Slippery People

It has been hard to escape the makers of T2: Trainspotting this week.

The director (Danny Boyle), the stars (Ewan McGregor, Ewan Bremner, Jonny Lee Miller and Robert Carlyle) and the film’s composer (Rick Smith of Underworld) have been on the promotional trail. They have been discussing the original Trainspotting, which came out in 1996, as much as they have the new film. This is not surprising. As well as featuring the same cast, crew and characters as the first film, T2 constantly harks back to it. The new story touches the old one at the edges. This includes the music, which echoes the original soundtrack. Smith has included chords, textures and rhythms from ‘Born Slippy’, the Underworld song that memorably closed the original.

Much of the discussion has been about ‘Born Slippy’ itself. Speaking on the Today programme on Tuesday, Smith was asked how the song came to be in included in Trainspotting. He replied:

It was very serendipitous. Danny [Boyle] was using our album at the time, Dubnobasswithmyheadman, as what you would call the heartbeat or the tool that use to get the rhythm of the film together - without any intention of course of the whole film being about that album and the music - and took a break one day for a lunch, walked across the road, out of Soho, into HMV and saw the vinyl for ‘Born Slippy’ in the racks, bought it, as he tells me, and listened and immediately knew that that was how he wanted to finish the film.

This is a nice story, but it is not true. I know because it was one of my old friends, Neil Williams, who suggested the track for the film. He put the record straight on Friday, writing to Radio 5’s Film Review show, which was featuring Danny Boyle as a guest. Neil’s letter stated:

I was fortunate enough to be one of the assistant editors on the original Trainspotting movie. During the shoot it was my job to synchronise the picture and sound which meant I had the rare privilege of effectively being the first person to see and hear all the footage shot for the film. As these remarkable images and sensational performances came together before my eyes there was this overwhelming realisation that I was at the centre of something truly special. I remember Danny sending a music cassette from the shoot in Glasgow to our cutting rooms in London, which outlined his ideas for source music to soundtrack the film and on it were Bowie, Blondie, Björk, Brian Eno, Iggy Pop. There was also a note suggesting that we try and find dance music similar to the theme produced by Leftfield for Shallow Grave on which I was a trainee. Danny and I shared similar music tastes and we both loved the likes of Leftfield, Orbital and Andy Weatherall. I brought in a collection of CDs with track suggestions written on the cases in white chinagraph pencil, which we used to mark the edits on the film. I had a then little known follow-up single to the album Dubnoheadwithmybassman by Underworld, which was an album I knew Danny liked and I wrote on the CD ‘try track 2’. This was ‘Born Slippy’, a track which was often played at house parties I went to with my friends. There has been no greater moment in my film career than when Masahiro, the editor, told me that Danny had chosen it to be included in the film and showed me the initial edit of the astonishing end sequence. Some weeks later, after picture lock, I got a call from Andrew McDonald asking if I could come out to the sound mix and could I bring the ‘Born Slippy’ CD with me. I travelled out to the mix the same day, was asked if I could leave the CD there so that the sound technicians could transfer it as they didn’t have one. Andrew eventually returned the CD to me at the start of the next project, A Life Less Ordinary, so essentially it’s my CD that bears the now faded chinagraph note that is actually on the soundtrack of the film.

After hearing the letter, Boyle replied: ‘Ah. There you go. I remember Neil’.

Many popular music academics argue against the cult of authorship. They think that it is wrong to look up to musicians and composers and it is particularly remiss to regard them as having some sort of unique genius. These theorists view popular music as an essentially collaborative form and argue that little of it is wholly original.

Nevertheless, as these conflicting stories reveal, the cult of authorship will not go away. If anything, it is proliferating. It is extending beyond songwriting and performance to encompass the sourcing of music for films. The ‘Born Slippy’ saga also illustrates the centralising tendency of authorship. It would seem fitting if it was Boyle who initiated the use of the track. After all, as Smith’s story indicates, ‘Born Slippy’ became the pulse of the film, it was the inspiration for a visionary director. It was also the start of an important collaborative partnership. Smith worked with Boyle on the opening ceremony for the London 2012 Olympics, in addition to working on the sequel film.

