In Authors: Beware of Copyright, Jeff Tucker warns authors to be careful with their publication agreements not to alienate their books and other works. A good illustration of this peril is found in the case of Buddy Holly and his recording contract with Decca. As reported in Buddy Holly’s secretly recorded contract negotiation with Decca,
In 1956, Buddy Holly traveled to Nashville to record several songs. One of the songs he recorded was “That’ll Be The Day”, but the producer assigned to his sessions (Owen Bradley) hated rock n’ roll, and did a terrible job on the song. After that, Buddy traveled to New Mexico and re-recorded “That’ll Be The Day” (the version that became the monster hit) at a different studio with his own (superior) arrangement, but according to his contract with Decca, he couldn’t release it, because Decca owned all rights to his music. He decided to call Decca, to try reason with them, and he secretly taped his conversation. They refused to give him the rights to his own song, but he went ahead and violated his contract. Here is the conversation he secretly taped.
Listening to Holly pleading with the masters he has alienated his rights to is heartbreaking. Decca had dropped him, apparently, but had the rights to sit on his recordings for 5 years. Although they had no intention of releasing the songs, they also would not give Holly permission to do so–the cigar-chomping executive kept saying “well, we got a lot of money tied up in them, Buddy!” But Holly offered to reimburse those costs; no dice.
Authors: do not let this happen to you. When you publish a book, consider publishing it yourself on Amazon/Kindle (or, soon, iBooks/iPad) or LuLu. Or persuade the publisher to let you post an online version for free. At least make sure the publisher will offer a kindle and ebook version. Negotiate, at the very least, the right to post the work online for free after, say, 3 or 4 years, when sales have petered out.
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Right, authors, do not contract with capitalists in order to produce your work. Capitalists are the devil! They’ll eat your soul.
@stranger
One who uses government granted monopolies to make money is not a capitalist. That is the description of a mercantilist.
There is a lot of socialist claptrap out there about producers vs. bands and writers. And yet there an interesting truth here: writers and bands are in fact selling themselves into slavery via the copyright contract. Their intuition tells them that it is their work and that they would like to share it with the world. Not that entirely get this point. But this is the source of conflict here. The contrast with a market-based approach can’t be more clear. If publishers’ relationships with authors break down, the authors can always go elsewhere.
I suppose any time labor is sold for wages it is also selling yourself into slavery, since the capitalist now owns the fruits of your labor.
What nonsense.
@stranger
What the capitalist owns are the raw materials that your labor transforms. That is why he owns the resulting product. You are not a slave unless he owns you wages (remember that on April 15th).
Another ridiculous case for you here Stephan:
http://sports.espn.go.com/nfl/playoffs/2009/news/story?id=4871697
“Some T-shirt makers are asking that question after they were hit with cease-and-desist letters from the NFL demanding that they stop selling shirts with the traditional cheer of New Orleans Saints fans.”
The dispute is over the phrase “Who Dat,”
“Separately, two brothers and longtime Saints fans claim they own the phrase, which was around before the long-downtrodden team’s inception in 1966.”
Typical news from the National Fascist League.
@ Stranger
The point your missing is the “Evil Capitalist” now can dictate what Buddy Holly does with his own resources/capital. Thats not capitalistic at all.
Sean A: Check this recent one out: “Teen’s charity name draws the McIre of McDonald’s
Lou:
“You couldn’t blame Lauren McClusky of Chicago if she were a bit squeamish about using her last name in this story without fear of reprisal from Ronald McDonald and his legal posse.
For McClusky, 19, finds herself at the center of a thorny dispute that involves a series of charity concerts she’s put on over the past three years. She dubbed the event “McFest” (more on that in a moment) — but McDonald’s sees that as an infringement on its trademarks, something the McDonaldland lawyers refer to as “the McFamily of brands.”
These include (deep breath): McPen, McBurger, McBuddy, McWatch, McDouble, McJobs, McShirt, McPool, McProduct, McShades, McFree, McRuler, McLight — and even the prefix “Mc” itself.
