Jesse Helms: Web radio’s hero

Small Internet radio broadcasters on the brink of financial disaster have won some breathing room, thanks to the senator from North Carolina.

By F. Timothy Martin

Topics:Copyright, Intellectual Property

For the noncommercial Web broadcasting community, mostly composed of politically left-leaning independent and college radio stations, an unlikely ally has emerged to help in their fight against potentially crippling royalty payments. He is Jesse Helms, the Republican senator from North Carolina, and while his actions may very well be motivated by the interests of small conservative Christian Internet broadcasters, his support for the Small Webcasters Settlement Act (SWSA) has compelled some noncommercial station backers to feel for him what they never imagined they could — gratitude.

Helms first involved himself in late October, when a version of the bill reached the Senate after unanimously passing a vote in the House of Representatives. Several senators, including Helms, voiced concerns that the bill lacked provisions to protect small and noncommercial webcasters. As a result, Helms moved to block the legislation, the only senator to do so.

Few can deny Helms chose an opportune moment to intervene on behalf of webcasters. His move to block the first version of the bill came just days before an Oct. 20 deadline imposed by the Library of Congress for webcasters to make retroactive payments on all songs played per use since October 1998. The fees are often referred to as the CARP royalty, so named after the Copyright Arbitration Royalty Panel established by Congress to set fees that webcasters must pay the recording industry for use of their copyright-protected music. Webcasters and their allies complained the fees were far too high for most to afford and, if left unaltered, would most likely spell doom for many small and noncommercial Internet radio stations.

Helms’ blocking action prompted many webcasters to hail him as an unlikely hero. The amended version of the bill, rewritten by Helms and his staff, unanimously passed through both houses of Congress on Nov. 14. Advocates called it a huge victory for Internet radio. “I think it opens a new window of opportunity to come to terms,” remarked Will Robedee, general manager of Rice University’s KTRU and the driving force behind Save Our Streams, a Web site dedicated to the advocacy of small webcasters’ rights.

The SWSA will create that opportunity by suspending all royalty payments for noncommercial webcasters until May 31, 2003. It also ensures that they pay only a percentage of revenue to recording labels rather than the per performance fee negotiated earlier this year by CARP.

The original version of the SWSA, often referred to by its pre-Senate title, House Resolution 5469, once had the support of a grass-roots campaign led by members of the small and noncommercial Internet radio community. Web broadcasters around the country encouraged their listeners to lobby Congress to support the payment-delaying resolution. Their actions culminated in a day of silence on May 1, when hundreds of Internet broadcasters joined to protest the CARP fees.

In its original form, HR 5469 was meant to give webcasters a six-month reprieve before they faced the high cost of retroactive fees. The resolution would have also postponed meeting the reporting requirements, which mandated that all stations supply the recording industry with statistical information about each song they play. Many hoped to use this time to legally challenge the terms imposed by the recording industry.

But to the dismay of many independent webcasters, the recording industry, along with a small group of 13 or so commercial stations that refers to itself as the Voice of Webcasters (VOW), negotiated a backroom deal that many complained largely ignored the concerns of nonprofit and very small commercial stations. Critics of that version, which was heavily supported by Rep. F. James Sensenbrenner, R-Wis., argued that negotiations were made hastily to beat the Oct. 20 deadline for the imposition of CARP fees.

“Noncommercial stations were not represented in the negotiations. The issue was discussed in great detail by members of Congress and the recording industry well before negotiations took place,” says Robedee.

The outcome left college radio and independent stations feeling uncertain about their future. As a result of the ambiguity surrounding their fate, many webcasters such as WFMU, a critically acclaimed station that broadcasts from Jersey City, were prompted to begin the time-consuming process of contacting record labels independently to ask them to sign agreements that would release their stations from having to pay for playing music online.

“While helping some small commercial webcasters, the negotiations that led to the [Sensenbrenner version] did not take the smallest webcasters into account. Instead it left over a thousand stations in the dark that weren’t considered in that legislation. The process has been terrible,” lamented Ken Freedman, WFMU’s station manager. “Noncommercial stations rallied listeners to write congressmen,” Freedman continued. “I have a lot of sympathy with them.”

Though it sounds as though Freedman’s opinions are in line with the consensus, at least one pundit seems less supportive of Helms’ blocking the Sensenbrenner version. “I thought that the Sensenbrenner negotiation helped the class of webcaster most in jeopardy without hurting anyone else,” remarked Kurt Hanson, publisher of the Radio and Internet Newsletter (RAIN).