            But it was Neil who first chose it. He deserves some credit too. The use of ‘Born Slippy’ helped to make Trainspotting a landmark film, while the film made ‘Born Slippy’ a landmark song. It had been largely ignored when it first came out. There had been a buzz about Underworld, following singles such as ‘Rez’ and ‘Spikee’ and the album Dubnoheadwithmybassman. But ‘Born Slippy’ was something of a flop. I remember discussing it with Neil when it was released, telling him that I found it disappointing. He was the only person I knew who was really into it. He was also the person who said to ignore the instrumental version, which the band originally promoted as the main mix of the song. For him it was the ‘Nuxx’ mix that worked. The original single made it to number 57 in the UK charts. A year and a half later, following on from the Trainspotting movie, ‘Born Slippy’ was re-released with the Nuxx mix up front. It made it to number 2. Soon half of Britain was shouting ‘lager, lager, lager, lager’.

Assets and Equity

Assets. They have long complicated music industry economics. Record companies have argued that they deserve to own the majority of sound recording copyrights because a minority of artists succeed. They need to keep the copyrights of the 10% of artists who recoup their advances in order to pay off the losses of the 90% who are in debt. While the losses from ‘unsuccessful’ artists are detailed in record company balance sheets, the value of their copyright catalogues does not appear there. Nevertheless, as the Music Managers’ Forum has argued, ‘the copyright catalogues of the record companies are their most valuable asset’. Traditionally, the biggest deals that have been made in the business have arisen when these catalogues have been sold on to other companies. These transactions have happened when the major companies have merged with one another and when larger companies have bought up indie labels. Derek Green, head of China Records, made the economics of the indie sector clear:

Well, the only reason we do it is because on our balance sheets we have the value of our masters and the value of our contracts marked as zero. Therefore technically every year our accountants tell us we’re bankrupt. But what we really know and believe is that the majors will pay millions to buy us.

The crucial factor about these takeovers is that the money went to the owners of the record companies that were being sold. Unless artists happened to have equity in the company, they would gain little, nothing or perhaps even lose out from the sale. There are many stories of artists who found themselves marginalised when transferred to a new corporation.

            The sale of one record company to another did at least have a degree of honesty and transparency about it. The owner of the record company that was being sold would be profiting from an institution that he or she had overseen. The assets up for sale were the recordings that they had invested in, even if some of those recordings had been fully subsidised by artists who had recouped.

Streaming provides continuities and discrepancies with this model. We still have the situation whereby companies are making little profit – even Spotify is running at a loss. The low sums of money being generated by these companies is presenting a problem for record labels, whose income from streaming is, in the first instance, based on a share of advertising and subscription revenues. The record companies’ songs might be being streamed billions of times, but this doesn’t mean that advertisers are willing to invest in these new advertising platforms or that consumers are willing to upgrade to subscription services. Last year in the UK there were 14.8 billion individual audio streams and 14.3 billion video streams. Despite this vast traffic, the money generated by subscription services only constituted 12.4% of the total income for recorded music, while the money from ad-supported services - although it was the avenue for the vast majority of those 29 billion streams - only constituted 3.5% of the same market. In total, the income from streaming contributed £115m to the UK’s recording ‘sales’ last year. Vinyl albums and CDs, meanwhile, contributed £320m. Record companies are nevertheless continuing to have faith in streaming services. If the income generated by these services hasn’t managed to offset the decline in physical and download sales, streaming is having the effect of converting ‘pirate’ users of musical content into legal consumers.

What is more significant for our immediate purposes is that record companies have found diverse ways to generate income from streams. Their share of advertising and subscription revenue is backed up by minimum guarantees. Each record company who enters into a licensing agreement with a streaming company will be guaranteed a minimum sum each time one of their tracks is played. In addition, some record companies receive a guaranteed sum for each subscriber who signs up to the streaming company. These minimums only come into force if the revenue target is not reached. In the instances where this income did come into play last year, it will have been reported as part of the total streaming income of £115m.