“But not McFest,” pointed out McClusky, who declined to change her last name for this story. “The whole reason I called it McFest in the first place is my name.”
Her original co-chair for the first McFest also shared the “Mc” prefix in her surname, so it seemed a natural. And indeed, not a single McDonald’s attorney seemed to object in 2007 and 2008, when McClusky’s McFests raised $30,000 for the Chicago chapter of Special Olympics.
But when McClusky applied to have the McFest name protected, McDonald’s filed an opposition. So instead of donating funds from her 2009 concert to Special Olympics, McClusky’s had to hire lawyers to answer a series of administrative proceedings McDonald’s filed with the U.S. Patent and Trademark Office. To date, it’s cost her roughly $5,000 — money she wishes had gone to Special Olympics kids instead of attorneys.
The daughter of independent radio promoter Jeff McClusky, Lauren McClusky could of course just change the event name. But that would involve starting from square one in terms of the awareness and name recognition she’s already created for her concert series. “It’s hard to change the name of something that’s already established and locally known,” she said.
As for McDonald’s actions, McClusky says she’s frustrated by the company’s desire to clamp down on and in effect penalize a charity event — especially when McDonald’s supports Special Olympics as well. “It has nothing to do with food, arches or their colors,” she said. “And our M’s are pointy, not curved.”
@filc
He didn’t have to sign the contract and take their money. He agreed to take their money because it was more productive for him to do so.
In typical communist fashion, Kinsella sees a bad contract as a reason to denounce all capitalists and promote self-sufficiency and the destruction of the division of labor.
People like Stranger are a good reason to turn off blog comments. There is no limit to the amount of lies and mis-characterization he will use this blog to promote.
There is a point where being tolerant of other ideas, just allows trolls (a fascist troll in this case, see his Mises community posts) to disrupt and argue in bad faith. The blog and its regular readership gain nothing I can see from these comments.
Let him find his own audience and pay the cost of promoting his point of view. Right now, he’s just a second hand dealer of bad ideas mooching off the resources of LvMI.
and yet, Stranger is asking legitimate questions or, rather, making points that would have been conventional in libertarian theory about 10 years ago or even 5 years ago. Kinsella’s discovery of the special character of information – sound and writing and view – and his conclusion concerning the illegitimacy of IP has had a massive effect, one overlooked by most everyone (Hayek might be the only exception). It is hardly reasonable to enforce compliance on the part of everyone concerning such a new and profound idea. It will take a while to shake all this out. I really welcome the challenge/response.
What’s up with that?
The author could have:
a) Publish his record with the other company anyway. Wait for the other guy to sue him. Get a good lawyer. Show the judge that Decca didn’t even sell a single records and that therefore the damages + interests are zero. (make sure beforehand that Decca didn’t do some backdating or screwed their accountings stuff).
or
b) Ask Decca how much they would like it if he were to go on National TV or Radio with his ‘newsworthy’ story that Decca screw artists with bad recording and greedy contracts. Then ask Decca if they changed their mind and if not go ahead and get on TV and/or Radio…
etc..
I welcome legitimate challenges and questions. That is how I became a libertarian and an anarchist.
But labeling people a communist, avoiding the content of the post to make irrelevant comments, and continually making personal attacks?
It’s just showboating from an ideologue. It does nothing to further the debate, even for his own cause.
Let me mention here, re the nature of information and its relationship to property: As I noted in Owning Thoughts and Labor:
Hoppe wrote this in 1988 … 22 years ago. Libertarians are still catching on…
One thing I hate about academic book is when I turn to the indicia page, I see a copyright notice along the lines of ‘copyright XX university press’ or ‘copyright XX university regents’ or the like.
When I pick up any work of fiction, I see ‘copyright author’ (or their LLC as the case may be).
Why this difference?
I also don’t like it when I get a collection of fiction, and the indicia page tells me that this work or that work was reprinted by permission of this or that publisher. Again, not right. The only permission should have been from the author (the owner). The author should have only sold right of first publication to a magazine or publisher, afterwhich the rights go back to the author to do as he/she sees fit (publish somewhere else, anthology, on-line, what have you).
