9th June 2023
A former President of the United States has been indicted on federal charges, and I wondered if it even warranted a blogpost.
So I wrote about The Girl from Ipanema and about comics instead.
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In March 1963, a singer earned the American musicians’ syndicate rate for one session of work: $120.
She was no doubt one of hundreds of session singers that year, used for hundreds, if not thousands, of tracks, most of which are now pretty much forgotten. Just another singer doing a session, for just another track: nothing special.
But.
It was special. The singer was Astrud Gilberto, who has recently died, and the track was The Girl from Ipanema.
The song, we are told, is now the most recorded song after the Beatles’ Yesterday. Music, of course, can be a matter of taste, and The Girl from Ipanema suffers from perhaps being too well-known and over-used. Yet even you cannot deny that the song, in and of itself, has merit.
But what (for many) makes the 1963 track sublime, however, is the particular contribution of Astrud Gilberto.
And it was certainly the contribution of Astrud Gilberto that made the track commercially very successful.
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The story of the making of The Girl from Ipanema is notorious. It was not just that Astrud Gilberto was paid just a session singer’s fee. The others involved in the making of the track, we are told, actively made sure that she did not get any further returns from her contribution:
If this story is accurate then the only sensible response is that something is not right.
But what exactly is it that is not right?
For the hundreds of session singers and other musicians who contributed to tracks in 1963, the rate of $120 would be regarded as standard.
Why should the rule be different just because, in one case, an exceptional and commercially valuable product happened to have been created?
And if you want to make it that every session contract has a proviso where the singer or musician gets a valuable reward on the off-chance of unexpected commercial success, then it may well be that there would have been less work or the payment would be decreased, so as to balance off the risk.
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A similar position situation is with the writers and artists who created certain superheroes and other characters, on a work-for-hire basis. Some of these superheroes and other characters are now some of the most valuable products in the entertainment industry, worth billions of dollars.
But for every famous – and valuable – superhero there are hundreds, if not thousands, of forgettable (and sometimes regrettable) characters:
And in the “universes” of the “Big Two” comic publishers there are casts of hundreds:
Should contractors that created any of these characters that did not become popular or valuable have had contracts which made provisos for unexpected success?
Or should the benefit of such success go to the publishers and investors who created the means of production, marketing and distribution of the work done by the contractors? And also bore the risk of commercial failure.
Not every writer and artist creates a Batman or a Superman.
But.
Again, as with the story of Astrud Gilberto, there is something not right.
But, again, it is less clear what can be done about it.
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Selling records or comics to a mass audience will mean, from time to time, there will be items which are massive successes.
These successes are not easy to predict, and so there is risk of failure.
But when there is a massive success, then there is, in effect, a windfall for those who hold the intellectual property rights.
But when those intellectual property rights are not owned by the creators of the work then those creators will receive none of the profits.
Perhaps some of those creators will not care, and they would prefer to have the steady income of a worker-for-hire. That is their choice.
But from time-to-time there are such profits that make it, well, unconscionable for the rewards not to be shared with the actual creators of the work.
In England and Wales, long before the mass markets of the last two centuries, the harshness of the application of certain legal rules – especially to do with property – was mitigated by the development of “equity”.
Equity provided a further set of rules which prevented certain legal actors – especially property owners – from acting unconscionably.
The court would intervene and attach an obligation to someone with legal rights to oblige them to do what their conscience would (or should) be telling them to do anyway.
This is the world of trusts and injunctions and accounts of profits: all devices which limited what those with certain legal rights could do with those rights if they were doing something unconscionable.
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Of course, equity is more commonly applied to what lawyers call “real property” (as in “real estate”, ie land) and personal property (possessions) and material wealth than intellectual property.
And, in England and Wales, equitable remedies can and are used in intellectual property cases, and presumably this is also the case in the United States.
(I am not an American lawyer.)
But equity is not just about technical rules: it is based ultimately on a sense of a thing being unconscionable.
