Arts, Inc: The Corporate Control of Culture

An Interview with Bill Ivey

Bill Ivey is the former chair of the U.S. National Endowment for the Arts, a federal cultural agency. He is the author of Arts, Inc: How Greed and Neglect Have Destroyed Our Cultural Rights (2008). Ivey serves as director of the Curb Center for Art, Enterprise and Public Policy at Vanderbilt University, an arts policy research center with offices in Nashville, Tennessee, and Washington, D.C. He also directs the Center’s program for senior government, the Arts Industries Policy Forum.

Multinational Monitor: What do you mean by “expressive life,” and why is it important?

Bill Ivey: For me, expressive life really means culture. Unfortunately, culture as a term has been undermined by multiple meanings, in English at least. With a small letter, it means the sum of all human behavior — that’s the way anthropologists talk about it. And if you capitalize the word and move it to the other end of the spectrum, it means nothing more than the symphony orchestra and the fine arts museum.

Expressive life, to me, is a more useful concept; it suggests a combination of heritage — which is what we have as human beings to ground us and give us a sense of place and identity and continuity with the past — and individual voice, the part of everyday life that has to do with letting the world know who we are and how we think, with having a sense of autonomy and individual accomplishment. If our expressive life is in balance, with access to both heritage and individual voice, then we have a point of access to a high quality of life in our democracy.

MM: You argue in Arts, Inc. that corporations and the marketplace are a threat to expressive life. Why is that so?

Ivey: Corporations need to protect ideas, words and musical notes as assets, a fact that has inclined them to increasingly lock up art in their control — or at least create a very high-cost permission culture, in which citizens either have to pay a fee to look at or hear something, or pay a kind of toll to rent a movie or a sound recording for a short period of time. The footprint of control over creative assets has steadily grown over the last three or four decades in response to the demand by corporations for new revenue streams and greater earnings from music, movies, images and broadcasts. Corporations have been aided by the willingness of government regulators to cave in to corporate demands, allowing the duration of copyright and the breadth of intellectual property protection to continually expand.

At the same time as corporations have secured ever-increasing value in these intangible assets, the pattern of mergers and acquisitions within the cultural industries has positioned critical management decisions up the line. Key decisions are now far removed from the kind of one-on-one contact between executives and historical material or with artists that would produce healthy outcomes.

So our modern arts system exhibits greater protection, greater control and more remote decision making, all tailored to the demands of public corporations for positive quarterly earnings estimates and positive stock performance, rather than to the public’s interest in the health of art and artistry.

MM: You argue that expanded copyright protection is harming cultural production and expressive life. Why?

Ivey: I think one of the greatest con jobs that the cultural industries have been able to pull on artists is to convince songwriters, actors or screenwriters that they should testify in Congress on behalf of expanded copyright protection. Corporate interests use the argument that somehow restrictive copyright enhances the ability of the artist to create, when in many cases nothing could be farther from the truth. For example, any artist who uses the work of others to create something new is likely to have their work diminished and damaged by our overblown copyright regime.

To me, copyright has become too long and too wide. It’s not an issue that the American people get up and worry about every day. But a heavy copyright system subtly shapes the backdrop of the way we consume and engage culture.

For example, back in the fall of 2004, a federal court decided that even a tiny amount of musical material couldn’t be used in a new work without securing a license from the original copyright owner. The specifics of the case involved rap and hip-hop recordings sampling elements of earlier performances. But the implications are very broad, affecting any artist involved in what would be called collage art-making, whether clipping images out of magazines to make a new work of art, or assembling old film clips into a new documentary. So today there’s no minimal use; every little snippet of someone else’s intellectual property has to be licensed. We’ve got a very locked-up system when it comes to creating new art out of old.

By the same token, plain Fair Use has been diminished significantly from the 1950s to the present. Fair Use refers to the right that anyone has to reproduce the words or images or music created by others without permission. Fair Use covers educational purposes, quotation in criticism, or adapted forms like parody. These things are considered to have enough merit, and create so little harm, that users aren’t required to get permission from the copyright owner. There was a time when it was considered Fair Use to reproduce a page or two of text; now if you quote a few lines from a song or a few lines from a book, you end up licensing your quotation.

