For Composers - Part 2: You and the Long, Scary, Unknown, No Good, Very Foggy Road
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FOR COMPOSERS - Part 2: You and the Long, Scary, Unknown, No Good, Very Foggy Road
So…you probably read my Part 1 of the current state of composers, particularly media composers a couple weeks ago. If you didn’t, you might want to go read that first in the post below.
This may get into the weeds a bit, but grab an drink and stay with me.
Composers are businesses. We are not someone else’s employees. (Although if you are working under a S-Corp, C-corp or LLC as you should be, you are likely an employee of your own company that you also are the CEO of). But aside from that, you are a business. You are tax reported on 1099s. Not W2s. You have different tax rates than W2 income rates.
You have better options to write off expenses than employees do. Heck, you likely hire staff and pay them as well. Thus…it is my belief that we need to start acting like businesses in all the ways that entails. Elmer et al did that very thing when they brought their lawsuits in the 70’s & 80’s. They were defending their rights as copyright content creators. The SCL v Aaron Spelling productions further made similar arguments. And above all, they WERE SUCCESSFUL. (Yes…even though the union was broken up, they were successful in what they set out to show). What do I take from that? That when we embrace the power that copyright ownership and control gives us, we can affect positive change for our composer community. And since companies, corporations and businesses can’t unionize (they are supposed to compete remember?)…the way they change the landscape to make their business environments better is to lobby their legislators. BIG TIME!
Add to that….this side observation:
The united states does not physically make much any more. Not like we used to any way. We may design the computer by Apple in Cupertino sure….but it is physically made in China…or India. Etc…Major manufacturing facilities have left the USA to go where labor is cheaper and competition for the customer drives the price of those commodity products we buy down. We need to resist the quick path to being considered a commodity product. Music needs to NOT be a commodity. You as a composer and artist are unique. We are all unique.
In a union “job”…a well trained professional can just hop in and replace you at any time on the “workfloor” and the same result, same product would pop out for the employer to sell. That is NOT applicable to us. There is only one YOU. No matter how many professional composers there are out there, if someone else replaced you, the end result would be completely different composed music. Completely different INTELLECTUAL PROPERTY. This uniqueness is also key to asserting our individual copyright. Our HUMAN generated copyright. Copyright protected IP is the one thing we in the USA still massively export to the world. Our whole entertainment industry product is exported to the world. And to create it, we hire a whole pyramid of people under us to create what we create. We massively infuse money and capital into small businesses hiring musicians, mix engineers, publicists, lawyers, agents, managers, tour staff, computer products, software products, the list goes on. We are a HUGE economic engine for the backbone of our country ALL because of our INTELLECTUAL PROPERTY. That is why legislators WILL listen to us when we start making arguments that frame what we do as a KEY AND FUNDAMENTAL small business economic engine.
Knowing all of this….what are things we can and should do now to lay the ground work for strengthening a composer’s position and leverage in media composing?
1. Composers in every organization where we are members (SCL, AMPAS, Television Academy, NARAS, ASMAC, etc…) should be on the forefront of lobbying our legislators about strengthening copyright law to ensure ONLY human created content is eligible for copyright protections. If the studios can’t copyright own and control it…they will not allow it to be used in their productions. I am not wishfully thinking that AI music will die because of this. There will be a place for it. Under that YouTube video…or on the elevator, in some Pharmaceutical commercial. But in areas where copyright control and ownership is necessary for media music, if it can’t be copyrighted, the ones who hire us won’t allow it to be used in their copyrighted products. That helps keep composers employed to create what we create. Like Andy Dufresne in The Shawshank Redemption finding some success after writing a letter a week for over a year to his legislator for some library money….”Well…now I will have to write two letters a week.”
2. CA congressional representative Adam Schiff has a new AI law proposed that will require Generative AI companies to disclose any and all copyrighted works they used to train their algorithms. In the near future, I will be proposing to him that we should be adding another disclosure for copyright applicants as well.
Copyright applications should include a required disclosure of exactly WHAT generative AI tools or products were used in the creation of the registered work. This will further help the copyright office determine what parts of the registered work are eligible and what parts are not.
The good news is, as of March 16, 2023, the copyright office issued a guidance on how to register copyright for works with AI content. There are two categories they now already ask when registering content. Is there AI generated content in this registration application? And is that AI content Appreciative or De Minimis to the overall content in the application? These distinctions are legal terms defined as the following:
- To determine if a work has Appreciative AI content you simply ask, “if this content were created by a HUMAN, would it be eligible for copyright?” In our music world that is a whole song. Lyrics. A melody. The parts we can register. etc… If this answer is yes then the Appreciative AI containing work is NOT eligible for copyright. It is essentially public domain.
- De Minimis AI content is defined as AI used in the creation of the content in such a way that its result would NOT be eligible for copyright if a human created it. AI used to make a blurry photo sharper for example. That sharpening action is not a human action eligible for copyright so this AI contribution to the work is De Minimis and does NOT disqualify the work. In our music world…I can think of an AI mix plugin. Mixing plugin iZotope Ozone uses an AI algorithm to help create a better audio mix….that is not a “generative AI” use that is individually copyright eligible separate from the music work itself. So like the photo tool that makes a photo more sharp…that is also OK…and does not affect copyright eligibility either.
Any time we can be vocal about strengthening copyright, we need to be present in that “room.”
Since this has been long enough for a Part 2….I will pause here and just say that the most important plan of action we need to take…related to changes in how Work-For-Hire agreements work in the USA will be coming shortly in Part 3.
Stay Tuned!
Brian
