think of themselves as “creative types,” Professor Moglen has made clear on several occasions that one of the most important traits a lawyer can have is creativity.

That's an irrelevant rhyme, not an analytic response.

Law firms are set up to sign dozens or hundreds of young lawyers to contracts, and, through the promise of a nice pay check, have them curb their creativity and put out exactly the work the firm wants them to. If they stray too far from the company line, they can be replaced.

"The company line"? What relevance has that? They can be replaced for no reason at all, as employees at will, which has nothing to do with contracted musicians, and is true only irrelevantly with respect to the employees (as opposed to contracted artists) working on work for hire terms for a comics publisher. Their professional obligation, on the other hand, runs to whatever client of the firm they may be representing on a particular matter, and is literally independent of their employment status at the firm. So what's the value of the comparison you are making?

I, for one, have no desire to be a part of such a system. So, in seeking an alternative to the law firm system, it may be useful to investigate what these other creative thinkers have done in their respective systems.

Once again, why is the confusion of contexts useful? Whatever you are doing as a lawyer, you're not doing what either a musician with a recording contract or a work-for-hire commercial artist is doing.

How Things are Changing

The Creative Types

For decades now, creators in both the music industry and the comic book industry have been trying to change the system. The Internet has been an invaluable tool on that quest. For musicians, social networking and iTunes have allowed artists to sell directly to their consumers. Kickstarter likewise has allowed musicians to bypass record companies while still producing records. For example, musician Amanda Palmer recently raised over $1 million on Kickstarter for her latest album [http://www.theverge.com/2012/6/2/3059284/amanda-palmer-million-dollar-kickstarter-finishes]. Similarly, though not a musician, comedian Louis CK raised over a million dollars selling his comedy album Live at the Beacon Theater directly to his fans [http://buy.louisck.net/news/another-statement-from-louis-c-k]. These artists show that it is possible to be financially successful without the backing of some giant corporation.

Not a particularly extensive or thoughtful summary of the changes in the music business, nor historically very useful, given that recording companies have existed for only a few decades, while the history of music-making is older than history.

Creators have also changed the comic book industry, although in ways different from the changes in the music industry, as there is much less emphasis on selling the product directly to the consumer. Rather, the change is more to do with the nature of the corporations. Increasingly, rather than signing on to a company for a stint and producing the work the company wants them to, a writer or an artist will create or find a project they want to work on, use social media or sites such as DeviantArt? to find collaborators, and then find a company to publish the book. Aside from the actual physical act of publishing the book, the publisher does little more than marketing to retailers, and quality assurance.

I'm sorry, I don't understand what basis there is to identify this as a change. What was Walt Kelly doing in the 1950s, or the egregious Charles Schulz doing in the 1960s? Might we ask about Hogarth, Cruikshank, or Nast? How about Durer?

What We Can Learn From This

Again, these industries are not perfectly analogous to the legal industry.

Indeed, we have yet to establish any basis for analogy at all.

Rather than fans, lawyers have clients. Rather than creating an album or graphic novel, lawyers by necessity can only work on what others would have them work on. So, lawyers cannot directly ape the systems being utilized by these other creators. But there are clear lessons to be learned from them.

Not evident. Your efforts to distinguish lawyers above are barely scratching the surface of the evident differences. The question is, what similarity justifies drawing the supposed parallel in the first place?

Firstly, it is clear that one doesn’t need the backing of a large company to be financially successful. Producing a quality product and having a strong relationship with your client base are far more important. If anything, not working under the auspice

There is no such thing as an "auspice." "Auspices" would have been wrong anyway, because you don't mean "omen," you mean "employment." You will find it helpful to look up unfamiliar words before you use them.

of a large company allows more creativity, which can ultimately make your product better.

What reason have I to believe that this is true? Do you have a basis for belief that creative lawyering does not or cannot occur in the context of law firm practice?

Secondly, large companies are not essential for putting talented people together or ensuring that the right people with the right skills are on a particular project. Collaborations can be formed on an as-needed basis. Just as a comic book writer can find an artist with the appropriate skill and style through social media, lawyers seeking expertise ought to be able to find it through the Internet.

Lawyers seeking expertise, or did you mean "clients"?

Ultimately, this conclusion is quite similar to the philosophies Professor Moglen has been espousing throughout this semester (and earlier). Though these conclusions may not be novel, I think it is worth noting the success creators in other industries have had in changing their own industries. So, when wondering whether it really is smart to turn down that job offer from the law firms, hopefully the success of today’s musicians, comedians, writers, artists, and others will inspire you to try this new mode of thought.

Maybe. But if this is about something I said, you would probably want to consider that I said the novelty was license-pawning, and that practicing law by using your own license to represent your own clients was the almost invariable form of legal practice in the English-speaking world over the last thousand years. So my argument doesn't depend on a tenuous set of comparisons with developments over the last decade in essentially dissimilar activities that don't bear much relationship to one another and are, when you get right down to it, of no great social importance.

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