At the time of Holly’s troubles with Decca, recording was a considerably more expensive operation than it is now. Although “Decca didn’t even sell a single record”, the company would have had to spend a small, but significant, amount of money.
I think it’s fair to point out that Owen Bradley was one of the top country producers at that time, and is considered to be the chief architect of the Nashville country sound. His hit making ability has rarely been equaled by any producer in any genera. Also, I’m pretty sure that he didn’t hate rock n’ roll; many of his productions (sugary as they are) have a strong back beat, feature triplet piano rhythms and incorporate other rock and roll elements. In any case, rock and roll was still in it’s infancy in 1956 and the differences between rock and roll, country, jump blues, hillbilly music, etc… that we recognize now were still developing.
From the recording, it sounds like Paul Cohen hasn’t listened to the disputed songs. Buddy Holly was not a big star at this point, and Cohen probably doubted that he had hit potential. However, Cohen does repeatedly ask to hear Holly’s new recordings (if he makes or has made them). Holly, at this point, has only been released from his contract partially. He is free to sign on with another label, but not to re-release the material he recorded for Decca.
In my eyes, the matter has little to do with intellectual property, and everything to do with contract law. Holly is asking to be released from his contract, and Cohen says no. Holly agreed to not to re-record the songs involved, and Cohen might have been totally justified in suing Holly.
In the end, Holly signed with Coral, which was owned by Decca, and the question of Holly’s right to re-record the material was never questioned.
In my eyes, the matter has little to do with intellectual property, and everything to do with contract law. Holly is asking to be released from his contract, and Cohen says no. Holly agreed to not to re-record the songs involved, and Cohen might have been totally justified in suing Holly.
Right in one.
But of course, Kinsella’s most oft used argument is: this singer made a bad contract, oh shit, let’s push the anarchist agenda, we better do away with the whole concept of owning anything to make a contract over.
[And of course the argument that goes if you take Buddy's guitar he can no longer play it, so that is theft, whereas if you deny him income by simply file sharing his earning ability up against the wall of looters, he can still listen to a copy of the file, so that is not theft. Of course we know that is simply morally bankrupt, plus I'd just urge Buddy to buy another guitar - which he could, if his income hadn't been stolen, or, he hadn't got on that plane ...]
[Although, I've actually got no problem with Kinsella's very last paragraph.]
The neo-Rothbardians who own the Mises Institute are devoted to the notion that property rights are incompatible with literary and musical products. Copyrights are enforced by the government, they muse; therefore rights to literary endeavors must be ethically tainted and corrupt. This is simple misguided thinking, as Rothbard–who defended copyrights–would have pointed out.
Private property rights to one’s writing are no different, in principle, from one’s proper ownership of any other form of property. One doesn’t own the words that appear on one’s written page. One owns the written page! Even the most devout Mises Institute “Anarchist” ought to be able to grasp the legal possibilities inherent in such ownership. For owners have the right to set the terms of the voluntary exchange of their property, which may include prohibiting unauthroized reproduction. Copyright law is an imperfect attempt to legally codify this rightful condition of exchange by writers and artists.
More basically, there is a crucial flaw in this unfortunate assault on “intellectual property”. The Mises Institute people use this term to designate a special brand of property that they believe is ethically illegitimate and therefore not really private property. But the truth is, “intellectual property” is no different than any other kind of property.
All property is created by the application of one’s ideas to physical reality. An inventor or writer may have scarce and valuable ideas that she uses to create a physical product. The nature of the product is not important and may run the gamut of possibilities, from machines and books, to on-stage renditions or recordings, to food and drug formulas. The unifying principle is ownership of the physical reality that incorporates scarce and valuable ideas.
The people who run the Mises Institute are religious. This fundamental philosophical outlook logically determines their ideas–often unexamined–about the nature of knowledge. I can’t discuss this properly in this setting, but I can make a strong case that the view of knowledge inspired by religious faith leads the faithful to denigrate the moral value of individual ideas. This denigration stems logically from the idea that “human knowledge” (as opposed to “divine knowledge”) distorts rather than informs concerning ultimate issues.