In response to the ultimate passage of the SWSA, however, Hanson is less critical. “In the end, I’m pleasantly surprised that Helms does look like a hero.”

The Helms-sponsored amendment significantly eases the pressure that many of these stations were feeling. But does the SWSA adequately address the needs of small and noncommercial webcasters?

“No,” argues Freedman. “The only thing the bill itself does is delay retroactive payments until next year and invites negotiations between the RIAA and noncommercial and non-CPB stations. This is hopeful, but rates themselves have not been adopted or even proposed. Noncommercial stations should have a better deal. At very minimum they should be given the deal NPR was given.”

The NPR deal Freedman refers to was one made between the Recording Industry Association of America (RIAA) and the Corporation for Public Broadcasting, which represents NPR affiliates. While the exact terms of the negotiations have been kept secret, insiders say that at least part of the deal ensures that if an NPR station has fewer than 10 employees it is exempted from record-keeping requirements.

After performance fees, reporting requirements pose the biggest budgetary challenge to community Web broadcasters.

“CARP has yet to set reporting requirements for stations like ours,” said Jeff Herrick, voluntary program director at WXDU in Durham, N.C. “Even logging just the song and artist information is tough for us. We don’t have an electronic system.”

Statistical information will be collected by Sound Exchange, an organization that will also collect and distribute royalties to the more than 400 record labels it represents. At a recent panel held at the CMJ music festival in New York, Sound Exchange spokesman John Simson sounded sympathetic to the plight of community stations.

“We understand that college stations have small staffs and we’re trying to bring down [reporting requirements] to a reasonable level,” said Simson. “But we’ve also been frustrated. When [college stations are] asked to help us we don’t get much response.”

Not so, says Freedman, who also participated in the conference panel.

“Simson shocked me when he said he hadn’t received an actual proposal from noncommercial broadcasters. I know at least the Collegiate Broadcasters Inc. for sure has put out a fairly coherent proposal.”

The CBI has indeed initiated a response. A trip to its Web site reveals that back in April it issued its comments in an official notice to the Copyright Arbitration Royalty Panel that was submitted to the U.S. copyright office and the Library of Congress. Other documents on the site demonstrate the financial burdens that college radio stations are already under as a result of having to pay ASCAP and BMI royalty fees.

For now, many are simply content with the apparently burgeoning sense of collaboration among the recording industry, artists, Congress and webcasting stations. “RIAA and webcasters went hand in hand to visit congressional offices [during SWSA negotiations], says Hanson, the RAIN publisher. He sums up the situation best by saying: “This could be a harbinger of a new era of cooperation between labels and webcasters. They should be working together. I hope they can.”

: F. Timothy Martin is a freelance writer. More F. Timothy Martin

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Is it OK to steal “Downton Abbey”?

Obsessive TV fans are turning into shameless online pirates, as cult shows air in the U.K. before making it here

By John Sellers

Topics:Television, Downton Abbey, Copyright, TV

In an otherwise civil discussion of “Downton Abbey’s” second season, actor Hugh Bonneville let loose on an interviewer who casually let it slip that she’d gone online and viewed a pirated version of the British period drama’s Christmas special, which aired in the U.K. in December but won’t hit PBS until Feb. 19. This turned out to be the wrong thing to tell the man who plays proud patriarch Robert Crawley.

“I wish you hadn’t told me you watched it illegally,” said Bonneville, choosing words that suggested he shouldn’t be writing dialogue for the nobleman otherwise known as the Earl of Grantham. “That’s really pissing me off. Shame on you. Be ashamed.”

Like so many other nerdy “Downton” fans, I also greedily consumed the Christmas special over the holidays in some dark corner of the Internet — but without feeling any such shame.

The reason? Over the past few years, with potential spoilers lurking behind every clicked Web link, rabid American fans of cult-friendly British programming have grown increasingly frustrated that television hasn’t truly gone global. Well into the age of YouTube, iTunes and on-demand viewing, obsessive fans are still thwarted by international restrictions that prevent them from accessing episodes as they become available, even on official sites. And the region-specific system of DVD coding still exists to drive all but the most tech-savvy Anglophiles from ordering copies when they are released overseas (as the second season of “Downton Abbey” was back in November).