There are, however, areas of streaming income that are not reported on the record industry’s balance sheets. Most importantly, record companies demand equity in streaming companies as part of their licensing agreements. Here, as the MMF have identified, there is an echo of the ‘bankrupt’ nature of indie record companies. Just as those old indie companies were aware that their impoverished balance sheets disguised the fact they could be worth millions if sold on to larger record companies, today’s record labels are aware that, when it comes to streaming, the ‘single biggest revenue generator may be the sale of the streaming business, either to an existing major tech or media firm or through flotation on a stock exchange’. What is more, the record labels might even ‘agree to less favourable terms on revenue share and minimum guarantees, where income is shared with the artists, in return for a better deal on equity’.  And who will get the money from the sale of the sale of the streaming companies? The MMF have reported that:

The assumption is that many labels will keep these profits in their entirety, citing clauses in artist contracts that say the record company is only obliged to pay royalties to artists on income directly and identifiably attributable to a specific recording.

Here there is a difference to earlier practice. The record companies will be profiting from the sale of companies that they haven’t even had a hand in creating. The labels might argue that they have provided the essential content that has transformed streaming companies into valuable commodities, but that content is sound recordings, which have been created and in some cases paid for by recording artists. The record companies will not even be selling this content on to the new purchaser of the streaming company: the purchasing corporation will still have to licence the recordings. No wonder then that it is artists, rather than record companies, who are raising questions about the land of streams. 

Sympathy for the Mechanical

Although I’m not always sure of the motivations, there is a politics to the reporting of music industry sectors. In particular, there has been a desire to emphasise the health of the live music industry at the expense of recorded music.

The statistics that have been most widely used in support of this scenario come from Adding Up the Music Industry, a series of reports issued by PRS for Music. Sadly these reports are no longer compiled: the last of them concerns revenues for 2011. It calculates the total money generated by the UK music industry in this year at £3,793m. Out of this figure £1,057 comes from business-to-business income and £2,736m from business-to-consumer. The latter is divided into £1,112m for recorded music and £1,624m for live music.

And so live music triumphs over all other comers. It is this outcome that many analysts have taken up and run with. The reports have their problems, however. Live income is compiled in a different manner to the other streams. As well as documenting the primary market – the money spent on purchasing tickets from ticket agents and venues – the figure includes secondary ticketing and ancillary spend. Secondary ticketing is money derived from the resale of tickets. Although the report states that this business model is ‘legitimate under UK law and is an established practice’ it is somewhat contentious. Moreover, none of the money from these sales goes to writers, musicians, publishers or record companies. At the very least this income is comparable to the second hand sale of records, an income stream that is omitted from the figure for recorded music. Under a different legal system it could be considered more akin to bootlegging. The report calculates its worth at £208m.

Ancillary spend is the extra money that is spent at gigs and festivals: the purchase of ‘merchandise, food, beverages, parking and public transport’. It is questionable whether the money spent on food, drink and transport should be included as part of music industry income. Some money from these sales might trickle through to a few performing artists, but it will be tangential and minimal, and in these instances should be included in the business-to-business figures, rather than business-to-consumer. Moreover, although these sales are included in the live income stream, money spent on food, drink and parking when going record shopping is not included in recorded music. This is the case even when the record shops are serving food and drink themselves.

Artists can make money from merchandise. There are famous cases where bands have made more money from t-shirt sales than they have from ticket sales. It is unfair, however, to include the sales of merchandise in the live tally while omitting it from recorded music: these reports do not include the sale of t-shirts and other merchandise in record shops.