This is a big subject and, obviously, a highly controversial claim. It is a subject for some other day.
Thank you for allowing me to publish my ideas about this subject on the Mises website.
hey, i’m on the same side of an argument as hubbard. what’s going on?
sanctity of contract has got to be respected, even in the case of dr. faust.
let the devil be the state, but a deal is a deal.
but jeff’s warning is on the money: authors beware. go back to the statute of anne and research the shabby deal between publishers and the crown, before believing the nonsense touted about artists’ welfare.
http://questioncopyright.org/promise
@jeffrey
As has been shown in details in the Mises forum, the argument against intellectual property is not a new argument but a fallacious argument resulting from a miscomprehension of the scarce nature of information. In fact the field of information theory which has grown in the past decades completely shatters their arguments and their obfuscation of ideas and information.
Now that their fallacies have been refuted, the intellectual communists have stooped so low as to claim that there is nothing wrong with counterfeiting money! It just shows what kind of people they are, that instead of conceding the point they would let their communism infect all other forms of wealth.
“Now that their fallacies have been refuted, the intellectual communists have stooped so low as to claim that there is nothing wrong with counterfeiting money!”
I’m having trouble conceiving how anyone could counterfeit gold or silver or any other kind of commodity money. Maybe you imply some sort of fiat money? But money of that sort is only money due to legal tender laws. I refer you to Mises’s Theory of Money and Credit book for a more expansive exposition.
I think you’re having difficulty recognizing what gives any specific thing economic value. Perhaps a study of Menger’s Principles book is in order.
Cory Doctorow, hardly a libertarian by any stretch, has released all his books under a Creative Commons license. His publisher is fine with this, though as I understand it took some convincing, and interestingly, he’s making money despite (or perhaps because he’s) giving away electronic copies of his books for free right on his web site!
Copyright is wholly unnecessary for artists and other creative people who are currently using it. A few people leading the way in experiments like this can show how to make money on “free” (in either sense) information.
@Ryan
“I’m having trouble conceiving how anyone could counterfeit gold or silver or any other kind of commodity money.”
Create a coin with 50% gold and put another bank’s trademark on it. No one will ever know it was you and the bank will be destroyed.
Hubbard:
#
I have not argued for abrogation of contract. Though I will say that to say that a given contract should be enforced, one has to have a coherent theory of contract. The one I adhere to is the Rothbardian-Evers title-transfer theory of contract, which is also informed by the notion of inalienability of one’s own body. Contracts for the transfer of title to alienable property ought to be enforced.
But if copyright were not the law, IP would not permeate this as a background condition. Holly would not *need* Decca’s permission to record a song. Unless he somehow contracted that right away. How would this be done consistent with inalienable rights and a title trasnfer theory of contract? I suppose Holly could have agreed to pay substantial financial penalties to Decca (title transfer of money) IF he re-recorded his own songs later without Decca’s permission. Would Holly have agreed to this? Who knows. One would think if Decca asked for unreasonable, exhorbitant damages, Holly might balk. And if htey didn’t, then Holly could have just paid the damages and re-recorded his song, if it was worth it to him.
“[Although, I've actually got no problem with Kinsella's very last paragraph.]”
Which was the point of my post, and Jeff’s earlier one.
Mark Humphrey:
Nonsense. We do not believe there are rights to free speech–there are property rights, and free speech flows from this as a consequence. Does that mean we oppose free speech. Don’t be ridiculous and simplistic–just one of them at a time, please.
Wrong. the state enforces murder law ; that dosn’t mean murder is legitimate. It’s the fact that IP is possibly *only* wiht a state that makes it invalid.
Except IP. To get a patent, for example, you only need to file a document with the state describing various ideas. No application of the ideas to the world.
I’m not religious. Now what do you say?
newson:
Sure, given a proper theory of contrat. In my post I simply urged authors not to agree to copyright-backed alienations of their right to do things with their own work later.