Instead, fans are forced to make an outdated choice: Wait it out — sometimes for months — until new episodes of our favorite overseas shows make their U.S. debuts, or find pirated versions somewhere online that abet a ravenous craving to stuff their eyeholes with tweedy goodness. (The controversial SOPA bill, stalled indefinitely in Congress after protests, were aimed, in part, at stopping this kind of downloading. Sites like the Pirate Bay, hosted by overseas servers, often contain access to torrents of full seasons of shows; but truth is, a good Google search will turn up much of what you’re looking for, as well.)

With the old model of importing shows at the speed of a steamship chugging across the Atlantic as obsolete as Mr. Carson’s job in an industrialized Britain, and with few sensible solutions, it’s no surprise that a growing number of superfans feel like their piracy is justified. (Especially when PBS is free anyway! Who loses?)

“I only download when it’s something I just can’t bear to wait for,” says a Brooklyn-based friend of mine, who requested anonymity not for fear of getting outed as a mega-geek but of being charged with copyright infringement. A self-described “nerdy American Gen-Xer who grew up watching the classic ‘Doctor Who’ series when it aired on PBS in the ’70s and ’80s,” he has no qualms about using outlaw means to watch his pet programs, which include ITV’s “Downton Abbey” and the BBC’s boffo “Sherlock” adaptation.

He says that he does so for two logical reasons — for his own gratification, and so that he can geek out with his English friends and others who have viewed the shows as they air or shortly thereafter. But he also says that the versions that air here are subtly different than they were in the U.K.

“I’m kind of wary of waiting for British TV to show up on PBS or BBC America,” he says. “It’s not only the time lag that’s maddening, but the way those versions of the shows sometimes get edited. PBS rejiggered the first season of ‘Downton Abbey’ for reasons I still don’t understand, and BBC America sometimes cuts down shows to jam in more commercials and adds gratuitous intros or voice-overs that I have no use for.”

According to Rebecca Eaton, the executive producer of “Masterpiece Theatre,” there’s not much PBS can do about either problem. In an interview, she jokingly refers to people like my friend as “pirates” and further disparages them by growling “arrrrgh” in her best Blackbeard voice. But it’s with a sense of humor and resignation. “We are completely separate networks, and we program differently than ITV,” she explains. “It’s literally the difference between the way one network broadcasts and the way the other one does.”

When I press Eaton to elaborate on what might be holding them back from making the episodes available more quickly, she is quick to say, “ITV is a commercial station, they have ads, and their shows have to be reformatted to fit the ‘Masterpiece’ time slots.” The reformatting includes editing for length and adding PBS branding. “And ‘Masterpiece,’ every year, has to avoid certain weeks because of pledge,” she adds. “It’s a puzzle of where to fit programs in here.” Her advice to fans here in the States: embrace the concept of delayed gratification.

Eaton does admit that, with a bit of scheduling luck, the turnaround time could be shortened, to a month or so instead of four, as it was with both “Downton” seasons. But, she says, people would still complain about not being able to watch episodes in sync with the Brits. “If they aired a day later,” she says, “illegal pirating would be going on.”

BBC America has satisfied many U.S.-based “Doctor Who” aficionados by airing new episodes of the exuberantly bizarre sci-fi program on the same calendar day as the BBC. “We listened to our fans who wanted to be part of a global conversation,” said Richard De Croce, BBC America’s senior vice president of programming. While the feed still arrives to East Coast viewers a few hours after it airs in the U.K., it’s not much different than American networks delaying broadcasts so that viewers in Western time zones can watch in prime time. But unlike PBS, BBC America has the benefit of being part of the BBC.

So why haven’t TV entities and producers from both countries gotten together and figured out a solution to the issue, especially when there are so many fanatics on both sides of the pond — and, to be clear, this problem goes in both directions — who would be willing to pay for the pleasure, and legality, of instantaneous viewing?

Until international immediacy is embraced by the television industry as a whole, American superfans of British programming who aren’t into delayed gratification will continue to seek out ways to view their shows as if they lived abroad. And, as any shoplifter could tell you, there is an associative thrill that comes with sneaking stuff out of the store. When I asked her to take a stab at what Maggie Smith’s gloriously wry Dowager Countess might say about all of this, Eaton summed up the issue nicely: “Piracy, how thrilling!”

: More John Sellers

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Does culture really want to be free?