Today, copyright has been disconnected from the interests of artists and connected to the interests of corporations. For corporations, a copyright is an asset, like a building or piece of machinery, that needs to be made as permanent as possible to serve shareholders by maintaining or increasing the value of a company.

For an artist, copyright has to be more flexible. An artist’s greatest fear is not the loss of an asset, it is obscurity — the loss of identity; no one knows who you are or what you do. That’s why it’s not uncommon for artists early in their career to give away work, because they need identity, visibility and reputation more than they need to protect their creative assets. By the same token, senior artists who are interested in legacy and the impact of their career in the long haul may also want to give away their work, or make it available at a very discounted price, in order to maintain their reputation late in their career.

Some of these effects are subtle, but I think ultimately there will be a confrontation in which the public interest will assert itself in relationship to this expanding copyright regime. But it hasn’t happened yet.

MM: Can you explain more what you mean by collage and compilation art, and how copyright interferes with it?

Ivey: When you talk about collage artists, it’s not just people who are clipping things out of magazines to make something that looks like a modern painting — a work of visual art. It’s also people who are assembling compilation CDs or DVDs of historical material. Documentary film is also a form of collage. A collage artist is also anybody who’s producing contemporary hip-hop or any kind of mash-up performance where you take musical elements from the past and put them together to make something new.

Years ago, I was working on a historical re-issue project for New World Records. I was trying hard to get a specific performance by the country star Loretta Lynn into that compilation, because it made an important historical point in relation to the theme of modern sounds in country music. I was unable to license that clip simply because an executive with the record label wanted to hold it back so that the exploitation of that performance could be tied to Loretta Lynn’s book Coal Miner’s Daughter, and the movie that would follow that book. From a corporate perspective, he made the right decision. He was holding back that performance — that asset — in order to maximize future profits by retaining a type of exclusivity for the company. But he was also undermining the historical record by holding back the most relevant performance of her career from a compilation that was trying to present the full history of country music. And while it doesn’t necessarily show, I think the American people encounter this kind of commercially motivated editing of the historical past all the time.

MM: Whatever the difficulties, isn’t copyright, at the end of the day, how creators are compensated?

Ivey: I’m not arguing against copyright. Copyright is absolutely essential, because without it, art ends up being a free public good. A painting, anyone can look at it; a song, anyone can hear it. So obviously society needs some special legal attachments to make sure artists can earn money from their creativity, and their rights to their creative work are protected.

My only argument is that copyright has become a kind of bully in the cultural scene, and that in addition to protecting the rights of artists, it’s been used by corporations to impose a very expensive cultural consumption model on artists and consumers. That’s what I argue against.

If you go back to the U.S. Constitution, the language that enables copyright is language that authorizes Congress to “encourage progress.” It doesn’t say Congress has the right to protect ideas as though they were property or to protect words and images and music as though they were property. It says Congress has a right to secure, for a limited time, the rights of authors and inventors, in order to promote progress in science and what the Constitution calls “useful arts.”

What’s happened during the late 20th century, in an atmosphere of deregulation and an expanding intellectual property footprint, is that that notion of promoting progress has been pushed aside. What we’ve ended up with is a kind of locked-down or locked-up creative system that doesn’t serve artists and ultimately doesn’t serve the public.

So it’s really time to have a new conversation, not about eliminating copyright, but about finding a new balance point around issues like Fair Use and the duration of copyright so that public purposes are better served.

MM: How would you like to see Fair Use rules improved?

Ivey: The problem today is that Fair Use is not really defined and it’s a set of guidelines rather than a set of rules. And so you’re never certain when you use something — when you take a little bit of a song, or if a teacher creates a DVD of movie clips so her students can learn about directing techniques at home — whether you’re operating within a Fair Use umbrella or whether you’re outside it.

The only way you can prove your particular use is Fair Use is in court. The fact that Fair Use is only a courtroom defense tends to choke Fair Use. Because if you’re a sixth grade public school teacher or if you’re a university professor, or even if you’re an artist trying to use a quotation or film clip in a new work, you just don’t know for certain what or what isn’t Fair Use, and the tendency is to always err on the side of caution.

Fair Use could be improved if it were made into a set of rules: If you follow these specific guidelines, then you know with certainty that you’re engaged in Fair Use. But, for 30 years, the definition of Fair Use has been shrinking, even as it has become clear that a broader Fair Use regime would be in the public interest.

MM: You also suggest reviewing whether the full term of copyright should apply in all cases. How would you go about doing that?

Ivey: The last copyright extension — the Sonny Bono Act — was in the 1990s, extending copyright to the life of the artist plus 70 years. And that’s toothpaste that’s not going to go back in the tube. We’re not going to shorten the term of copyright.

But perhaps we can improve things at the other end. When no one knows who owns the copyright to a work, it should immediately go into the public domain. We should look at older material that has limited commercial value, and develop a set of standardized prices so that, for example, a documentarian who is dealing with old recordings, creating new anthologies, would know in advance what it would cost to license old clips or sound recordings.

We have standardized prices for the use of compositions in sound recordings. If you’re willing to pay about 11 cents per cut on a CD, any singer can use the songs by the greatest composers in the history of music. That compulsory license has invigorated our recording industry because people don’t have to go ask permission anytime they want to cut an old Lennon-McCartney song or a legendary Cole Porter song. We need to develop similar compulsory licenses providing standard prices for the use of old film clips, old news reel footage and older musical compositions and recordings, so society can have reasonable access to important historical material that doesn’t have much contemporary value.  

So while I don’t think we can change the duration of copyright, we can shift more art from the past into the public domain or make more items available through an affordable, predictable pricing system.

MM: How long would you wait after a work was published before installing a compulsory licensing system?

Ivey: I think you could do a multi-tiered system. You could look at film clips and say if the work was created within the last 25 years, every use is negotiated and you have to go ask permission and get a price. If the clip or recording is between 25 and 50 years old, it’s price x per foot or y per cut. If it’s older than 50 years, the compulsory license carries an even lower price.

The copyright-dependent industries would hate such a system because they would say, “Casablanca is in that category, and that’s a very valuable and important film.” But the reverse argument is: Casablanca’s historical importance is all the more reason why it should be readily available in multiple uses. It has tipped over from being a mere asset to being an important part of the nation’s cultural heritage.

I think softening copyright would require a tough fight, a battle that will succeed only if  preceded by a national conversation about the public interest in relation to our cultural heritage and our cultural commons. But I think a recalibration of copyright in relation to public purposes ultimately must happen or we’re going to see our cultural heritage drop away as though it never existed. If we can only access history through an oppressive corporate rental model, it will be as though cultural heritage never existed; we simply can’t allow that to happen.

MM: You also talk about registration of copyright. What does that mean and how would registration rules be helpful?

Ivey: Historically, copyright was modeled on the patent system. If you registered a creative work, you could have copyright for a limited term; upon expiration, you could fill out a form and renew for another term. But registration pretty much went away with the Copyright Act of 1976. It’s now assumed that you own the copyright of a creative work as soon as you put pen to paper, or sing a song into a digital recorder, or shoot something on film. No registration is required.

That means two things. One is that because the term of copyright is long, and no re-registration is required, there are millions of creative works that have almost no commercial value but remain locked up in copyright. It also means that the system actually loses track of older works and the people related to them. If you’re going to try to track down an obscure song from the 1950s, absent the requirement of periodic copyright renewal and registration, you’re going to have a hell of a time finding out who owns or controls that composition. Even with the best intentions, you’re not going to be able to negotiate the right to use it because you can’t find the original creator or original publisher, who might be long out of business or absorbed by some other firm.

A modestly priced copyright renewal system would address these problems. If after the initial 28 years, or the initial 50 years, someone has to go in and pay $4 or $5 or $20 in order to renew the copyright for another term, it would indicate that at least someone felt there was enough value in that particular artwork to maintain control over it for another period of time. If someone doesn’t care, if there’s not an entity out there that’s willing to re-register, at a very modest fee, ownership in a piece of intellectual property, that item should enter the public domain.