It is difficult to calculate how much ancillary spend is worth as the 2011 report fails to provide precise figures. The best it offers is that festivals and arenas each account for ‘around 25 percent of the market’ and that ancillary spend at festivals is equal to ’95 percent of the average face value ticket per person’ while the ‘level for most other venue sizes was between 35 and 50 percent’. At the very least, then, ancillary spend is equivalent to a third of the money spent on primary tickets. The live income stream can therefore be broken down into £208m for secondary ticket sales, £472m for ancillary spend and £944m for primary ticket sales. It is only the latter figure that can effectively be compared with the statistics for recorded music. Looked at this way, live income is the lower of the two.

Recorded music is unfairly represented in other ways. In 2011 PRS for Music reported £65m income for ‘mechanical revenues’, i.e. the money that songwriters and publishers earn from record sales. Adding up the Music Industry contrasts the ‘continued decline of the recorded music market’ with the ‘phenomenal revenues’ earned in the live sector. However, live income for PRS for Music was £23m, which is lower than the mechanical income derived from its MCPS alliance.

In addition, the summarising table in the report equates ‘recorded music’ solely with business-to-consumer income. The total of £1,112m is made up of ‘payments for physical music products, downloads-to-own and subscriptions’. This obfuscates the fact that there is plenty of recorded music income that is derived business-to-business. A substantial amount of the £448m that is attributed here to PRS for Music comes from the use of recordings. Away from the main breakdown of figures, the report itself allocates £101.6m of PRS income to ‘recorded music’. Sound recordings also contribute to its other income streams: broadcast & online, public performance, and international. It should be conceded that live music also contributes to each of these remaining areas of business-to-business income, albeit that it is recorded music that dominates when it comes to the income generated by radio, television, the internet and the use of music in public premises.

Moreover, while PRS for Music owns the performance right in its members’ works, MCPS does not have complete jurisdiction over the mechanical right. Its members can opt to self-licence the use of recorded music for films, adverts and some television programmes. As such, recorded music makes up a significant proportion of the music publishers’ direct income. Out of the £210m that is allocated to them in this report, £48m comes from these sync rights. Ultimately, the mechanical income for songwriters and publishers is holding up better than much industry reporting would lead us to believe.

There is, in addition, plenty of business-to-business income that makes its way to record companies and recording artists. Recorded music is responsible for all of the £80m income that is attributed to PPL and the £220m accorded to ‘record label direct revenues’. The latter figure, in fact, includes some PPL revenue, as it is made up of ‘music synchronisation, “360 degree” artist deals, concerts, music-related TV production, broadcasting and public performance’.

Because of the way the figures are reported, it is impossible to make an accurate tally for the income derived from sound recordings. Recorded music is, however, worth considerably more than the £1,112m highlighted in Adding up the Music Industry. For the vast majority of professional songwriters and musicians it provides more money than live music does. While the same is obviously true for record companies, it applies to music publishers as well.

There are good reasons why some academics have seized upon PRS’s analysis: they like to emphasise the freedoms of the live music scene in comparison with the tyranny of being signed to a record company. PRS also has a performance emphasis. It is, after all, the ‘performing right’ that is enshrined in the society’s initials. Unlike the Musicians’ Union, however, it does not campaign to keep music live: it collects money from the performance of records as much as it does from performance in person. The reasons why PRS have chosen to under-represent recorded music in their reports are therefore obscure. Finally, I should concede that I have my own biases. Although I do think I’ve provided a fairer way of reading the statistics, I also know that I’m a record man. My main pleasures in popular music have always come from recordings. 

Community Chest

When campaigners have wished to curtail the duration of copyright they have called upon the public. This practice is as old as copyright law itself.

The Statute of Anne (1710) is titled ‘An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Such Copies, during the Times therein mentioned’. The time being referred to is the term of copyright, which was set at a period of 14 years and could be extended by a further 14 years if the author was still living at the end of the initial period.

The Act also indicated how it would encourage learning. Copyright would inspire writers. It would motivate ‘learned men to compose and write useful books’ because they would now have some legal assurance of getting paid. In addition, the restricted duration of copyright would boost reading, as it would lead to cheaper books. Books in copyright would be monopolistically owned: an author would have the ‘sole right’ to their books, while any bookseller to whom they assigned that right would have ‘the sole liberty of printing and reprinting such book’. Although monopolies drove up prices, the public domain would bring them down. Expiry of the term of copyright would give any bookseller the liberty to reprint the work; the ensuing competition would result in lower costs.