Are new media companies "digital parasites"? The author of "Free Ride" tells Salon piracy is killing art

By Scott Timberg

(Credit: l i g h t p o e t via Shutterstock)

Topics:Art in Crisis, Copyright, Internet Culture, Intellectual Property

Over the last few weeks, Salon has been looking at the destruction of the creative class by the Internet, the recession and a transforming economy. A new book, “Free Ride,” by the journalist Robert Levine, intersects with some of these concerns. Subtitled “How Digital Parasites Are Destroying the Culture Business and How the Culture Business Can Fight Back,” Levine’s book looks at how publishing, the music industry, newspapers and other industries drank the dot.com Kool-Aid, effectively killing themselves off. He’s particularly interested in copyright, the U.S. government’s role in unleashing the Internet and the impact of digital piracy.

Levine, a former Billboard executive editor who has also contributed to Rolling Stone, Vanity Fair and the New York Times, asks, effectively: Can the culture business survive the digital age? It’s a welcome reconsideration after the cheerleading that has greeted the Web and the structural changes in the U.S. economy. We spoke to the Berlin- and New York-based Levine about how we got here and where we go next.

The Internet has caused a revolution, and in any revolution there are winners and losers. How do you think that’s worked out here? Who’s won and who’s lost, so far?

I think the revolution is still ongoing. The short-term losers are media companies. The short-term winners are technology companies. The long-term loser is everyone. I don’t think anyone wins. The premise of my book is that most online companies rely for their content, and hence for their money, on traditional media companies. If they destroy that business model, it’s unclear what they’re going to have to distribute. If you look at YouTube, eight of the top 10 videos are major-label music videos. If the major labels shrank to the point where they can’t make videos, YouTube isn’t much of a business. It’s still a great social phenomenon, but it’s not much of a business.

Was this inevitable, or were there policy choices that led to this state of affairs?

Oh, I think it’s all policy choices. It’s inevitable that there would be a problem, but technology creates uncertainty and regulation solves uncertainty. When the car was [created], no one knew how fast you were allowed to drive. We came up with speed limits and that solved some of the uncertainty – didn’t solve it perfectly, but it made the roads safer. As copying technology evolved, we came up with other copyright laws to regulate it. Media companies thrived. Technology companies thrived. And despite not liking each other, they thrived together. A VCR isn’t very valuable if you can’t rent any good movies. Movies aren’t very valuable if you can’t watch them on a VCR. Then [Congress] came up with the DMCA, which I think was sort of the original sin. The idea was we have to say something before you want to take something that infringes on copyright down…

And DMCA is?

I’m sorry, the Digital Millennium Copyright Act. The important provision was notice and takedown. You have safe harbor from copyright liability if you follow this notice and takedown procedure. It turns 300 years of copyright law on its head by making it an opt-out system instead of an opt-in system. Dozens of sites will use this interview until you specifically tell them not to. That’s very different from “they can’t use it until they ask for permission.” What that does is it destroys the market.

One of the desirable things that copyright laws do is create some kind of market for intellectual property. We’ve had that for 300 years. That should change and it should evolve, but what we’re doing now is we’re dismantling that market. I think that’s really scary, because, first of all, you are going to see a lot of job loss. Secondly, I think you’re going to see the quality of things get affected. You see that happening with newspapers already. Third, I think the whole system suffers. Google News is not as useful if there’s not as much news to Google. I mean, Google is an information search tool, right? It’s not a moral issue. But the problem you’ve created, you create a very powerful incentive for somebody to create a better search engine. You eliminate [the] incentive to create better journalism. That is a problem.

Music was one of the first businesses to get hit hard. What happened there? Was it all piracy?

This is one of those questions that is hard to answer. It’s very hard to say exactly what caused what, and I would argue that separating those things out is impossible. Right now, the single biggest problem with CD sales is all the stores where you used to buy CDs are closed. Well, what caused that? Well, people started buying songs online. That became a problem because people were only buying singles instead of albums and they weren’t spending a lot. Well, why did that happen? Because piracy put so much downward pressure on prices that you have to take any deal, whether it’s a good deal or a bad deal. It’s very hard to separate these things. Any study where people say this has nothing to do with piracy is a bunch of bullshit.

When the Internet emerged, we thought we would be dropping the middleman out of this, that musicians and artists would connect directly with their fans.

The middleman hasn’t been eliminated. There’s a new middleman. YouTube is the new middleman. YouTube, just now, was giving professional content creators advances against future royalties. Is it a good middleman? I don’t know. YouTube has a lot of good technology. They obviously have other advantages. It could be a smart deal. It depends on the advance; it depends on what you want. But I would say that the idea that YouTube is fundamentally different from a record company is silly. YouTube probably has a higher percentage of the market for online video than all four major labels combined have of recorded music. Who’s stopping their market power? No one, and everyone is saying it’s a progressive thing.

