Law in the Internet Society

Supporting Artists in a World of Free Distribution of Music

-- By BradleyMullins - 17 Nov 2009

As free distribution of music over the internet becomes a practical, if not legal, reality, the current business models of record labels become increasingly challenged. While people continue to debate whether music should be free, there is no dispute that free distribution will have an inevitable impact on artists themselves. Lily Allen, British singer/songwriter/tabloid fixture, was recently thrust into the spotlight after she blogged her view that filesharing was a disaster for the development of new artists. While Allen’s opinion is not universal amongst artists, she does raise two important questions: Can labels continue to support artists without revenue from album sales? Or, more importantly, do new artists need labels at all?

The Future of Record Labels

The free distribution of music has undisputedly contributed to the deterioration of record labels, which have been largely dependent on album sales. Between 2007 and 2008, physical album sales fell by 60 million, and increased digital sales accounted for only 22 million of this loss. Artists have historically benefited less directly from album sales. The cautionary tale of TLC serves as a reminder that stellar album sales do not guarantee an artist personal wealth. Under the typical label contract, an artist receives only a 9-15% royalty on album sales. These rates seem especially low for digital sales, as they often include include deductions for packaging and distribution costs – an inclusion that is less justifiable for digital sales rather than physical sales, as the costs of packaging, manufacture, and distribution are effectively zero for digital sales.

Already labels are altering recording contracts to place greater emphasis on alternative revenue streams. The most well-known new model is the “360 contract”, under which labels take a percentage of profit, typically 30%, from all income streams available to the artist. Three sources of revenue are of particular interest: touring, merchandising and licensing.

Yet the move to 360 contracts may present a significant risk to artists. Signing a record deal always requires an artist to balance important considerations – an artist must decide whether the advances, financial backing, and marketing support are worth relinquishing control over his or her artistic product. Before 360 contracts, touring, merchandising and licensing were areas left largely in the artist’s control. Not only did this mean a greater share of profits, but also a greater ability to manage an artist’s own brand. Under a 360 contract, however, artists are required to forsake even this limited control, something that any emerging artist should be loath to do. And control over one’s career should be a concern of every artist, a concern heightened by the recently approved nuptials between Live Nation, which helped spur the move to 360 contracts through its deal with Madonna, and Ticketmaster, the dominant (if not monopolistic) seller of concert tickets. While such a deal may make sense for established artists with bargaining power, new artists, and fans of diverse music, should be frightened by a single entity that would largely control concert venues, tour promotion, merchandise production, ticket sales, and, through Live Nation’s parent Clear Channel, radio access. It is inevitable that record labels will be unable to maintain any real control over the distribution of music -- live music, however, has limited availability, and it certainly not ideal to have one entity control so much of it.

  • Madonna does the deal in order to partially annuitize her business, and get the money out upfront. She is, to say the least, a knowledgeable party. That the companies think they can get young people to make the same sorts of deal with them only shows: (1) their arrogance, even now; (2) their assumptions about the desperation and business stupidity of musicians; (3) why no remorse about killing off the companies would be justified.

Artists Without Record Labels

Even if labels manage to survive the digital revolution in some form, that does not mean that they are a necessary component of new artist development as Lily Allen contends. The story of Allen’s own success runs counter to her argument -- her initial popularity was due in large part to her posting of demos on her Myspace account. Perhaps more importantly, new business models continue to provide opportunities for new artists to develop without resorting to the support of record labels, and suffering the resultant relinquishment of control. One such label alternative is the venture capital model represented by Polyphonic. Polyphonic treats new artists like a start-up company, providing an initial investment, typically $300,000, in return for a share of profits. Unlike a record deal, however, artists maintain control over their careers, recording their own music and handling decisions about publicity and touring. Additionally, Polyphonic artists retain ownership of their copyrights and master recordings. Abandoning records labels for alternatives like Polyphonic or self-distribution does represent a risk for artists, particularly the risk associated with forsaking the marketing machine of the major labels or the brand recognition of the more niche labels. This is an area where free distribution of music may actually play an important role in supporting the income of artists that decide against label control. This is especially true as artists recognize the importance of the alternate revenue streams that labels are attempting to envelop through 360 contracts. In 2002, for the top 35 artists as a whole, touring income exceeded income from record sales by a ratio of 7.5 to 1. Licensing is also increasingly significant, as new opportunities, such as licensing music for use in video games, continue to emerge.

When it comes to potentially profitable activities like touring and licensing (as well as related sources of income such as merchandising and endorsement deals), free distribution of music has the potential to actually increase an artist’s income. An essential aspect of convincing people to buy a ticket to a show is making those people familiar with an artist’s music. Promoting the sharing of music amongst friends, or even amongst strangers with similar musical tastes, has the potential of exposing an artist to a much wider population than is possible with restricted distribution. The repeated listenings made possible by transmission of an actual copy of a song rather than just a one-time broadcast may make consumers more likely to develop the familiarity necessary to attend a concert. Additionally, if consumers no longer have to devote resources to the purchase of albums, they may be more likely to spend money to attend a concert.