Yes, you may have those strict legal rights – and those cannot be denied – but the court will step in a limit what you can do with those rights.
And it would seem to me that the gross unfairness of creators of exceptional and valuable works not getting any share of the profits from those works is unconscionable.
How we covert this general sense of inequity into practical remedies that do not undermine or disturb otherwise useful contractual arrangements is a far more difficult question.
Again, many creative contractors are quite happy to assign their rights in return for an income stream, with no direct exposure to the downside of their works not being successfully exploited by others.
But what happened to Astrud Gilberto, and to Bill Finger (Batman), and to Jerry Siegel and Joe Shuster (Superman) was unconscionable.
And the classic “freedom of contract” and “property rights” arguments do not wash – just as those arguments did not wash when equity was developed in the first place.
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Disclosure: I read far too many comics and I listen to a lot of jazz.
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“Music, of course, can be a matter of taste, and The Girl from Ipanema suffers from perhaps being too well-known and over-used.”
As in lifts/ elevators? But the various versions have an extraordinary history of cultural attachment and identification, especially in relation to the USA:
“The Girl From Ipanema is a far weirder song than you thought”
I am a big jazz fan, including the wonderful talent of saxophonist Stan Getz. But I am disappointed, though not surprised, that he emerges as the villain in the story of poor Astrud – he was reportedly not a nice man, just a brilliant musician.
“….. I read far too many comics ….” Aaah! You are far more than just a legal expert! You have a softer more human side, and enjoy, at least some, fantasy!
My view is that it is corporate greed, and inertia that preserves poor practices, rather than economics, that drive these unfair contracts. (There may also be some reasonable element of administrative complexity in administering fairer contracts.)
In book publishing, for example, authors get a ‘baseline’ payment regardless of any later success of their work. I think it would be hard to argue that the baseline payment is dependent on the success of other people’s books that are or have been more successful. The economics allow for the baseline payment and then for further royalties if there is greater success.
In comics, perhaps the issue is very visible because the vast bulk of what we are seeing now as films – where the very substantial revenues are being generated – are based on characters created in the 1960s. (When the ‘work made for hire’ principle was uniformly applied by Marvel and DC.) But there are more recent characters created under more creator-friendly contracts that are also turning up as film and TV – and creating income for their creators with fewer disputes.
The activities of Neal Adams and other in the 1970s and onwards highlighted that it was only really corporate greed, corporate laziness and inertia that allowed the unfairness to comics creators to continue.
Food for thought. Astute as ever. Thank you for this.
3M held the patent for the “post-it note” which used a special weak adhesive developed by their employee Spencer Silver. I have read that Silver was a “company man” who spent most of his career at 3M and was never aggrieved at not receiving royalties. However that may be, the idea of using a weak adhesive to leave notes is claimed by others and there have been legal cases and a settlement.
After the first World War the government set up a fund to reward those who had contributed to the development of the tank. One of those who applied was Winston Churchill. I don’t think anyone can deny that Churchill played a major role in its development but he was acting as a government minister and his application failed.
Perhaps the idea of equitable relief in these cases is inseparable from both an aesthetic judgement and the legal question of what it means to create something?
In Comics, Siegel and Shuster (Superman) and Jack Kirby (most of Marvel) are often cited because they created characters from scratch. Astrud Gilberto would be more like Steve Ditko who did not create Spiderman or Dr Strange but whose idiosyncratic art arguably made the characters successful. And Ditko gets a lot more appreciation than Don Heck who arguably did the same for Iron Man but whom comics afficiandos sometimes refer to as a “hack”.
Good comment Tony, in many ways. Nice to have a fellow comics fan.
Thank you. I think we’ve become pretty mainstream these days, including in the comments here.
It’s often a struggle for creators to even get a credit, Bill Finger has only relatively recently been credited as co-creator of arguably the most iconic comic book character of all time.
For decades the character of Batman was only ever created by the artist Bob Kane despite Finger having penned the first scipt for Detective comics 27 and being the man behind character having a cape instead of wings.