Stranger, since when can gold be counterfeited? Or are you talking about green paper that people call money? Well, I hate to break the news, that is green paper the government makes you call money, it is not money.
Stranger:
Counterfeiting is a species of fraud. See http://blog.mises.org/archives/009367.asp and http://blog.mises.org/archives/005327.asp. Also see my Reply to Van Dun: Non-Aggression and Title Transfer, pp. 59-63.
It is in fact the mainstream Ayn Rand Institute types who support counterfeiting–fractional reserve banking. See my comment here.
to stranger:
wouldn’t the bank engage detectives or invest in high-tech minting, rather than see its product debased?
minting of coins is not something that is all that easy to do, anyway. have a read of “ethics of money production” by hülsmann, and you’ll see that the coin-era was characterized by amazingly low inflation by today’s standards, nothwithstanding debasement (practised on a large scale essentially only by monarchs). it takes fiat money and legal tender laws to enjoy massive currency devaluation.
Mr. Kinsella,
“I suppose Holly could have agreed to pay substantial financial penalties to Decca (title transfer of money) IF he re-recorded his own songs later without Decca’s permission. Would Holly have agreed to this? Who knows.”
It appears that Holly did agree to this. In the recording, Paul Cohen is explaining the terms of Holly’s contract. Holly does not dispute that these are the terms of his contract. The terms do not allow Holly to re-record the songs that he recorded for Decca for six years.
What exactly is wrong with this situation?
Ben Ranson:
Especially for academic publications, there is no money in them and for the few that there are, it peters out after a couple years. Yet there author can’t post a free PDF etc. I just recommend not entering into such agreements.
As for the Holly situation: I’m saying the very existence of IP skews the market; we cannot know what the market custom would be in its absence. But I think rather than relying on IP “assignments,” which only *implicitly* result in steep damages (and which are thus never consented to by the artist), the label would have to explicitly ask the artist to basically agree to assign all his future income to them if he did X Y or Z. I htink this would be seen and exposed as incredibly unreasonable in most such situations, and hard to get away with.
@Kinsella
“Counterfeiting is a species of fraud.”
I agree. Fraud against the producer.
For the same reasons, IP violation is fraud against the IP producer who shared information with you on the condition that you not make copies.
As for Buddy Holly, re-recording his songs would be de-frauding his producer, who paid him a generous advance on his work in typical capitalist business.
All of these interactions are pure market interactions, and at no point does the state or patents get involved. This leaves me wondering, why does Kinsella keep throwing the stinking red herring of patents in every IP discussion?
Kinsella wrote:
Which was the point of my post, and Jeff’s earlier one. ‘That is,to show sanctity of contract.’
But had already contradicted this earlier in the same post by:
But if copyright were not the law, IP would not permeate this as a background condition.
That is, just part of the agenda to sanction the theft for the product of a man’s mind.
To the Doctorow post above, first, one author ‘possibly’ making a living from creative commons compared to every other author: not a good premise is it. Secondly, you see Doctorow everywhere on the net, I suspect he is having to make money predominantly by everything other than actually selling his books, as it would be in the looters world of no IP. (And not even Doctorow could say what his sales would be if he had gone the publisher root: perhaps triple or quadrulpe sales?) Although even all this is beside the actual issue of IP, and a man owning the product of his mind.
“Especially for academic publications, there is no money in them… the author can’t post a free PDF etc…
The music business is a for profit. Holly and Decca were able to come to an agreement. As I pointed out earlier, Holly re-signed with Coral, a Decca subsidiary. Decca ultimately invested a bunch more money in Holly and both Holly and Decca made a big profit.
“I just recommend not entering into such agreements…”
Probably good advice, for academics.
“the label would have to explicitly ask the artist to basically agree to assign all his future income to them if he did X Y or Z. I think this would be seen and exposed as… unreasonable in most situations…”
More likely, if Holly had re-recorded the songs for another label, Decca would have sued Holly for the royalties from the new record deal, should the songs have been hits. I think this would have been perfectly reasonable, given the terms of Holly’s contract.
Stranger: “As for Buddy Holly, re-recording his songs would be de-frauding his producer, who paid him a generous advance on his work in typical capitalist business.”