The price of books had been a genuine concern. Prior to the Statute of Anne, the old licensing laws had given members of the Stationers’ Company monopoly rights to book titles. When they were due for renewal in 1693, a group of peers protested about the law, stating that it ‘subjects all Learning and true Information to the arbitrary Will and Pleasure of a mercenary, and perhaps ignorant, Licenser; destroys the Properties of Authors in their Copies; and sets up many Monopolies’. The Statute of Anne aimed to curb the practice of these mercenaries, not only via limited copyright duration, but also via a clause that allowed any ‘person or persons’ to raise a complaint to the Lord Archbishop of Canterbury about any book whose price they deemed to be ‘too high and unreasonable’.

Copyright law therefore aims to achieve a balance. It has raised monopolies in order to protect the interests of authors, and it limits them in order to make their works affordable. This idea was carried through from British law into the American Constitution, which talks of promoting ‘the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries’. It can also be seen in the Universal Declaration of Human Rights, which counters ‘everyone has the right freely to participate in the cultural life of the community’ with ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which they are the author’. In 1841 Lord Macaulay made what is perhaps the most famous case for this balance. In a speech to the British Parliament he argued that:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. .... The effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. ... It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

Mark Rose believes this statement is a ‘standard point of reference in discussions of the history of copyright’. It should be noted, however, that Macaulay was campaigning against an extension to copyright. It is therefore natural that the people who refer to him most are those who wish to free copyright from the extensive grip of monopolies. This includes Andrew Gowers, who quoted the speech in his 2006 Review of Intellectual Property. This report rejected an extension to sound recording copyright in Britain. Gowers argued that a properly functioning copyright system is one where ‘incentive to innovate is balanced against the ability of follow-on innovators to access knowledge’.

I think Gowers was right. If copyright is supposed to both inspire artists to create and enable audiences to access their work, extending the duration of sound recording copyright from 50 to 70 years would be of little account to either cause. I’m not sure that Macaulay was the best person to turn to, however. There is a lacuna in copyright debates. Campaigners against extension have made excellent analyses of the figure of the author, looking at the ways that corporations have hidden behind artists’ rights in order to achieve their own ends. In contrast, the effects of copyright upon the public have received less attention. Although campaigning centres upon the idea of ‘access to knowledge’, there is little investigation of how access works in different artistic fields.

Macaulay was arguing against claims for copyright extension that were being made in respect of books. Books work differently to music. Monopolies do make them expensive. Despite the textual expansion of the internet and a continuing tradition of book readings, the most common way of accessing a book is to pay for it: the majority of the trade takes place between businesses and consumers. As a result, a book that is in copyright will almost always be more costly than one that is in the public domain. In fact, in arguing that the public domain leads to cheaper prices, Gowers used the book trade as his example, even though this was in a section of the Review of Intellectual Property that was debating the merits of sound recording copyright extension. 

It should be noted, however, that there is a lot of ‘free’ music that is within copyright. Or, to put it another way, the public enjoys a lot of music without having to make a direct monetary exchange. We get to hear music for nothing on the radio; on television; in the cinema; in shopping malls; in bars, pubs and clubs; and on much of the internet, whether we are pirating or not. Many monetary transactions relating to music take place business-to-business, rather than business-to-consumer. According to PRS for Music figures from 2011 these business transactions make up nearly a third of the market for music in the UK. The value of B2B income for the music industries in that year was £1,057m, while B2C income was £2,736m (split £1,112m for recorded music and £1,624m for live music).

