« Are ELS or "law & econ" distinct substantive areas of legal inquiry? | Main | Domestic Torture & Prison Conditions »

Tuesday, May 09, 2006

Is Bach Better than Britney?

Let's say we hear someone claim "J.S. Bach's music is better than that of Britney Spears."  What kind of  claim is that?  Is it sheerly a matter of taste--like saying I'd rather have chocolate ice cream than vanilla?  Or is there more at stake? 

Such musings on the relation of truth, beauty, and judgment may seem far afield from law topics.  But it's actually a rather practical question.   The American Society of Composers, Authors, and Publishers has to allocate funds from license fees for copyrighted compositions and lyrics, and does so on a strict "follow the dollar" formula, which claims not to "judge the subjective artistic merits" of any work.  But ASCAP does have about 16% overhead, and a foundation that supports, among other things, classical music composers.

ASCAP is a model for Terry Fisher's proposed solution to the conflict over digital downloading.  Fisher would permit all broadband users to download all the music and movies they like, provided they pay a $6 a month tax.  (As of 2004, it's estimated that that tax on 33 million broadband users would cover all the major players' revenues.)    The big problem comes with distributing the tax via a government agency on a "follow the download" formula.  What if the biggest audiences are for unsavory things?  Can the government say, "no, we aren't going to allocate these funds to X"?

I would like to say it can, and that, moreover, it ought to "weight" certain edifying (and potentially endangered) genres (like classical music or documentaries) slightly more in the distribution formula.  I know that Bruce Ackerman has made the moral argument against such a proposal, and Finley, though supportive, may leave a few constitutional roadblocks.  What are your thoughts?

Posted by Frank3 on May 9, 2006 at 12:42 PM in Intellectual Property | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Is Bach Better than Britney?:


I'm afraid I'm too busy grading to respond to many excellent comments here. Let me just say here that I am beginning to think that a direct reallocation of funds from "low" to "high" culture may be politically impossible. But perhaps we can all agree on better funding the musical education that would make appreciation of the latter possible. (This goes back to Raz's point in Morality of Freedom on the adequacy of options, that I raised earlier.)

Posted by: Frank Pasquale | May 16, 2006 5:31:36 PM

oh wow, there are some silly arguments in this thread.

1) the debate on what art is "better" should not end with "what is more complex"
Go look at any great collection of art annd you will see lots of paintings of fruit. How about paintings of haystacks or water lillies? are these not great works of art simply because they seem simple? can't something simple, done well, be great works of art? can't we say that britney is one of the best at doing what she does?

2) the value system furthered
I don't think this tells us what art is worth protecting and furthering. first, there are the examples posted earlier about art forms like opera. But I would add that one function of great art may be to give words or images of ideas that run counter to ideas that society normally tries to embrace. art can be a powerful way to express ideas that people are not confortable, and in fact if anything those ideas are what needs to be protected, not mainstream ideas of what it "good". also, how about purely instrumental music? is that furthering some sort of value system?

3) why classical music?
why not traditional east-asian or african music? classical is european elite music. why embrace that? why not american forms of music (blues, rock, jazz, bluegrass, ect?) some of these are not very commercially popular.

4) perhaps one way to look at what makes art "good" or "valuable" are the reactions it brings up in observers. if that is the case, then popular music could very well be great art because it seems to reach so many people, while classical touches relatively few.

5) About democracy
i reject the idea that just because we are a democracy, we have to sit back and let gov officials do their thing. the realities are such that a representative probably won't get voted out simply because they set up another body who funds some music that might be the "correct" music to fund. if you really believe that a decision is proper simply because somewhere along the chain of causation is a vote, then i have a bridge to nowhere in alaska to sell you.

6) about choice in the market place
choice sounds good to me. however, this is not an argument for which coices we should have.

Posted by: Derek | May 10, 2006 12:52:41 PM

But the notion of government support of art is that the people as an exercise of their free and autonomous choice, delegate some authority to an expert who is better positioned to direct the government funding. That's how we have the National Gallery and stuff.

Posted by: Paul Gowder | May 9, 2006 9:47:10 PM

Paul, I'm not trying to praise the market or even defend it. My only point is that the solution of governmental ranking of music by quality is something that people who care about aesthetic issues should think carefully about before embracing. Ultimately, I'm happy about institutions such as the NEA (or at least the old version of it) that subsidize art that might not have a strong chance of success in a totally open market. I'm not sure that is necessary for Bach, however (although of course he'd probably be only a footnote without government subsidies when he was writing). As for the idea of representative government, how does that square with your Kantian position on aesthetic judgments? I'd think you would run in horror from a democratic polling of the people about what music is best -- unless you are a big fan of Kenny G. I wonder whether, empirically, non-democratic governments have done a "better" job subsidizing art than democratic governments, at least before the 20th century.

Posted by: John | May 9, 2006 7:33:35 PM

Poking my head in for one more point... John, can I remind you that the U.S., at least, is a nominal representative government? Market choices are the "power" of the people in one sense, but political choices by the same people are the "power" of the people in another.

I don't see why we would want to privilege the decision of the people to buy certain kinds of music over the decision of the people to vote for politicians who will enact policies causing the government to subsidize other kinds of music. Either way, it's an exercise of public autonomy.

(You can criticize how free our government really is, but I could do the same with the market.)

Posted by: Paul Gowder | May 9, 2006 5:20:15 PM

The clip is quite funny. On the issue of what to value, it all comes down to whether you want to embrace some central, probably governmental authority that will tell us what is good, better, and best. Maybe that is better than vulgar consumerism. But it is still about who has the power to say what counts as real culture. Obvious point, I suppose, but still worth highlighting.

Posted by: John | May 9, 2006 5:08:44 PM

PS: Just so you don't think I'm a snob, I'd say that this is is one of the funniest clips I've seen recently:

so I'm a bit torn on the whole high/low culture thing. BUt as Paul has said, I think people like Andy Milonakis are going to get an audience no matter what level of subsidy they get.

Posted by: Frank Pasquale | May 9, 2006 4:16:36 PM

John, those are some very good points against the "values-in-music" criterion. I guess I'm more thinking about what to combat than what to support. That said, is the adultery in opera as upsetting as, say, the consumerism in a lot of current music? I don't think so, because I think the opera is about more than the propositional content of the lyrics...whereas the comparative simplicity of a lot more recent music makes it hard to say the same about it. (Roger Scruton elaborates on this point somewhere...but i've got to unearth that essay.)

I'd also say that a Kanye West song like "Diamonds are Forever" (critiquing the international diamond trade) should be rewarded more than a ditty singing the praises of, say, Courvoisier or Abercrombie and Fitch....Pace Bleistein v. Donaldson!

Posted by: Frank Pasquale | May 9, 2006 4:14:25 PM

Even assuming that Bach's music -- and particularly the ideas expressed in the texts that he put to music -- really illustrates a superior value system, sorting by values would be pretty tough. What will you do about opera -- all that cheating of various kinds, by the heroes, no less, and all done to lovely and enduring music. And then there is the problem of Wagner . . . . And what was Ravel really getting at with Bolero? Truth, beauty, and a superior value system? Maybe, or perhaps as Meatloaf might have said -- talk about an enduring classic -- two (or maybe just one?) out of three ain't bad. (In any event, I suspect Ravel would have grooved to "Oops, I did it again," and then done some variations on it.)

Posted by: John | May 9, 2006 3:59:36 PM

Thanks, Paul. I really like the way you reframe the neutrality point, focusing on the adequacy of options as a precondition for autonomy. Joseph Raz tries to make that perspective a part of liberal political thought in pp. 370 or so of The Morality of Freedom.

Posted by: Frank Pasquale | May 9, 2006 3:58:12 PM

Thanks, Paul. I really like the way you reframe the neutrality point, focusing on the adequacy of options as a precondition for autonomy. Joseph Raz tries to make that perspective a part of liberal political thought in pp. 370 or so of The Morality of Freedom.

Posted by: Frank Pasquale | May 9, 2006 3:58:11 PM

I'm glad Fisher's proposal is still steaming along, notwithstanding the perennial taste problem Frank raises that has also dogged the NEA, etc. etc. etc.

As a good little Kantian, I'm going to leap up and take the position, aesthetic judgments are universal, by jove! I'm not going to try and defend it, instead shamelessly referring readers to the Critique of Judgment and hand-waving on past the point. But if aesthetic judgments are universal, does anyone dare argue that Britney is better than Bach?

Assuming that we can objectively say that Bach is better than Britney, the question then remains what we're to do with Ackerman's argument for neutrality. Brush it aside. The nature of popular works is that they will get adequate "play" regardless of subsidy to less popular works (unless those subsidies are extreme). Subsidizing Bach isn't going to make a serious dent in the demand for Britney's music, nor, assuming Britney can still pack concert halls, is it going to make a serious dent in the supply. By contrast, not subsidizing Bach might impair both the supply and the demand for Bach.

Assuming that both Bach and Britney contribute to aggregate social utility, it behooves the state to adopt the policy that promotes both. Subsidize Bach.

Alternatively, we can justify Bach-subsidy on a purer version of the neutrality notion by pointing out that the public can't make a truly free choice between the two unless both are realistic options, and that too requires subsidizing Bach.

Posted by: Paul Gowder | May 9, 2006 3:37:48 PM

Thanks for commenting, Carlton. I think your idea of a classic is a very compelling one, that I'd like to unpack a bit. Is the mere fact of longevity the indicator of quality? or might we say

1) that experts on music all agree that Bach is superior to Britney, due to the complexity or beauty of his compositions?

2) that the value system espoused in Bach's music (faith, hope, and charity) is superior to that of Britney (self-assertion, hedonism, and vanity)?

I have to say that I am torn between 1 and 2. I like the idea of government delegating the weighting decision to a group of musical experts. But I'm also sensitive to critiques of those like Wendy Steiner, Julian Stallabrass, and John Carey, who argue that a self-serving art elite has taken ars gratia artis ad absurdum!

I'm now rereading Tolstoy's What is Art, and though it's obviously extreme, it has some good rationales for 2). And a good deal of critical cultural commentary from the left and right would leave us suspicious of current consumerist pop culture.

One final aside. Jack Balkin criticizes distinctions like the ones I'm trying to make in a critique of Cass Sunstein's Democrcy and the Problem of Free Speech (here:
but he himself is a quite accomplished interpreter of "high culture" music; see:

so perhaps we should follow his actions and not his words!

Posted by: Frank Pasquale | May 9, 2006 3:17:49 PM

Um, make that one million, not 1,000,000 million hypothetical Bach listeners.

Posted by: Dylan | May 9, 2006 1:26:09 PM

That's one of the dumber arguments I've seen in a while. Well, yes, if you determine your "objective" criteria to predetermine the answer, Bach is "objectively" better than Britney. But why is enduring value more important than the biggest current value? Let alone whether 1,000,000 million perpetual Bach devotees are "better" than today's 8M Britney CD purchasers and the other 30M who nod along when it plays on the radio. How can you possibly claim that ten thousand and first Bach recording is more valuable than the first recording of something that has a bigger current following and has a chance, however slim, of providing meaningful future pleasure to listeners?

I'm known to appoint myself as the only acceptable arbiter of good taste when I'm around my friend, but at least they and I know I'm a jackass when I do it.

Posted by: Dylan | May 9, 2006 1:24:53 PM

Interesting post, Frank. Yes, Bach is objectively better than Britney Spears. Although Bach died over 250 years ago, his music is still widely performed all across the world. Tens of thousands of recordings are available, and scholars continue to churn out monographs analyzing the subtleties of his music. In the year 2256, I'm sure there'll still be Bach performances and Bach scholars. Could anyone maintain with a straight face that the music of Britney Spears will still be performed or studied in 2256? A classic, of music or of literature, is a work that has stood the test of time. Some works are undeservedly forgotten; none are undeservedly remembered. Whatever the implications of current doctrine, the Constitution ought not to be interpreted to prohibit the government from allocating funds towards works that we know are of enduring value, rather than to those that almost certainly are not.

Posted by: Carlton Larson | May 9, 2006 1:06:27 PM

Frank -

Mark Schultz has a pretty persuasive paper arguing against these types of systems based largely on concerns about how the government would act with such a large pool of money. I don't think it's on SSRN yet though.


Posted by: Mark McKenna | May 9, 2006 1:02:24 PM

The comments to this entry are closed.