“But what happened to Astrud Gilberto, and to Bill Finger (Batman), and to Jerry Siegel and Joe Shuster (Superman) was unconscionable.”
I find myself unable to agree with this or your premise that “something is not right.”
You also say “Should contractors that created any of these characters that did not become popular or valuable have had contracts which made provisos for unexpected success?” Maybe. I don’t know. They didn’t, and there’s no law in the jurisdiction requiring that they should. I don’t think there ought to be.
I have no considered opinion on the comic book examples, but in the case of Astrud Gilberto I can apply my understanding of the recording industry. Session musicians are hired for the session. That’s it. If they can command it, they get better than union scale. I do not consider Gilberto to be a creator of that work, even if one argues that her performance is central to its success. That in itself is debatable. It certainly put her on the map though.
Thank you Matt for this counter-point.
There are different copyrights, of course. Gilberto was not the composer of the work, but she in part created the performance of that work, and (had this been in England and Wales) that would give her a copyright in that performance/recording (if not the composition). That, in turn, was valuable. It does not seem right that she did not get the fruits of that work, given that is what made her commercially successful.
And Gilberto, though paid a session singer’s fee, was not a professional session singer – my understanding is that she was the wife of an intended musician for the track, and she happened to be present and able to sing in English.
If we take the United States as the jurisdiction, very simply there are two kinds of music royalities. One is publishing, and the other is mechanicals. Performance royalities are owed to the publishers, which includes the publishing company (if there is one) and the copyright owners, who are usually songwriters, composers, and lyricists. The mechanical royalities are for the reproduction and sale of recordings. These are paid to the record company and the artist.
Copyright owners and publishers may not be involved in the performance of the music, but nowadays and especially in the former case often are. In the 1960s, when A&R was becoming a big thing, songwriters were typically behind the scenes. Think of Holland-Dozier-Holland and the big hits of Motown. Stevie Wonder, Aretha Franklin, and Marvin Gaye were the exceptions.
Artists are the performers of the work, but there are performers who are not royality artists as defined here. These are those who are paid as contractors. Well known performers have the clout to negotiate good deals, and sometimes are even offered points.
It’s big business. A good deal of savvy is required to navigate the playing field. Like anything legal, if you’re not sure you should hire a lawyer. My feeling is that this is simply how it works, and it’s the responsibility of the players to understand it. I don’t see any injustice, though I accept that it’s cut-throat. I think if we were to start adding equity constraints to this then it would likely have unintended and detrimental consequences.
So, according to your analysis: what, if anything, did Gilberto sign over in return for her payment? Is it your suggestion that the payment made no difference to the IPR position, and she would have had no rights to her performance/recording anyway?
I think on the day or the night, she probably signed nothing. She was probably just happy to do it. They would worry about union dues later. She may have had to join the union. Sounds like it was AFM. Hopefully they agreed to pay her joining fee.
Under US arrangements, she would have had no royalty expectations, not being a royalty artist. That’s probably what Stan Getz was anxious about. It’s credited as Stan Getz featuring Astrud Gilberto. Therefore she didn’t have any rights to sign away. She had to be paid though. The union insists on this for the protection of its members. It has to be at least the basic rate. I’m not sure whether or not she would have had to join.
If the account I link to is correct, there was certainly something which made an experienced pro like Getz desperate to ensure she did not get any returns. If she was not going to get any returns anyway, or did not have any other claim, then there would be no reason for such an experienced pro to have been so nervous.
I can only speculate. The Creed referred to in that article is Creed Taylor, producer on the track. The decision to make a recording in English seems to have been last minute. They may not have had a clear idea of how the track would be used. Getz will have wanted to make sure that the producer didn’t have some design to give Gilberto, the mere wife of a side-man, credit as a royalty artist. It might have gone that way.
So yeah, it looks like there was maneuvering, but on the other hand she didn’t protect herself. It’s not her fault. She didn’t know any better. She got no credit at all originally. The “featuring” seems to have come later. While the song didn’t make her rich, it did make her famous and made the start of a career.