Europe has responded a little differently to piracy and assaults on copyright. What effect has it had?

Well, I think it’s two things. One is, in continental European law, there’s a different tradition of copyright. One of my problems with the “copyleft” is that you don’t hear that. If you read Lawrence Lessig and Tim Wu and all those sort of copyleft books, and there are 25 or 30 of them, you’ll see copyright is a limited monopoly and a balance between the author and the public interest, if you will. That is very true. It’s the roots of Anglo-American copyright law. What you rarely hear is that the French tradition – and this applies, to varying degrees, to a lot of other countries in Europe – copyright is a fundamental right. It is your work and you have a fundamental right to it. What’s interesting is you have a lot of people talking about the right to remix. In Europe, not only is there very little legal support for a right to remix, there’s a decent amount of support for a right not to be remixed. You have a right to the paternity and the integrity of your work. It’s a moral right. So someone says, “I want to remix Rob Levine’s book so that every 10 words it’s going to say: Rob Levine eats stinky poo” – by the way, I’m fairly certain that somebody would call this an art project – I can say, “No. I have a right to my work.” I think a lot of people would find that very reasonable.

The idea that the Internet is somehow immune from law or regulation or the protection of people’s rights has been seen as a progressive idea. It’s the “free and open Internet.” But if you really think about that for a second, that’s not a progressive argument. It’s a libertarian argument, because the same regulations that annoy you might be the regulations that protect me.

From the beginning, hasn’t the Internet been framed as the second coming of the Wild West?

I think it’s been framed as the second coming of Jesus H. Christ in full 3-D Cinerama Smell-O-Vision. Look, a lot of very smart people believe the Internet will change things that won’t change because they come out of human nature. Like people look at Wikipedia and they say, “See. People will all work together. We don’t need regulations.” I think that Wikipedia is a great thing but I wouldn’t want to change my system of government based on the 10-year track record of Wikipedia. Right? It gets a little wacky. People like to cooperate; people like to give things away. Yes, but people also like to violate the rights of other people. I want certain kinds of protections.

Your book is about several industries. You talk about the music industry, the movie industry, publishing, etc. I wonder if there is a common mistake that you saw most or all of these industries make along the way?

Yes. Listening to people who don’t have your interest in mind – they have their own interest in mind. When Google says newspapers should be free on the Internet, they may really believe that, but you also have to keep in mind that it’s a huge help to them. Right? I was on a panel a couple of weeks ago and this guy from Creative Commons said: “You should concentrate on art; you shouldn’t worry so much about these contracts.” That’s exactly what any artist should never do. The record company guy does not want to make you money; he wants to make him money. Same with your concert promoter. Same with Google. They are not on your side. They’re on their side. I don’t think that’s a bad thing, because Google’s greed and self-interest has led to the creation of a valuable company, and many jobs, and some really remarkable technology, but it’s the government’s job to make sure they don’t trample the rights of other people.

How often is free speech used as a cudgel against copyright that claims free speech?

Several times a minute. Free speech is very important in the U.S. It’s a more important value than copyright. In most countries it is. But there’s an argument on the other side. There’s a great quote by Justice Sandra Day O’Connor that says: “The Framers intended copyright itself to be the engine of free expression. By establishing the marketable right to the use of one’s expression, copyright supplies an economic incentive to create and disseminate.” That’s a pretty powerful argument on the other side.

Her argument, which I think is yours, is that copyright doesn’t inhibit free speech, but encourages free speech.

I think it does both to different degrees. It’s not that simple. Let me be clear, I hammer on that Justice O’Connor quote because it’s not something you’ll see in a lot of other books. But this is a complicated issue. Copyright often encourages free speech. It sometimes inhibits free speech. The idea that copyright is the be-all and end-all of free expression is simplistic. The idea that it inhibits free speech is simplistic. I think this is true of politics in general, but everyone argues about stuff like a 4-year-old.

Entertainment companies talk about digital theft. In my mind, that’s not a useful way to talk about a problem. The problem is copyright infringement. If you download my book illegally, I’m not angry. I hope you don’t. If a lot of people do it, I’ll be angry. The idea that someone is going to download my book illegally doesn’t bother me. The idea that someone is selling advertising against that transaction and profiting from it really does upset me. There’s just a lot more nuance there. You have one side calling it digital theft and saying that downloading things is a moral wrong. You’d have to ask a philosopher. Then you have another side saying you have the right to see movies. Well, that’s even dumber. I don’t think anyone is going to go to hell for downloading “Iron Man 2.” But saying you have the right to download it is also pretty silly.