It’s not fraud. CAlling it fraud betrays a typical confusion about the nature of contract and fraud. I weary of explaining this to amateurs and newbs. There is plenty written on this. It is not that hard to understand.
“Counterfeiting is a species of fraud.”
I agree. Fraud against the producer.
You have a very odd definition of fraud, then. Counterfeiting is fraud against the person who unwittingly accepts the forgery.
T’is interesting that Miseans define counterfeiting as produce more items because it devalues the earlier items as opposed to the non-Misean definition whereby people pass off a fake item as a real item. So by the Misean definition, gold and silver mining is fraud as it devalues the gold and silver already in existence. And one shouldn’t forget the massive fraud in the late 1800s where a method for extracting aluminium from bauxite defrauded a great many people who held the wealth in aluminium bars and coins which used to be just as valuable as silver, if not moreso.
Gil-
That is not what Misesians think. Can we please attempt to understand what the other parties are actually saying before we make statements such as yours:
“T’is interesting that Miseans define counterfeiting as produce more items because it devalues the earlier items as opposed to the non-Misean definition whereby people pass off a fake item as a real item.”
I believe you have taken one of the effects of counterfeiting that Misesians decry and transformed it into what you want Misesians to define counterfeiting as. When deploring the fraud that is counterfeiting of money, Misesians point out that the act of adding false money into the supply of money has the effect of diluting the value of the good, non-counterfeited money out there. Misesians certainly wouldn’t argue that only the gold or silver currently (in a better world) constituting the supply of money is non-counterfeited money, but would instead say that gold is used as money in large part because people have come to respect it for its ability to serve as a store of value; a characteristic it possesses thanks to the historical limited availability of new gold stocks that could be mined to add more gold (aka “real money) to the worlds supply. Certainly no Misesian would decry the mining of gold and addition of that gold to the market as counterfeiting.
Mr. Kinsella,
Stranger has a point. In the recording of Buddy Holly and Paul Cohen talking which is the basis of this thread, Cohen makes the point that, “re-recording his songs would be defrauding” the Decca record company.
Holly has agreed not to re-record his songs for six years. If he had done so, which he did not, he would have been in violation of the contract.
“Calling it fraud betrays a typical confusion about the nature of contract and fraud. I weary of explaining this to amateurs…”
We are not discussing an abstract contract which is similar to the one in this situation. We are discussing Buddy Holly’s contract with Decca. Why would a violation of this particular contract not have been fraud?
Ranson: A breach of contract need not be fraud.
Yeah, but Kinsella loves defining the language to suit his ends.
It would be fraud, just as file sharing is theft.
No doubt about it. None at all.
sharing a book is ok, but sharing a file is theft. go figure.
Context dropping and ignoring the facts of reality:
sharing a book is ok, but sharing a file is theft. go figure.
Can you share your physical book with, say, one billion people in the same second newson, and all over the planet?
Do you get it yet?
now you’re picking up the utilitarian ball, and running with it. i thought all the rand-babble was about morals, not orders of magnitude?
because i don’t get it, help me with a figure for the inflection point where loaning goes from benign to malign. twenty, two thousand, three, one million?
The point I just made is in no way utilitarian (which the anti-IP lobby are almost solely reliant on).
Tell me how the point I made is utilitatarian?
(Hint: you’re saying a billion people can download my book for no profit to me – that is, you’re effectively arguing for the greatest good of the greatest number, built on theft from me. I’m saying – the pro-IP, pro-freedom argument – it’s my book, it’s my property, I control the conditions of its sale, the billion people have to pay me for it.)
nice dodge, where is the inflection point?
I’m not the one dodging newson, as all can see here. Answer my question. My post directly.
By the way, in theory, re your question, the inflection point is none. All people should have to buy my book.
Now, answer to my question.
what, so even loaning my book to one person is a theft of the author’s property?
so randians never borrow books?
i bet if i had a mind to do so, i could prove that rand herself borrowed books. from public libraries, no less, as well as from friends.
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