If the payment had any impact on her entitlement to royalties, it would be that she was paid as a session singer. But there was no question of her not being paid at all. Had she smartened up and refused to be treated as a session player, I don’t know what that would have meant. By accepting the payment, she gave up any other outcome.
All very good points.
But to return to the origin: for me, if not for you, there is something not right with Getz getting a mansion and a fortune, and Astrud Gilberto getting almost nothing, and it was her artistic contribution that made the song commercially so valuable. And if something is not right with a strict legal position that is where, historically, the courts have developed equitable remedies.
Anyway, we may now have exhausted the topic (and any readers of this exchange!) and so may I just say thank you Matt, as ever, for your many welcome contributions to this site.
This reminds me of Clare Torry and her lawsuit with Pink Floyd over her contribution to “The Great Gig in the Sky” on Dark Side of the Moon
On a “session singer” who at the time did not get and her fair share , Clare Torry, on Pink Floyd’s “Great Gig in the Sky” on the Dark Side of the Moon album , had to wait over 30 years for an out-of-court settlement. She had been paid £30 for the original session work and after three takes, was not even told her efforts were to be included.
As for Bill Finger (writer), Bob Kane (artist) became notorious for taking most of the credit for the Batman character (as the movies from 1989 increased exposure) and for the Joker, though Jerry Robinson (artist) was also a co-creator of the latter.
Kirby (and his estate) had to fight for credit and return of his original artwork. I am of the view, love or hate the Hollywood film series , that Kirby (aided and abetted by Stan Lee and others) is now as influential (and lucrative) within popular culture to the early 21st century as Walt Disney was to much of the 20th.
Which is ironic as Disney now own Marvel.
The Clare Torry example is different. She was only ever paid the £30 session fee for her vocal work. This was never disputed since, as with Gilberto, there was nothing to dispute since she was employed contractually as a session singer for a fee.
What Clare argued was that her improvised vocal performance gave her a claim to a share of the song-writing royalty (not the vocal performing artist royalty). She won the case and so now the estate of Richard Wright (the composer of the piece) shares royalties with Clare Torry. As Gilberto, she does not receive any royalty for her vocal performance and never made any claim that she should. She gets nothing of Pink Floyd’s artist royalty.
I really enjoyed this post – equity is such a lovely concept in this world, but the idea of any act being unconscionable seems to have evaporated in the current climate.
There is an argument to be made as to the contribution of Astrud Gilberto to the success of the song; there’s also an argument to be made about fees paid to ‘minor’ contributors*. But what bugs me about this particular situation is that it was a woman, who was unable to gain anything from the huge success. Your quoted text actually made it plain, that it was the men who were conspiring with each other to create this ‘unconscionable’ outcome!
(*This reminds me of the ‘Tatort’ case: Tatort is a long-running German television programme with an iconic opening, which shows a man’s eyes being turned into crosshairs and him running away. The creators of this were paid a flat fee for their work, but years later sued for increased recognition.)
I think lawyers and politicians do not really believe in rights for creators. Very unusually, they give others rights which they themselves do not expect.
When a new law is invented, no legislator or parliament expects to be paid a royalty if a foreign jurisdiction decides to copy it.
Similarly, when a lawyer makes a novel and successful argument in court, neither that lawyer, or a judge using it in the judgement, would expect to get royalties if it is cited in other cases.
Nor do parties to a case get or expect royalties. Norma McCorvey (the Roe in Roe vs Wade) did not get, nor did anyone consider it euitable that she should get, any royalties from any women who were able to obtain abortions due to her case – nor any lawyers, judges, researchers etc who worked on the case.
And in general, we do not consider it necessary for people to get royalties for work done. If you get a plumber to install a new bathroom, they do not get a fee every time it is used.
If a session musician is entitled to royalties, is that even for covers which are sung by someone else (on the principle that the original makes the cover more valuable)? Should the sound engineer get royalties? The person who maintains the equipment? The equipment manufacturer? The cleaner who tidies up after the recording session? The interior decorator who decorated the studio?