We need to look at what copyright was meant to do. It was not meant to inhibit the copying you do at home. It was meant to give you monopoly that’s limited in scope and that’s limited in time to profit from your own work. That’s what I want. I want to have a monopoly on profiting from my own work. So, if you lend my book to a friend, God bless you. If you put it on the Internet and distribute it to 100 people, even if you are not benefiting from it directly, that goes against what we’re talking about on a very basic level. You can hire expensive lawyers to parse this in all sorts of ways, but let’s get real here. Mass distribution of stuff like this is really a problem. That’s what I’d like to see: a nuanced legal solution to solving and a nuanced discussion of what’s going on.

If you look at countries with functioning copyright systems and countries without functioning copyright systems, who creates more culture? That’s not a question. Cory Doctorow gave a speech at the New America Foundation about how copyright endangers democracy. That’s not a responsible comment. That’s just a bunch of bloviating. Democracies tend to have copyright. Countries with copyright tend to be democracies. I’m not suggesting a causal relationship, but to suggest that copyright endangers democracies – it doesn’t even meet the laugh test.

Let’s look to the future. You say in your last chapter: “Over the next decade, we will choose between two competing visions for the online world: media companies want the Internet to work more like cable television, while technology companies want cable to run more like the Internet.” Tell us what you mean by this.

If you think about the cable system, it’s closed. You can’t publish or broadcast without permission; you can’t receive or consume without paying. On the Internet it’s the opposite. Anyone can publish or broadcast; just about anyone can consume without paying. And again, sorry to keep hammering on this, I would say that those are two absolutes. There’s a lot of problems with the cable system. It leads to monopolization. The prices keep going up and there’s a lack of diversity of points of view. But there’s also good things about it. Television has never been better. We enjoy better TV. If you say, “Oh my God. Look how my cable bill rose in the last 10 years,” what you get is completely different. It’s a revolution of quality. Now let’s look at the Internet. It does a lot of things as well. You’ve got free expression. It’s a great thing. The Internet is very valuable. You get an incredible diversity of opinion. It’s very cheap. There’s a lot of good things about it. There’s also some bad things about it. It resists regulation in a very fundamental way. You have some people saying the Internet must be cable-ized; you have other people saying that cable must be Internet-ized. Is that really the best we can do? My argument is that we deserve better. I don’t want to choose between “Breaking Bad” and the skateboarding bulldog.

I would like to see the advantages of both. I would like to think the technology would allow that. And I’d like to think we can regulate smartly to encourage that.

What would you like to see happen? What’s the best-case scenario for the situation we’re in now? Because some things aren’t coming back totally. Newspapers, publishing, probably not coming back.

I’d like to see enough law applied in a smart way that we can bring back a market. U.S. publishing is never coming back, but I think we can enforce enough law to create a market, and that’s what we need. There’s obviously problems with the market. I’m not one of these “worshiping at the altar of the market” kind of dudes. But the market for intellectual property has served us very well both in terms of job creation and in terms of art. And I think that that is very important.

: Scott Timberg is a former Los Angeles Times arts and culture writer who has also contributed to the New York Times, GQ and other publications. He is the co-editor of the book "The Misread City: New Literary Los Angeles." He blogs at scott-timberg.blogspot.com/. More Scott Timberg

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Your favorite author, brought to you by a wealthy patron

As copyright erodes and the book industry changes, a combination of Kickstarter and the rich might fund writers

By Laura Miller

(Credit: iStockphoto/NickS)

Topics:Art in Crisis, Copyright, Writers and Writing, Publishing News

A passage from Stephen Greenblatt’s new book, “Swerve,” on Renaissance book culture, has this to say about how writers paid their bills several centuries ago:

Authors made nothing from the sale of their books; their profits derived from the wealthy patron to whom the work was dedicated. (The arrangement — which helps to account for the fulsome flattery of dedicatory epistles — seems odd to us, but it had an impressive stability, remaining in place until the invention of copyright in the 18th century.)

We’re so accustomed to thinking of copyright as the foundation of a writer’s livelihood that it’s difficult to imagine how authors could survive without it. Yet we may need to start doing just that.