We do, of course, end up paying for much of this B2B music in other ways. If music is being played for free by a public broadcaster, its costs form part of the licensing fee. If it is free because it is advertising-funded, we bear the cost of that advertising in the goods we are encouraged to buy. Similarly, if music is being played for free in public premises, we pay for it indirectly via other goods that the retailers are selling us. There is also a human cost. We are denied agency: businesses choose our music for us, and they choose songs that best underpin their own needs. Moreover, we need to be aware that on many occasions when we hear music without paying for it, it is us who are being sold to advertisers.

Music’s monetary waters are muddied further when we begin to think about monopolies. There are situations when monopolies actually help to keep costs down. Most of the music that we hear over airwaves and through public address systems is paid for via blanket licences. The users of music don’t licence it directly from publishers and record companies, they instead use collection societies. In most countries there is just one collection society for each of the principal streams of income. There will be a society that collects public performance income on behalf of songwriters and publishers; a society that collects public performance income on behalf of record companies and recording artists; and a society that collects ‘mechanical’ income - money from record sales and other uses of recordings - on behalf of songwriters and publishers (the record companies act for themselves when it comes to collecting their own mechanical income and the royalties from recording sales that are due to their artists). In Britain these societies are PRS for Music, PPL and MCPS, respectively. They operate as monopolies.

One effect of blanket licensing is that all music costs the same. The BBC pays as much to play a track by the Beatles as it does to play a track by Bogshed (this is one of the reasons why it tends to use such well known music in its own promotional films). Some of the collection societies are more monopolistic than others, however. The writer members of PRS assign the performing right in their works to the society. PRS therefore ‘owns’ this right and can offer its whole repertoire of works to the broadcasters and premises it has licensing deals with. In contrast, MCPS merely administers the mechanical right. Its relationship with songwriters is instead enshrined in its Membership Agreement, which covers a number of standard and blanket licences. While PRS controls all aspects of the performing right on behalf of its members, there are some areas where MCPS members can opt out of blanket licences and instead negotiate directly with users. This includes music for films, adverts and some commercial TV broadcasters. One reason why members choose to operate in these areas is because they can negotiate higher fees. Here monopoly breaks down and the Beatles will cost more than Bogshed. PPL’s monopoly is also limited. It collects money from public premises and from broadcasters but generates little online income. The majority of this licensing is instead carried out directly by the owners of the sound recordings. PPL argue that this ‘reflects the prevailing view of record companies that downloading and on-demand streaming is analogous to the distribution of sound recordings, a traditional record company function’. Moreover, if you want to use a sound recording in an advert or a film you will have to negotiate directly with its owners. If you want to use a major star or a big hit this will cost you dearly.

As the income from recorded music declines, the money that can be made from licensing becomes more important. Consequently, some performers are seeking greater control of their rights. Artists such as Prince have successfully gained ownership of their sound recording copyrights. While most record companies use PPL to licence their catalogues of recordings to radio and TV at standard rates, and they will have their own blanket licences in place with streaming services, artist owners are more likely to operate in a restrictive manner. The performers whose music is not available on internet platforms such as YouTube or Spotify generally fall into two categories. There are artists who own their copyrights and there are artists who have the status to negotiate contractual clauses about licensing rights with their record companies. Although in each case they are standing up to monopolies, this does not result in music that is cheaper or more readily available.

In addition, there are publishers who are choosing not to be members of MCPS. They believe there is more money to be made if they avoid the collection society’s blanket licences. Recently the BBC announced that it would no longer be able to play music by Neil Young, Bonnie Raitt, Journey and the Doors. It was introducing a new iPlayer radio app, which would provide users with the opportunity to listen to BBC radio offline. Wixen music, the publisher for these artists, was not a member of MCPS and therefore the BBC was not covered in respect of this new mechanical distribution of their music. The publisher had decided to forego membership because they felt they could more profitably negotiate television rights for their artists’ songs independently. The situation was eventually resolved via an one-off agreement between Wixen, the BBC and MCPS. The case does, however, highlight the fact that it is not always monopolies who make music scarce or dear. On the contrary, in modern times this fate is more likely to befall music that has escaped the collection societies’ monopolistic demands.