Category: Intellectual Property

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.