Our current copyright laws and (often ham-fisted) attempts to enforce them have many critics, but you don’t see a lot of people advocating their complete eradication. They don’t really need to. The biggest threat to copyright comes from the advent of digital reproduction, which has made piracy much, much easier. Reform could well be beside the point; copyright seems poised to die the death of a million cut-and-pastes.

If that happens, and authors can again expect to make nothing from the sale of their books, how will they get by? The majority of authors, of course, can’t make a living from book sales as it is. They teach or work for the phone company or scrape together enough grants and fellowships to keep a roof over their heads. It’s possible that writing books will become a hobby rather than a profession — like, say, golf — for all but the tiniest minority of superstars, people so famous they can charge fees to make personal appearances.

Writers are understandably dismayed by this scenario, but readers ought to be, too. The eight hours or more per day that your favorite authors will spend servicing air conditioners or drafting marketing reports is time they won’t have to devote to writing their next book, the one you’re so eager to read. That means fewer books from some of our most talented novelists, and perhaps fewer yet from historians and other nonfiction writers; the research for their work can take even more time than the actual writing.

If this comes to pass, we may indeed see a revival of the patronage model Greenblatt describes, with wealthy fans supplying the writers they admire with the funds they need to concentrate on their work. In truth, we already have an indirect version of this in the form of arts foundations underwritten by private donors. The notion of a writer being personally sponsored by a rich individual may strike the contemporary American as distasteful, but as Greenblatt points out, unless you want to dismiss the entire corpus of Western literature written before the 1700s, you have to admit that the arrangement can produce great books.

Still, it’s a system inclined to serve the interests of the rich, and it’s not like we need any more of that. Recently, the technology that led to this dilemma has also offered a potential solution in the form of crowdsourced patronage. The best-known of these new funding platforms is Kickstarter, a website that allows people to raise money for all kinds of projects, including books (and magazines and bookstores). The would-be creator presents a proposal consisting of a written description of the project, a list of premiums awarded to donors depending on the amount they pledge, and, most important, a video pitch. The creator sets a funding goal and a closing date for the proposal. If the full amount isn’t reached by the time the proposal expires, the creator gets nothing.

The donors to a Kickstarter project don’t own any rights to the results, but their donations can win them such unusual benefits as having characters named after them in a forthcoming novel. The author may promise to write an ancillary short story about the supporting character of their choice. Other authors provide special signed editions of the book or, in a few cases, even a chance to offer input while the work is in progress.

On Kickstarter, book proposals have attracted from as much as $85,000 (for a memoir about psychedelic visionary Terence McKenna, to be written by his younger brother) to as a little as $324 (to commission original cover art for a self-published e-book). The more modest the goal, the more likely it will be met. At the very least, a Kickstarter project looks like an excellent way to cadge money from friends and family without having to face them in person with your hand out. The average successful proposal seems to run a few thousand bucks — not as much as a traditional hardcover book advance, certainly, but more than what many writers might get from a small press.

This fundraising method is perfect for modest projects aimed at a limited, but still keen, readership. The earnest confessional poetry of Anne Jackson, for example, would never find much favor in the poetry establishment, but there are enough investors moved by her story of creative struggle following a close friend’s death to contribute a total of $11,700 for an e-book of “poetry, photos & stories behind them.” Quite a few traditionally published poets would regard that as a decent advance. It helps that Jackson already has a following as a result of the spiritually oriented self-help books she wrote for a traditional publisher — and that she’s young and personable.

Many aspiring writers fantasize about the audience they’d find if interlopers like publishers and agents would stop coming between them and the reading public. Publishers, they complain, fixate too much on superficial assets like a mediagenic face or personality, influential connections, an established name or a promotional “platform” instead of just concentrating on literary merit.

To judge by what works on Kickstarter, however, democracy won’t offer any improvement. Those flashy garnishes are exactly what the public cares about. The most successful book projects have an already-established audience, an attractive creator, a high-concept premise and/or an affiliation with someone famous. Above all, as Rob Walker observed in the New York Times, a stand-out video presentation is crucial to sealing the Kickstarter deal.

April Winchell, the founder of the humor site Regretsy.com, for example, raised an impressive $65,ooo to publish a book of fake Finnish folklore and pay for a trip to Finland by calling on her established fan base and putting together a hilarious video. Does anyone really care much about the book — or, for that matter, about an edition of “The Adventures of Huckleberry Finn” in which every instance of the word “nigger” has been replaced with the word “robot”? Probably not. Yet both pitches are amusing enough to elicit a surprisingly large number of small, what-the-hell pledges.