MM: Besides copyright, you raise concerns about corporate gatekeepers in the cultural marketplace. What do you mean by the idea of gatekeepers?

Ivey: Culture appears to exist everywhere and seems to be readily available, but it really comes to consumers through a complicated system. And that system contains toll booths and exhibits places where the gates are narrow and places where the gates are really wide. A healthy cultural system is one in which artists can find their way in and one in which their work can be widely disseminated. It’s also a system in which consumers have broad access to lots of work by lots of different kinds of artists. What we find today, in a market-dominated cultural system, is that there are corporate gatekeepers who not only affect how much art gets through to consumers, but also shape the very character of the creative process.

Clear Channel Broadcasting — a company that’s struggling a bit now, but still owns the most powerful and important radio stations in the most important radio markets in the United States — has an approach to programming in which each station targets a specific segment of the population. A country radio station may program music to appeal to women aged 36-55. Because Clear Channel controls so many country stations, the demographic focus of that station flows all the way back into the creative process. I have personally heard songwriters say to one another, “That’s a great song, but it’s not a Clear Channel song.” What they’re saying is, that while a composition might be brilliant, it wouldn’t work for the specific demographic of middle-aged women that country stations in the Clear Channel system are targeting. That is a corporate gate-keeping practice that affects the very character of creativity.

When Clear Channel decides what to play on the radio, using that kind of strategy, when Wal-Mart will only pick CDs or DVDs of “sure things” — because they have to buy in quantities of 50,000 or 100,000 or 150,000 units — those decisions distort the entire system.

We’ve never, in the U.S., had a national conversation about how the public interest intersects with the forces of the marketplace around culture. Culture has a special character; it’s not a product like tires or laundry soap. Culture has to do with who we are; it’s about identity; it’s about heritage; it’s about our individual creativity and our ability to gain access to the creative system for our own works; and it’s about education and about what young people know about our history as a creative people.

Because culture has special importance, laws and regulations shaping our arts system should come out of the same kind of conversation between government and market forces that we’ve had around, say, the natural environment. We understand today that while a corporation might own a forest, they can’t just clear-cut it, because there’s a public interest in the vitality of that asset even though it’s owned by a private enterprise. We have to have that same kind of pushback around culture, to make sure that the system of gatekeepers’ toll booths serves not just the marketplace, but some broad public purposes.

MM: In Arts, Inc, you note that the Office of the U.S. Trade Representative (USTR) is the lead U.S. cultural agency for global affairs, not the National Endowment for the Arts or any other agency. What is the USTR’s role?

Ivey: Right now, the primary actor in moving U.S. culture abroad would be the Office of the U.S. Trade Representative. The U.S. Trade Representative is trying to get more U.S. television broadcast abroad, present U.S. movies in more theaters around the world, and works to protect the U.S. from the piracy of sound recordings in China and other countries. In short, it has an exclusively commercial, market-driven agenda in relation to the movement of culture around the world.

At times, aggressive trade practices in media and music can actually run counter to State Department objectives and our very national interests.

Back when I was chairman of the National Endowment for the Arts, I ran into a situation in which the Department of State was generally supportive when countries passed laws and developed policies to protect their own cultural resources. South Africa, for example, might say it wants 20 percent or 30 percent of all music played on the radio to be South African in origin. The U.S. Trade Representative’s office, on the other hand, was fighting simultaneously against those kinds of regulations. In the case I encountered, the Trade Representative was the dominant actor, and was actually able to get a U.S. Embassy to exert pressure against a local content law. We had two branches of government on very different pages when it came to how our art moves around the world.  

Is this persistent pressure for more American cultural goods in more countries, regardless of the content of those goods, always in our national interest? When a program like “Baywatch,” four or five years ago, was the most popular program among non-elite villages in rural Morocco, that probably didn’t serve our national interests. While “Baywatch” is a program that has its charms, it doesn’t present an image of American society that is true, or that you would want on the front line as the first and maybe the last word about the character of American society when you’re speaking to non-elite populations in the Middle East.