It’s only in a few narrow fields that we have come to think of royalties being appropriate, even though the normal situation for work is that you are paid a fixed fee for your work regardless of how useful it turns out to be. Maybe true equity lies not in extending further payments to more people, but in restricting them to fewer.
If someone has the power to charge royalties for something every time it is used, they will soon start to abuse that power. See this speculative comment about cars which are extensively controlled by software charging for opening and closing windows.
https://www.schneier.com/blog/archives/2023/06/the-software-defined-car.html/#comment-422666
We seem to have gotten rid of the divine right of kings, but instead we now have the divine right of property. The entirely artificial invention of Intellectual Property (IP) always seems to be the area where this is most abused, with no consideration given to the concept of equity and widespread unconscionable application of property rights.
Surely ‘Aint misbehaving’ by Fats Waller, sold for $25, is a great example of what you describe!
Astrud Gilberto was only a session artist but she sang the lead vocals for a monster hit. Under her contract she was only entitled to a session fee, but as she earned the publishers enormous revenue she ought to have been given royalty rights retrospectively. If session musicians act as lead artists they should be credited and paid accordingly.
The same goes for writers for hire who create characters who become very popular. They should be given proper credit and reward retrospectively.
“The Girl From Ipanema” was part of my childhood. It seemed to be played on every show on what was then known as the Light Programme. I couldn’t have named singer, I had no idea where Ipanema was either. But now you mention it her name is very familiar to me so it must have been planted in my subconscious at the time.
I know David asked me to curtail it, but I wanted to jump in on a reply here because “Under her contract she was only entitled to a session fee” is not accurate. She had no contract.
Throughout her career following this, Astrud Gilberto continued to work without a contract, according to the article cited. Because of this, she was taken advantage of. She just wanted to make music, so she was willing to work hard and not get paid much.
Fool me once, etc. These are experiences you should learn from and not repeat the mistake. She was a young mother going through a divorce and she found herself touring in the band of the loathsome Stan Getz so that she could earn a modest living.
I genuinely pity her for this. I think she could have got advice and representation from a lawyer and done better, but I don’t know that for certain. It was and is a man’s world. She does deserve better than she got. Never work without a contract. I wouldn’t. Would you?
Legally it is a contract.
There’s a possible analogy with the Shanks v Unilever situation in the world of patents. An inventor made something which turned out to be massively valuable, and was able to sue for fair compensation under section 40 of the Patents Act 1977.
If as a society we really cared about the equity of the creative industries, we could surely legislate to add a comparable provision to cover copyright works.
But the UK has opted not to legislate on equitable remuneration, and aside from the work of Kevin Brennan MP these issues are never a legislative priority.
I sometimes wonder if we as a society aren’t cultural a bit too in love with the romance of the penniless artist, as in the examples you’ve described, to make sure artists are paid properly.
Absolutely fascinating – thank you. I dipped into the concept of equity and unconscionable and found it a strange world – lions and hyenas occasionally made to behave. Even went back to Plato’s time, we progress very slowly.
Meanwhile Boris has with one bound escaped the fray – pro tem. I fear he will live to fight another day.
As a counterpoint example, after the success of Star Wars (aka A New Hope), George Lucas gave “points” [percentage points, or fractions of percentage points, of the producer’s ‘gross profit’] to actors and others who contributed to the success of the film.
There is certainly a moral case that creators of valuable material should be properly compensated in proportion to the value they create, but is there a legal means to ensure that? I’m sceptical that a session musician could have much expectation of anything more that their agreed fixed contractual fee for the work they did, although I’ll admit that equity was never my strongest subject as a law student. I would expect any intellectual property rights they might have to be assigned expressly or impliedly to the commissioner. Ideally the contract would make that clear – and there could still be a oral contract in the absence of a written one, but what terms would it contain? Perhaps there might be scope to claim unjust enrichment or quantum meruit?