A classic midlist novelist who published two books with small presses but couldn’t place his third, Scott Morris managed to raise $12,700 to help him keep working on it. Would he have been as successful if he didn’t look like the popular conception of a ruggedly sensitive writer, or if his video didn’t feature several handsome and vaguely familiar actors (the guy who played the Winklevoss twins in “The Social Network”!) talking him up? Hard to say.

Whatever the merit of these individual projects, it’s hard for a reader to get enthused about a system in which the worth of a writer’s next book is judged by his or her ability to make a catchy video. The correlation between those two skills is far from obvious, as Jonathan Franzen demonstrated in the promo video he was obliged to make for “Freedom.”

With primarily visual works — comics and art or photo books — Kickstarter seems a great way to solicit the extra cash needed to produce top-drawer work. Comics creators have flocked to it, hoping to finish discontinued series or add color to black-and-white books. But can it bring us the next Ann Patchett or Robert A. Caro? Or is that another part of our future that will be determined by billionaires?

: Laura Miller is a senior writer for Salon. She is the author of "The Magician's Book: A Skeptic's Adventures in Narnia" and has a Web site, magiciansbook.com. More Laura Miller

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Surprisingly, even a James Franco project isn't immune to legal battles over "iconic" images

By Drew Grant

"The Wizard of Oz."

Topics:Movie news, Celebrity, Copyright, Movies

When you think about Dorothy’s slippers from “The Wizard of Oz,” are they silver or ruby? How about the Wicked Witch … what color is she? What kind of dog is Toto?

Your answers to these questions are probably based on the 1939 MGM (now Warner Bros.) classic, “The Wizard of Oz,” and not the 1900 fairy tale “The Wonderful Wizard of Oz.” And unfortunately, this could mean trouble for Sam Raimi and James Franco’s new star-studded project, “Oz, the Great and Powerful,” according to a new ruling set by the 8th U.S. Circuit Court of Appeals.

See, for a while now the characters in “The Wizard of Oz” have been considered public domain, which is why there are so many strange adaptations (“Return to Oz” being the most terrifying), since no one has to pay any royalties on the story. But the circuit is now clarifying that this doesn’t include the iconic imagery that was created for the Judy Garland film:

We agree with the district court’s conclusion that Dorothy, Tin Man, Cowardly Lion, and Scarecrow from “The Wizard of Oz” … exhibit “consistent, widely identifiable traits” in the films that are sufficiently distinctive to merit character protection under the respective film copyrights … Put more simply, there is no evidence that one would be able to visualize the distinctive details of, for example, Clark Gable’s performance before watching the movie “Gone with the Wind,” even if one had read the book beforehand. At the very least, the scope of the film copyrights covers all visual depictions of the film characters at issue.

Considering all the times a version of “Oz” has been remade for stage and screen (and I’m thinking particularly of “Wicked” here, which has Elphaba’s skin the same emerald hue as the witch in the Warner Bros. movie, not specified in the books), and the fact that there are several “Wizard of Oz” projects floating around Hollywood right now, this ruling could have bigger implications outside the Raimi project.

Luckily, Oz interpreters have a little bit of wiggle room: There are at least 44 major changes in the Warner Bros. movie from the Frank Baum book, though it’s doubtful any of them will be iconic to viewers as “Oz” material, precisely because the famous film omitted or altered them. (Luckily for him, Raimi’s plot already sounds way different from anything we know of our beloved Wizard and his relationship to Oz.)

But even outside the Yellow Brick Road, this ruling could potentially affect any films that are based on other sources but have more famous movie predecessors. Luckily for directors like Tim Burton (who has remade both “Alice in Wonderland” and “Charlie and the Chocolate Factory), there is usually enough original material left on the cutting room floor of the influential predecessors to create entirely new imagery from.

: Drew Grant is a staff writer for Salon. Follow her on Twitter at @videodrew. More Drew Grant

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Mike Tyson’s tattoo artist can’t stop “Hangover II”

Despite a copyright lawsuit over the ink on Ed Helms' face, the show will go on

By Drew Grant

Tyson's tattoo on Helm's face.

Topics:Movie news, Copyright, Movies

“The Hangover: Part II” premieres this week, despite an attempt at an injunction from the man who tattooed Mike Tyson’s face in 2003. A federal judge ruled that S. Victor Whitmill could not stop Warner Bros. from releasing the film, despite the artist’s claims that the movie infringed on his copyright of Tyson’s facial tattoo. Warner Bros. claims the image falls under fair use.