To my knowledge, we’ve never had a conversation in which the Secretary of State brought together the U.S. Trade Representative and the 10 major purveyors of U.S. culture abroad, simply to talk about national objectives. If there’s a single pressing reason why I’m advocating on behalf of a U.S. Department of Cultural Affairs that would take on the work of the 20 or 30 agencies that now have some authority in making cultural policy, it’s really this international question. There’s a national security dimension to the character of the U.S. cultural message abroad. We should at the very least find a way to coordinate our international arts message, even while we honor the First Amendment rights of our arts industries.

MM: Aside from a role in global affairs, what would a Department of Cultural Affairs do, and why is it important to create one?

Ivey: There are persistent symptoms of failure in our approach to culture that have allowed the marketplace to pretty much run away with the regulations and the laws that determine how art gets through to consumers. There are many opportunities to generate unintended consequences when you have the Federal Communications Commission, the U.S. Trade Representative, the Department of State, the National Endowment for the Arts, the Commerce Department, the Department of Justice, the Federal Trade Commission, and many other agencies, each exercising a little bit of authority in cultural work.

A great example of unintended consequences that could be avoided if we had more centralized system of dealing with culture in government, is what happened with the Telecom Act of 1996. That law allowed the roll-up of radio stations into these big companies like Cumulus and Clear Channel. No one realized that consolidation would dramatically change the character of broadcasting, as these companies honed in on specific demographics and narrowed the content of different radio music formats.

More importantly, no one had any idea the Act would produce collateral damage in the record industry. That industry had depended on a relatively open, boutique-style radio environment in which it was possible to break a record by a brand-new artist by getting her performance played on a mom-and-pop station somewhere in rural Texas, building energy around new products by working the margins. When all the meaningful stations came to be owned by a single entity, that creative option was pushed off the table.

No one intended for the Telecom Act of 1996 to undermine the business model of the recording industry. But, as in the case of copyright or trade in arts products about the globe, I think if you had had a larger conversation with more parties in the room when that law was first being talked about, there could have been measures taken that would have prevented what was clearly an unintended consequence. The primary hope for a Department of Cultural Affairs would be to prevent unintended consequences that pull our arts system away from the public interest.

MM: You have put forward a Cultural Bill of Rights. What’s behind that idea?

Ivey: I advanced a Cultural Bill of Rights because I felt there is today no effective way to address the problems in the U.S. arts system piecemeal. We’ve tinkered with a little bit of copyright here, a little bit of policy around trade and cultural goods, a little bit of funding for nonprofits from the NEA, national museums and the Smithsonian. It seemed to me that we were getting nowhere in trying to argue the public interest in these narrow settings.

So my idea is to take a big step back, and not talk about individual policies or pieces of legislation, but to talk about citizen rights in relation to a vibrant cultural system that serves the public interest. And I came up with six rights. Probably the most prominent among them are the rights to heritage and the right to personally have a creative life. Many other things spring from those two ideas. But the notion of a bill of rights is my way of getting a serious conversation going.

I think it’s really time to say that citizens have a right to a vibrant cultural life. If Sony/BMG or the Motion Picture Association of America thinks we don’t have such rights, then it’s up to corporate apologists to step forward and tell us why. Tell Americans why the marketplace should rule. Tell us why the outcomes we’re getting now are the best outcomes we can get; the only ones we deserve. Tell us why the access to heritage we have right now is the only access we should have any right to expect. Tell us why the way artists navigate the system today is the very best that we can do. And if you can convince us, then we’ll back off.

If those who demand that the marketplace dominate culture are forced to stand up and say: “What you’ve got right now is as close as we can get to art-making and heritage as a pathway to a high quality life in a post-consumerist democracy,” their argument will not fly. But this confrontation — with them standing and saying our cultural rights don’t matter — that encounter begins the conversation. It doesn’t end it, it begins it. I think over the years we can come to a good outcome.