The Embrace of Free Distribution

While yes, labels may be able to continue functioning as incubation chambers for new artists, artists need not, and likely should not, become contractual slaves to those labels that still exist. Instead, new artists should focus on maintaining as much control of their careers as possible, so as to be better able to utilize free distribution to support alternate revenue streams. With such increased control, artists will be able to make the music they want to make, without worrying about label approval. Free distribution will allow these artists to focus on other money-making ventures, such as touring and merchandising, knowing that their potential fan base is expanding as people who want to listen to their music do listen to their music.

  • This is "balanced" advice, appropriate for an interview quote in some venue where you hope to connect with clients in your role as hip post-sleaze music industry contracts specialist representing young talent. As actual long-term prediction, it seems irrelevant to me. The issue isn't whether these companies are going to "survive": they're part of large ownership businesses that are going to continue to evolve to control as much culture as they can. What's happening around them is the story, as the alternate forms of cultural distribution made possible by the Net, all of which are better for both artists and listeners than they are, erode the idea of their necessity completely. More people want to make and listen to music in other ways than they can possibly prevent. They can own and merchandise mass market music, in a global setting where more people will come to music through other mechanisms over the next generation than they can reach despite the immense throwing power of the American cultural empire. But they can't stop merchandised music from competing poorly against artisanal, affiliational, and other unmerchandised music in a world where all music is weightless and goes everywhere instantaneously.

* Professor Moglen, First of all, thank you for your comments. I tend to agree with what I think you are saying, and one point I was trying to make in my piece is that a greater number artists actually seem to have a better chance of at least some independent financial success than they have had before, largely as a result of free distribution of music. Sure, huge pop stars may not be able to make as much money overall, but I'm concerned less with that, and more with the abiliity of new artists to make a living without signing a record contract or even selling their records at all. I've revised various parts of my piece, and particularly the conclusion, in an attempt to better reflect this (I think that I had a lot of earlier phrasing that muddled my message).%

Bradley, a few thoughts on your paper. Let me start by saying that I'm entirely sympathetic to your argument, but I think there are few weak spots here which could be bolstered a bit.

First, when you say, "It is difficult claim that record sales are a particularly beneficial source of income to most recording artists" you are putting the cart before the horse in a big way. There's a circularity in saying that artists can thrive in a free distribution world because they aren't making money from recordings, when they aren't making money from recordings because of free distribution. All you've done is shown that the old business models aren't working, but you haven't taken the reader any farther in showing that the new model of free distribution will. I happen to agree with your implicit contention that it will, but pointing to the failure of one system isn't a substitute for demonstrating the efficacy of another.

Second, and this is perhaps more literary, I think you're leaning a bit too heavily on Allen/Swift/Knowles in the essay. It's useful as a framing device, but you're making some very serious arguments here that affect an awful lot of people, and of course what really matters, an awful lot of money. Who really cares what Taylor swift has to say about business models? You face too the problem that none of these "artists" are actually in control of the distribution of their own music. They really have no more to say about the choices musical artists face than I do--- that is to say, not a lot.

Third, the section about Knowles is a bit problematic. The future of free distribution of content isn't in the "rebellion" of a pop star typing away on her Twitter. The song was still taken down. Obviously the subtext of this is that the record company can't do anything anyway--- the flow of information can't be stopped--- but I think you've framed this in an ineffective way. You call this section "Letting the Artist Decide", but really Knowles did anything but. Her record company tried to make a choice, but the realities of digital distribution did it for them.

I think you have a lot here, but there are some gaps that make it hard for even your sympathizers to get on board. -- DanaDelger - 18 Nov 2009

Bradley, I also have a few thoughts. First, I think that when advocating for other models than the traditional artist/label model you may want to spend some space, if you can spare it, discussing the current model in more depth. You do spend some time on this in the Unreliability of Album Sales section, but I think it would be useful to discuss why artists are willing to give up control over so much of their careers and music in order to sign the record contract. In my view these reasons include the cash up front advance, access to a influential marketing vehicle, and perhaps even some cognitive dissonance ("even though most albums don't sell well, mine surely will"). There may also be a cultural aspect to it -- many of the music artists I know see a record deal as "making it." I think addressing some of these points would make your discussion of why Polyphonic and other models are attractive to artists more complete and convincing.

