Long before Google, it was common for publishing companies to play a game with composers to whom royalties were owed: they would simply not mail out their royalty checks unless the composer complained. They figured that if they withheld 200 composers’ checks, twenty would never complain — and, years later, they could quietly pocket the money. Publishers weren’t usually brazen enough to try this with major composers or rich stars — the type of people likely to have their own accountants on retainer. But for middle-level composers/authors, it was a common scam. One such composer was Frantz Casseus, who had put out several records on Folkways, and had a tune covered by Harry Belafonte — but he wasn’t rich, not by a long shot. He managed to get by, taking in students like me, building his own guitars, making his own furniture, and decorating his tiny apartment through what he called “mungo hunting” — finding cool stuff at flea markets or on the street. In the mid-’80s, Frantz suffered a series of strokes that left him unable to play guitar. His marginal financial situation quickly became desperate. A friend of Frantz’s who had volunteered to help organize his finances discovered that income was being withheld, and confronted the publishing company. They responded predictably: “Oh, we just didn’t know where to send the checks.” (Frantz had lived at the same address and with the same published phone number for over forty years.)
Several months later a check arrived for $16,000. By this time, Frantz was living in a nursing home and had been forced onto Medicaid — so everything went straight from his bank account to the government. Still, it wasn’t the financial loss that bothered Frantz most. I’ll never forget what he said as he stood there, finally holding the delayed check in his one good hand: “If I had known, I would have composed more. I felt my work to be without value.”
Frantz died less than a year later, without ever returning to composition, leaving behind a body of work beloved by Haitians and classical guitar fans to this day. I still play his pieces sometimes — and have many happy memories — but I remain haunted by those words, and the questions they raise about his life, and ours.
There’s a ghost in the room when government roundtables of distinguished “stakeholders” discuss the size of the incentives our Founding Fathers provided when creating copyright protections. Big Tech’s bean counters can supply mountains of data on the dangers (to them) of providing too great an incentive. But who will speak for the work left uncreated if we set the incentives too low? How can an accountant measure the loss of a work’s absence? Who can place a value on the ineffable, immeasurable might-have-been? These days, as the tech industry attack on artists’ rights threatens to make Frantz’s loss into the new normal, I think of him often, of what might have been, and what might never be.
If we judge the work Frantz might have composed by the work he did, then the loss — to Frantz, of the dignity of work; to us, of the beauty his work might have created — is profound. I try to weigh the profundity of that loss against the banality of the publishing company’s decision to not pay him — the entirely logical corporate decision to use the existing legal landscape to maximize profits. The company risked no liability for withholding the checks, and stood much to gain. The math is simple, and those doing it rarely see their victims.
And although the publishing scam described above remains common, it was never the norm. Other forms of theft occur even less frequently: for example, using copyrighted material in films or television commercials without a proper license is relatively rare. Why? The answer is certainly not because film/commercial producers are more morally correct than publishers or record company execs. Instead, it’s because composers/artists have the legal tools to sue violators’ pants off.
Ultimately, Frantz’s human tragedy and our cultural loss come down to the lack — or presence — of certain legal tools. Bean counters will always count beans; the ethics of the system reside in the structure that predetermines the math: a structure of laws that limit the liability of corporations for not locating a composer/author; or place the burden of notification on the author; or limit our access to information; and so on. Little details, arcane language, in print so small you wouldn’t notice.
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In the end, Frantz got his check: and for all its abuse by corrupt institutions and individuals, the system functioned in some way: most working composers, artists, and musicians would eventually get paid. Many were cheated, but there was a common understanding that not paying the composer or artist was in fact cheating.
This is no longer true. Google’s corporate lobbyists are aggressively trying to create a new legal landscape in which their drive to profit without paying creators will be unobstructed, our tools to win fairness obliterated. They want to put virtually all uses of our work in the same legally vulnerable position that enabled Frantz’s publishers to rip him and so many others off.
And they’ve become rich and powerful enough to get away with it.
Sometimes the changes are dramatic, like the creation of “safe harbors” enabling advertising brokers like Google to reap huge secondary profits from brokering ads amid black market theft of our work. Often they’re not: an “orphan works” proposal designed to make nonpayment just profitable enough, to make artist recourse just expensive enough to be beyond the reach of most, to make accountability just murky enough.
And this is why I’ve spent years writing letters to Congress about orphan works, parsing the boundaries of fair use, and helping to get other artists to do the same, when I should be practicing guitar: because when we produce something that people would like to hear, I want my work, and Frantz’s work, and the work of all other cultural creators, to be valued. And when our work is producing profit, I want its creators to have their fair share.
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It all comes down to value: will we as a society choose to value cultural creativity, or not? When Frantz felt deprived of value those years when the checks didn’t arrive, it wasn’t because he was in it for the money. Frantz gave up his chance to live a comfortable life to become an artist, because he was doing what he loved.
But for better and for worse, money is how value is measured in our society, it’s how we know others care about what we do, and yes, it’s how we survive. And until the day when that ceases to be true for all of society, musicians, recording artists, writers, photographers, filmmakers, graphic artists — we who create so-called content, we who do the work of art — are going to demand economic justice. We’re organizing to fight back, and we’re going to win. We may not have the deep lobbying pockets of the tech corporate giants, but we can do something they can’t: we can speak the truth, and the truth is a powerful slingshot.