Michael Jackson v. Prince: Thinking About Copyright, Intellectual Property, and the Age of the Eighties

12-0135tIrene’s recent post on why we love intellectual property gets at its certain power–its ubiquity in everyday life. The recent death of Michael Jackson speaks to that particular ubiquity. What was necessarily powerful about his death was that for kids of a certain generation (maybe if you were born between 1972 and 1980?), his music served, as the pundits keep saying over and over, as the “soundtrack” of our lives. I remember one slumber party where all of the Michael Jackson videos played over and over and over for 24 hours (those poor parents). The summers of 1983 through 1985 were consumed in the great debate (forget US v. USSR) of the middle 1980s: who was better, Michael Jackson or Prince! I was a stone cold Prince fan, who marshaled my arguments as if I was getting ready for battle (Purple! Let’s Go Crazy!, Purple!). I was usually in the minority in that one, as no one could top Michael’s videos (did Prince dance with zombies (No!), could Prince moonwalk (No!), could Prince rock that awesome red jacket (No!)).

This “great” debate of the Eighties morphed, though, in the Nineties, into a more interesting debate about, strangely enough, the performance artist’s relationship to copyright. Michael Jackson often sought to own publication rights to songs and maintained that as a source of revenue. Famously, in the mid-1980s, Jackson purchased half of the Beatles catalog for 47 million; he later sold that property to Sony for 90 million, and indeed at his death, that catalog alone is potentially worth 500 million.  He also owned the separate catalog of his work. He did not exercise, however, his performance rights as extensively. Notably, at the time of his death, the actual funding for his contract tour was provided by outside investors.

Prince, on the other hand, fought a very public battle (remember his five-year career as The Artist Formerly Known as Prince?) with Warner Brothers to be released from both his publishing and recording contracts. After the end of that fight, he moved onto innovative ways of distributing his work so as to build an audience for his touring (which he views as his primary way to make money). Prince also began to exercise much more control over his image (did you know that the name Prince is now trademarked?) Indeed, the “Prince” model–increasing independence from record labels with one’s primary source of income deriving from concerts and other uses of their image–is often suggested as a way for artists to command income in the era of digital downloads.

Publish or Perform? The question as we look today at Michael’s death: did Prince win after all?

And don’t get me started on Madonna and The Right of Publicity!

This Post Has 6 Comments

  1. Irene Calboli

    From a pure copyright standpoint, the tragic death of Micheal Jackson prove very “profitable” for whomever is the owner of the copyright of his songs. TVs and radios all over the world are playing his songs and, of course, every time the content is distributed, royalties go to the legitimate owner of the copyright — at least this is the rule — and now we will also have issuse about his right of publicity, merchandising, etc. So, once again, we see IP in action in something (this time unfortunately sad) of everyday life.

  2. Richard M. Esenberg

    Chief Justice Roberts saw the great divide coming (in music, if not in the business of music.) While working in the Reagan White House, he advised against a Presidential letter to Jackson in advance of a series of concerts in DC. He wrote:

    It is also important to consider the precedent that would be set by such a letter. In today’s Post there were already reports that some youngsters were turning away from Mr. Jackson in favor of a newcomer who goes by the name “Prince,” and is apparently planning a Washington concert. Will he receive a Presidential letter? How will we decide which performers do and which do not?

  3. Aaron Todd

    As a musician, I have always found the question of Michael Jackson vs. Prince a fascinating one. I came of age in the late 80’s, and both Michael Jackson and Prince had a tremendous impact on me, for different reasons. I saw Michael as a consumate performer and visual visionary, and Prince the multi-instrumentalist and live showman akin to Sly Stone and James Brown on steroids.

    I always thought and still do, that Michael was limited to some degree as a creator of intellectual property, by his lack of proficiency as a musician. Quincy Jones did a fantastic job lining up world class musicians like members of the band ToTo , Greg Phillinganes Sheryl Crow, Slash and many others, he didn’t have the kind of creatuve control over the creation of his music that Prince has. This is in no way a criticism of MJ. Michael came to have a great degree of input artistically in how the music he sang was recorded. He chose up until the end, some of the hottest writers and producers to work with including of course Quincey Jones, Rodney Jerkins, (Darkchild Productions), Teddy Riley etc., just a fact from a purely musical perspective.

    Prince was, and is, much more comfortable as a self-contained singer/songwriter/musician in the tradition of Stevie Wonder and Sly Stone. , in some ways, his band really became more of an extension of him, rather than totally necessary for recording sessions. As for production, for better or worse, even in the early days when Warner Bros. had his first two albums quietly overseen by producers, Prince, for nearly 30 years has been his own singer/writer/musician/producer/

    To get to the question Kali poses, I wouldn’t use the word win in the “sports” sense, perhaps not at all. But yes, with regards to ownership of property rights, Prince’s epic battle with Warner Bros ended up gaining him a more clear win, that MJ’s deal with Sony. Prince not only reclaimed his masters, (the original master recording artists submit to a record label once the recording process is complete), but he actually reclaimed his name, which meant he gained tremendous control over how his image would be represented in the public medium. These master recordings are often used by labels to issue and re-issue (sometimes ad infinitum), greatest hits collections, where the artist’s music of course can be sold without the costs of re-recording. And digital re-mastering special collections which enhance the quality of original recordings, (again make the record labels money incurring the costs of re-recording the essential music).

    This is quite different from Michael Jackson buying a part of the Beatles catalogue, (a smart $47 million dollar business move of course, which gave him a lot of leverage in his business portfollio). Ultimately, I understand, MJ had a partnership deal where he shared 50% of his publishing with Sony Corp’s SNE Music Publishing. The value of Jackson’s half may be according to Business Week, worth as much as $500 Million. I really hope the debt owed by his estate doesn’t overwhelm it, and that his children and family are left with a healthy legacy once things are sorted.

    In the end, again, I’m not sure if Prince won, but what he got after all of his challenges during the 90’s (remember he wrote slave on his face to embarrass Warner Bros publicly?) What he got was a much cleaner deal.

    (I heard Michael Jackson make some comments at a speech on behalf of artists’ rights in New York, (and during his battle with record exec Tommy Motola), that gave me the impression that he had come to take a public position on intellectual property much closer to Princes’ (He actually called Motola, the executive of his record label “devilish”) and in his song “They Don’t Really Care About Us” he was alluding to how corrupt powerful systems are. (The recording industry perhaps?)

    I wonder if Michael Jackson, had he lived, and had the kind of success in London that was predicted, what he might have changed regarding his intellectual property. Sadly, this won’t be answered anytime soon.

  4. Liat Levinson

    I have tremendous respect for both artists. They were both great pioneers with regards to the rights of an artist to own his own work.

    I must disagree with a comment made above “I always thought and still do, that Michael was limited to some degree as a creator of intellectual property, by his lack of proficiency as a musician. Quincy Jones did a fantastic job lining up world class musicians like members of the band ToTo , Greg Phillinganes, Sheryl Crow, Slash and many others, he didn’t have the kind of creatuve control over the creation of his music that Prince has.” While it is true that Michael Jackson could not play any musical instruments, he actually used his voice as a human beat box and recorded the different parts of the song before submitting it to the musicians. The original bass line of “Billie Jean” was recorded with his voice alone. Also, Both Sheryl Crow and Slash were chosen by Michael Jackson, not Quincy Jones. Slash was used on all MJ records starting with Dangerous, which Quincey Jones had not worked on.

    Both artists had great respect to one another and were actually friends in real life.

  5. Aaron Todd

    I actually agree with your clarifications. Michael did choose the musicians, and producers that he worked with, both with and without Quincy’s input. This is evidence of his clarity of purpose musically, and his power within the label structure.

    As for Michael’s musicianship, you are also correct to mention his ability to hum, beatbox and even play rudimentary parts on keyboard for musicians to get his point across. This absolutely is creative, and musical. The point I was making regarding the differences between Prince and Michael (again only an opinion from this musician) with regard to intellectual property was that Michael’s creations were more collaborative, by necessity.

    While Michael could sing the guitar part for example, his voice singing the part, did not actually end up being what was played on the recording. (As a fan, that would have been a treat to hear btw). The guitars, and various other instruments with rare exception, were played by someone else. This was a requirement to get the music of Mj that we love so much, produced and recorded. I also know that Michael was a big fan of creativity, so once he outlined something, the musician was free to add their gifts to the mix.

    In Prince’s case, the point I was trying to make (maybe unsuccessfully) was that not unlike Todd Rundgren, or Stevie Wonder, we will find much of his music recorded, produced and arranged by him alone. Not all of it of course, there is music in his catalog that came from collaboration. (In fact, many of the musicians he collaborated with, like Rosie Gaines, I consider friends. And to this day, one could probably find sore spots regarding who actually wrote what part, when. Prince wins those arguments lol).

    At any rate, I was trying to highlight those differences, and maybe explore the nature of musical collaboration and ownership from a musician’s perspective. (I also love the fact that you mentioned the fact that both men were friends in real life. A lot of people don’t know this).



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