Second, I think the debt comment in the same section might be a bit misleading. Yes, some artists take out loans against future sales from their record label, but my understanding is that it is rare. As I understand the standard contracts I have seen, the advance and expenses (dinner will be provided while you record Mr. Elvis) can only be regained by the record label through the application of royalties, and thus are not debt the same way law school loans are debt: if the album doesn't sell well the artist keeps the advance and the record label loses the advance and expenses.

-- JustinColannino - 20 Nov 2009

Dana and Justin,

Thank you both for your comments. I'm currently going through a fairly major revision, and I hope the resultant product will address many of your points. Any additional discussion is of course more than welcome!

-- BradleyMullins - 22 Nov 2009


I just stumbled across this piece, and thought I would share it with you since it relates to this paper.

-- JustinColannino - 01 Dec 2009


I enjoyed your paper, and thought it was more effective than Dana seems to imply. I have some thoughts about the trend towards "Artists Without Record Labels.” As Justin brought up, one of the reasons why artists in the past were willing to give up so much control of their careers is because of the necessity/desire for cash up front. In the past, a major barrier to recording an album was the cost of studio time. Anyone who has spent any time recording in a studio knows how prohibitively expensive it can be. Record companies used their ability to pay for studio time as leverage over new artists, creating a barrier to entrance into the music industry. Independent recording and production of an album was simply not an option to a new artist. However, with the recent decrease in the cost of quality recording equipment and the widespread availability of studio-quality recording software such as Pro Tools and Cakewalk Sonar, anyone with a computer, an internet connection, a bittorrent program, and a few hundred dollars worth of gear can create a studio-quality album at home. One no longer needs to hire a sound engineer, as Pro Tools and Cakewalk can be quickly learned by anyone with basic computer skills.

Because the barriers to entrance into the music industry which were relied upon by record labels are breaking down, and the digital world allows anyone to easily digitally release their album all over the world, it seems likely that in the not-so-distant future record labels will only function as concert promoters and marketing assistants, and will eventually be completely phased out.

(I added a comment box. I hope that's okay.)

-- ScottMcKinney - 02 Dec 2009

Bradley, I read this paper sometime in November, but did not comment and I don't recall if this version is the same one I read. This paper was a lot of fun to read. About file sharing of music, this talk I attended by Adam Schlesinger who wrote the song "That Thing You Do" and he says that one doesn't even need to download a song anymore to listen to it, because when we have a craving to listen to a song, all we have to do is to head to Youtube, listen to it a few times, and then the craving is gone. He (don't remember if it was he himself or his lawyer who said it?) even thinks that no one really downloads songs from ITunes anymore, and those who do are those who got their parent's credit card. He says that, as you state here in your essay, money is made on licensing (Adam, or his lawyer, said that he was really happy that "That Thing You Do" was played 12 times in the movie, because he was paid each time the song was played) and on live performances (one of them said that the reason why people are willing to continue paying a lot for concert tickets is because they don't need to buy CDs anymore). So basically, it seems that your arguments on how artists can earn money where CD sales are low seems to be how Adam is thinking he can earn his living. I'm thinking that another way for musicians to earn money is by getting hired to perform in movies or on TV? I'm not sure to what extent this applies in the U.S. (crossing over from music to modeling to acting happens a lot where I'm from), but maybe to an extent in the U.S. as well like Jennifer Hudson and Beyonce in Dreamgirls?

-- AllanOng - 03 Dec 2009

Bradley, here's the talk I was referring to --

-- AllanOng - 03 Dec 2009

Bradley, Interesting thoughts. I tend to believe that record labels will be phased out of the digital environment as unnecessary intermediaries. Today, what appears to be taking their place is the role of online distributors of music such as itunes, amazon, etc. I am not sure for how long this sort of intermediary will continue to thrive, but I think that for the time being, artists are interested in distributing their music through these major channels. In this context, I found this site ( particularly interesting for "artists without labels" as it allows them to reach the aforementioned channels, and simultaneously retain all rights and profits to their work.

-- NikolaosVolanis - 05 Dec 2009

How much of that 38M net loss in album sales is due to a change in the way music can be purchased? Many now buy only a popular single on iTunes, whereas they would have shelled out the premium for the entire album before. I'm just curious. Even if singles sales account for a substantial portion of that lost revenue, I'm not sure it really affects your argument, which I think is well done.

-- BrendanMulligan - 06 Dec 2009

Brendan and Nikolaos - Single sales have certainly been increasing, with record single sales occuring in the UK this year. These single sales are typically taken into account for total album sales figures, with 10 singles representing 1 ablum, and still don't alone account for the overall decrease in album sales. Due to space limitations, however, I intentionally didn't address ways in which artists could continue to derive income from the sale of music. I completely agree with you though that direct online distribution, with record labels as intermediaries, can benefit artists.

-- BradleyMullins - 06 Dec 2009



Webs Webs

r21 - 07 Sep 2011 - 00:44:08 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM