COPYCENSE

Forget Michael Jackson: may we crown Jay-Z America’s King of Pop? His new album, Kingdom Come, was released Nov. 21 amidst the pressure of a well-publicized comeback and a global music sales environment that has been characterized charitably as flagging. No worries: the rapper (born Shawn Carter) sold nearly 700,000 copies the first week, riding the sales figure to the top of Billboard magazine’s album charts.

Jay-Z operates in rare air for today’s musicians. His albums sell millions. His business assets include a clothing label and a stake in a National Basketball Association club. His reported personal net worth creeps into nine figures. He has become a major product pitchman, courtesy of alliances with H-P and American brewery Anheuser Busch. And two years ago, he became CEO of Def Jam Recordings, arguably one of the most influential hip hop labels in the world.

Go Live, Young Man

But more than anything else, Jay-Z seems to understand the music business better than most of his so-called executive peers. It’s not just that he has a keen eye for promotion. (Featuring NASCAR progeny Dale Earnhardt Jr. and racing sensation Danica Patrick in the video for your newest single? Priceless.) About five years ago, Jay-Z understood that the key to remaining relevant – and rich – in the music business would center on being able to excel at performing live. Jay-Z’s sharpened sense of live performance eventually led to a historic performance last year, when he became the first hip hop artist to perform at London’s Royal Albert Hall.

Given today’s business and entertainment landscape, it is possible that musicians and music business executives may never get rich again. At least they won’t get rich using the business model that has dominated recent memory. For the last three decades, the industry has bet the house on having star acts sell millions of records (hoping to have those sales cover the losses of commercially unsuccessful acts); control the play lists of commercial radio to give those stars maximum exposure; and dominating the means and methods of music production and distribution.

And just as this model seemed to run its course in the eighties, a format change made things same as they ever were. The compact disc, a joint venture between Philips and Sony, ensured a fresh set of sales for new music, and another round of sales for music that had been released previously on now extinct formats such as eight-track tape, cassette tape, and vinyl recordings.

But in retrospect, it is reasonable to argue that the compact disc was the beginning of the end of the music industry as we’ve known it.

Music Goes Digital

But in retrospect, it is reasonable to argue that the compact disc was the beginning of the end of the music industry as we’ve known it. The CD became commercially available in 1982, and according to Wikipedia, its introduction “is often seen as the ‘Big Bang’ of the digital audio revolution.” Akai, a Japanese electronics company, introduced the first version of its digital sampler soon after the CD’s appearance. Synthesizers became better and more widely available: the harsh, primitive sounds that were heard during the eighties and nineties evolved into warmer, much more realistic tones that, when played correctly, became virtually indistinguishable from real instruments.

Digital sounds made it possible to turn a 49-key MIDI controller into a Bosendorfer grand piano. Digital technologies shrunk the costs of making music dramatically, allowing artists to collaborate from their bedrooms across time zones and countries, composing, arranging, mixing, mastering and burning entire albums on a laptop computer. And digital networks hastened the speed with which finished music could travel across the globe. Keep a single confidential? Virtually impossible. Have an unreleased record? There is no such thing.

How ironic it is that the technology the recording labels embraced to wring another dollar from its backdated music catalogs is the same technology that has led to the industry’s disruption and, in several ways, its pending extinction.

And here’s where performance again becomes relevant. The disruptive nature of digital technologies means that creativity is much less likely to be held hostage to income. Sure, many of the most talented people will continue to make a good, comfortable earning making music. But only a precious few will be able to live well exclusively from the music industry. Those who can earn well in the new music industry will be those who can perform well because a great live performance is the one thing digital media cannot easily replicate or replace. Even if digital media captures a great performance, ultimately the recorded event just makes people regret they didn’t witness the performance in person. The most recent example of this phenomenon was Prince’s 11-minute performance during the Super Bowl, in which the rock star set a new performance standard for what typically has been a pedestrian show. Even while he played songs that were two decades old, Prince demonstrated that true stardom is developed through live performance, not through a hot music video.

I recall Bonnie Raitt once saying the reason she makes albums is so she can have 12 new songs to perform when she goes out on the road. Jay-Z started understanding this five years ago. And like the former King of Pop, Michael Jackson, Jay-Z will stay on top as long as he can continue to put on an incomparable show. Hip hop at the Royal Albert Hall is a good way to further his live performance legend. But not every rapper has the access Jay-Z does. For many of those others, their performance road begins with the mix tape.

Mix Tapes As the New Concert

At its core, a mix tape is a compilation of songs woven into a cohesive whole by theme, rhythm, key (or a combination of the three). (While most “mix tapes” are created in digital format, and therefore never get recorded on a tape-like medium, the name has remained.) Once upon a time, I was a mix tape maven: I’ve sold ballad (or “slow jam”) mix tapes, rock mix tapes, hip hop mix tapes, house music mix tapes. But what I did pales in comparison to the level and complexity with which today’s DJs are producing mix tapes nowadays.

At their best, this new breed of mix tapes is more than just a musical compilation; it is a singular art form that fuses technology and performance in a way that can come eerily close to achieving the energy and spontaneity of a live show. While mix tapes are a genre-less art form, the leading mix tape creators seem to dwell in hip hop. Further, the hottest mix tapes are no longer audio-only productions; now they are multimedia presentations, with images and video accompanying unique remixes, new arrangements, or special performances.

Mix tapes often violate U.S. copyright law because their producers have not arranged to secure licenses to the distinct vocal or instrumental tracks that provides the tape’s raw material. Too often, licensing this material is unduly expensive and would be unavailable to nearly all the leading mix tape producers. Still, the mix tape trade has flourished because it provides virtually unmatched industrial credibility and marketing buzz for participating artists, while also providing a unique performance laboratory. In many ways, hip hop artists get as much positive attention from “blowing up” a verse on a mix tape as Jay-Z does from performing a sold-out show at Royal Albert Hall. The scale is different, but the buzz and respect is no less significant.

Traditionally, neither American record companies nor their trade representative, the Recording Industry Association of America, have sought to prosecute the producers and DJs that create mix tapes. For one, the positive buzz that comes from a successful mix tape is too valuable to ignore. Second, prosecuting the mix tape producers would involve confronting their own artists: virtually every mix tape features at least one famous rapper either “hosting” that mix or verbally acknowledging the mix tape DJ. According to an April 2006 article in The New York Times, several notable hip hop artists – including Jay-Z, Nas, Eminem, and 50 Cent – have “hosted” a mix tape.

Separately, a good mix tape gives its listener the jolt of a live, often unscripted performance. In an age where creativity can be tightly scripted into sterility, the mix tape provides audiences often memorable doses of the live performance aesthetic. More than anything, this is what makes mix tapes so appealing – to audiences and artists.

Apparently, though, the recording industry now considers mix tapes as serious a threat to its existence as file sharing. On Jan. 16, the Fulton County (Ga.) Sheriff’s Department, acting on a warrant developed from information provided by RIAA’s anti-piracy unit, arrested DJ Drama for illegally selling distributing mix tapes. (See sidebar for more information.) It seems the informal legal truce over mix tapes is over.

It is reasonable to ask why the American music industry would stamp out a practice that, on the surface, seems so mutually beneficial. But then again, why does the American music industry do half the things it does? One would have thought that when the .mp3 format became widely available, the industry would have embraced it – if not controlled the specification outright – and changed its business model to creating premium DVD content that customers want to buy. Instead, it has spent years and millions on a litigation strategy that has had little preemptive effect, and recently has decided to consider distributed music files in the (copy protection-free) .mp3 format anyway. It took the industry more than a decade to come to that conclusion.

Additionally, one would have thought that the music industry would have embraced BitTorrent, (or similar peer-to-peer file distribution protocols) as a way to distribute music. But instead, they pursued a familiar set of business practices: ignorance, then arrogance, then economic concern, then lawsuits, then an attempt at partnership and technological implementation.

And these are the actions of savvy businesspeople?

What music executives seem not to comprehend is their most recent business model always was a poor one; it’s just that digital age technology exploited how bad it has been. Joe and Jane Citizen don’t need the music business anymore because they can get what they want, how they want it, when they want it, at the price they want it – often free – without having to buy an entire album to hear one single; without having to listen to the same songs played in heavy rotation; without having to endure premieres, previews, advertisements, or any of the other things that the music industry felt it had to do in order to create one superstar that would cover the losses of dozens of other failed business decisions.

Exit Stage Left

People want to create culture, share culture, be culture. The average Joe or Jane never will be able to compete with Jay-Z. But neither Joe nor Jane want to compete with Jay-Z; they’re content to create, share, and perform their culture and creativity, and keep their lives moving. (This is why YouTube and Flickr are successful.) And every so often, someone from the common folk will perform so well that they get to experience the same thing Jay-Z experiences when he steps on a stage at Royal Albert Hall. (This is why mix tapes and the television show “American Idol” are so successful.) Joe and Jane still recognize the wonder of a Jay-Z performance, and they will continue to pay artists like Jay-Z for his talent and skill in that area. But instead of all the intermediaries – including record labels – Joe and Jane now will pay the artist directly, and a successful performing artist will be able to live well from this direct payment arrangement.

But that leaves entire sectors of the music industry with nothing left to do, ready for extinction. You say you’re in the music industry, and you’re not involved in facilitating performance, creation, or sharing among the masses? Hey, Bud, it’s time to get a real job.

CopyCense™: Creativity & Code.™ A venture of Seso Group LLC.