Playing Musical Moneyball

How one entity’s exercise of its rights damages the music ecosystem

How one entity’s exercise of its rights damages the music ecosystem

A month ago, another small-time live music gig ended in my hometown, Philadelphia. It was a modest setup, a makeshift stage on the second floor of a Mexican restaurant, but over the previous five or so years, it cultivated a following among the city’s musicians and open-minded listeners. It ended because BMI, the worldwide performing rights organization, pressured the place to pay back licensing fees. Even though maximum capacity is around 60 people, BMI seemed to think that its constituents were being cheated. Unprepared for a fight, the venue took the course of least resistance and discontinued its live music. Game over.

At least in the short term, where everybody’s keeping score, BMI seems to have “won” a victory here. But go up from the daily skirmish level, take a longer view, and then the outcome is not so clear. By shutting this tiny gig down, BMI’s exercise of its rights comes at the expense of that strangely fragile vibration we know as live music. It means a few less people will get the chance to encounter original works and creative versions of enduring standard tunes, including those registered by BMI and ASCAP.

Multiply that by thousands of similar confrontations across the country, and the mostly antiquated live performance licensing apparatus begins to look like an unintended consequences machine. In the process of forcing compliance, the performing rights organizations pretty much ensure that there will be less live music at a grass roots (ie, not grant-funded or touring) level. That means, ironically, fewer people being exposed to the classic songs that BMI and ASCAP represent.

That also means fewer people bumping into the unexpected: At a moment when the Spotify-gorging population makes its own choices about every moment of music it ingests, there is great value in the encounter with live music that exists outside of a typical listener’s comfort zone. Already there are several generations who’d rather graze recorded music in isolation than be subject to the unknown; with more BMI “wins,” that trend will accelerate. (Forgive my ignorance, but shouldn’t a part of BMI’s core mission be to increase the chances that the average smartphone user might stumble upon a great BMI-repped song somewhere out in the non-virtual world?)

And that’s not all: On the supplier side, such zealous enforcement means fewer employment opportunities for live music—not simply because existing ones have been shut down, but because word gets around, and BMI’s actions tend to have a radiating “chill” effect on establishments that might consider offering live music in the future. This is how nascent little “scenes” die. Besides, gigs are not just sources of income for musicians—they’re also central to the growth process, a kind of on-the-job training that cannot be replicated in a classroom.

I went to the restaurant where music used to happen the other night, sat at the little bar and took in the surroundings. There was one of those big touchscreen jukeboxes mounted on the wall, and mostly it played ignorable “classics” from the Journey-Foreigner axis. Where there once had been the energy of live music, now things were fairly flatlined. A few tables were deep in conversation, nobody seemed to care about the audio environment—it was as hollow and generic as a mall food court.

It was as good a place as any to ponder this death-spiral vision for the future of music. In the headlines that day was a story about ASCAP, proclaiming that the organization had surpassed the $1 billion mark in fees collected for the last year—I wondered if that meant these outfits are getting better at administering rights in the (greedy, clamoring) online space where Pandora lives, or by shaking down the little guys who believe in live music? “I Wanna Know What Love Is” was playing; I fired up my phone because I was momentarily curious about the songwriting credit. I couldn’t easily find it on iTunes, it was two screens deep in Shazam, and so on. Google brought me the answer right away, and that, in its own way, was sad: Here are all these portals offering music, and none of them seem to think it’s important to tell users who actually did the creative work of said music—who wrote the song, who plays on it and all that. How come ASCAP and BMI aren’t fighting that status quo? What organization is standing up for the Nashville session guitarist, whose work is critical to the success of many artists but who toils in a career-threatening new-world digital anonymity?

The entire ecosystem that surrounds the commerce of music must change.

First, it has to be seen as an ecosystem—interdependent industries with shared interests, not warring factions grabbing for every last consumer penny on the table. This ecosystem is not thriving now. Its prospects don’t look good, in part because as BMI has demonstrated, these entities don’t see their work as connected to a larger whole. They don’t act in ways that respect music, according to a set of higher ideals all aimed at the goal of sustaining and furthering music itself.

Look around and you can see this behavior in every sector of the music economy…

The big streaming services like Spotify have seduced millions with the promise of huge databases stuffed with tunes, and then on the back end paid out ridiculously paltry sums to the artists who created those wares—an entrenched imbalance that works against the creation of music in the future.

Those same big portals, in lockstep with storefronts like iTunes and Amazon, have for years made it difficult for users to discover who did what on a recording. Credits might be cumbersome, but they are one way to convey respect. If the conduits don’t respect creators, the end users never will.

The big labels have spent a decade crying over the revenue lost to online piracy, an understandable concern. But in that time, they’ve done very little to cultivate genuinely new music, from talents who might influence the culture over the long term. Everything is about the winner-take-all payout; at the major label level, the industry is geared to the long odds of a Beyoncé-scale success to the exclusion of more modest (and possibly more musically challenging) artists. The executives best positioned to champion that artistry are so terrified about their numbers, they have abdicated the “higher calling” aspect of recorded music. They’re in the hype business, and these days what they’re peddling is woefully clear: A parade of Robin Thickes, whose highly derivative song cost $6 million to create and promote. With that kind of money, you could send 100 Lang Langs or John Coltranes out into the world and have them go door-to-door, to remind people what talent developed over years of hard work sounds like. Because they don’t encounter that on TV too often, and thanks to the performing rights organizations, they can’t hear it live very often. And so on. A cycle of shortsightedness.

Stakeholders in the music business as it’s currently configured talk the good game about art, cultivating audiences and all the rest. But they typically act according to the interests of that faceless Machine Pink Floyd was welcoming us to, and, by extension, its shareholders. They don’t stop to consider the reverberations of their decisions, the zen notion that the action of one impacts all, how one entity’s exercise of its rights can damage other aspects of the music ecosystem.

Perhaps a modest shift in priorities is overdue? Because right now, the question that matters most isn’t about the “hows” of payment structure, distribution, winning over the attention-strapped consumer, protecting intellectual property. It’s much more basic: What’s good for music?

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