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| David Israelson |
If we can figure it out, that is. The relationship between the two is changing all the time, and arguably, a lot of the change traces back to the release of Tapestry.
More than almost any other solo performer, King cemented the idea in the public’s mind of songwriters performing their own tunes. True, the 1960s were full of some of the biggest selling songwriter-performers in history, but Tapestry raised the bar.
Entertainment law has been struggling to keep up ever since. It’s finding new ways, for example, through the sale of song catalogues from iconic performer/writers such as Bob Dylan and Neil Young.
One company, Hipgnosis, founded by Canadian Merck Mercuriadis, has been assertively spending billions to pick up full or partial rights to songs, and other companies have followed. Interestingly, many of the most valuable songs are classics of the early ’70s singer/songwriter heyday.
That’s significant perhaps. I think that one reason the King album sticks in peoples’ minds is because it reminds us how much the music business and the legal framework that supports it has changed.
From a business standpoint, Tapestry pointed to new economies of scale in the recording studio. It was a quiet hit — literally, something to be played at low volume. Among other things, this conjured up the idea that a talented writer could come up with a masterpiece without relying on an entourage.
It firmed up an emerging pop genre — the solo singer/songwriter. And it was a rebranding — King was already one of the most successful writers in pop music, but Tapestry introduced her to younger baby boomers as kind of a big sister who could sing you into happiness.
What is less noticed perhaps is the legal thread that can be traced from Tapestry to the big issues music faces in the digital age: what exactly is a song, in the legal sense? And when it’s sold, what are the buyer and seller actually exchanging?
In Tapestry’s day that was clear — there was a recorded performance and the song itself. Today the “what” has become more complicated by constant advances in technology and social media, enabling new methods of creating, distributing and listening.
It’s not a new situation, it’s just faster. The legal system has been long called upon to determine ways to monetize and commoditize the creative sparks that come out of peoples’ heads and into our ears and hearts.
Two centuries ago, music was monetized largely through the patronage of royalty and religious institutions; the church, a shaman or some local potentate might support the work of a composer or a virtuoso violinist or drummer.
Later, songwriters made money by selling rights to publish their tunes to publishers, who would print and sell sheet music and share the profits.
This grew into a great industry, in which King herself played a major role, as one of the top songwriters in the legendary Brill Building in New York.
As the pop music industry grew, musicians realized they could earn more by writing their own songs and making money both from their recordings and from other peoples’ records and performances, with royalties collected by performing rights organizations.
There were several ways for musicians to make a living, all more or less the same whether you were King or someone nobody knew — write songs, record them, go on tour or play in bars and hope that people would buy your recordings and maybe some merch.
That model was broken by technology, and it has been smashed to bits by COVID-19.
Technology broke the model because it changed the means of recording, broadcasting and distributing music. Today, a musician can use a laptop and a good microphone to produce a recording that’s reasonably close in sound quality for many of us to a recording that would have required expensive studio time in the 1970s.
And music is often derivative. So a lot of new music is built on samples of previous tunes and recordings, which means that new songwriters often have to share credit with writers and performers from the past, diluting their own profit.
As far as profiting from the recordings goes, now anyone can listen to the song if it’s posted to one of the music services such as Apple Music or Spotify. It’s dirt cheap. So there’s little incentive to buy a record, whether it’s vinyl, CD or an MP3.
COVID has smashed the old model even more by taking away live performances. True, some innovators have sold tickets for Zoom concerts, but it’s not clear whether “everyone mute please” will be a reliable income substitute for an arena full of stoned fans or a mosh pit.
New legal questions are bound to emerge. When a songwriter sells a song catalogue, what exactly did the buyer purchase? Who can police the online use of clips, and how much policing of what? A few notes? A beat box sequence? Sampling for your high school project?
I wonder what King thinks about all this. I hope she knows that whichever way entertainment law develops, we’ll still love her tomorrow.
David Israelson is a non-practising lawyer, author, journalist and communications consultant. You can follow him on Twitter @davidisraelson or on Linkedin.
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