Why Does Copyright Ignore Performers? The Case of Flamenco in Spain

Abstract

This article analyzes the gap between the perceived value of the performer's contributions to the musical work and the treatment that it receives in the market. It applies to the case of flamenco in Spain. The proposed methodology is based on three approaches: a study of intellectual property laws; interviews with experts to differentiate among creative and humdrum agents; and finally, double system surveys to determine the perceived valuation of the contributions of such agents. The conclusions show how the flamenco performer develops a creative labor; however, it is not protected by copyright or via royalties, commensurate with its importance.

Keywords:

• Copyright
• creation process
• flamenco
• perceived value
• performer

JEL Classification:

• Z11
• K11

Acknowledgments

The authors acknowledge Francisco Heredia Carroza and MSc. María José Mejía, for many helpful discussions and comments, as well as all of the interviewed experts, the organizations that distributed the survey—Flama: La guía del Flamenco, Centro Andaluz de Documentación del Flamenco, and the website Promocionmusical.com—and finally, the people who took the survey.

Declaration of conflicting interests

No potential conflict of interest was reported by the authors.

Notes

1 Flamenco was accepted into the UNESCO Representative List of the Intangible Cultural Heritage of Humanity in 2010.

2 This article uses the concept of perceived value as an approximation of the cultural value. It has followed Anderson (1993, 2), who states: “to value something is to have a complex of positive attitudes toward it, governed by distinct standards for perception, emotion, deliberation, desire, and conduct.” Upon evaluating perceptions, it creates a sense of a valuation. As mentioned by Klamer (2003, 10), “while valuing something can be a spontaneous process, evaluation involves the conscious reflection on the reasons for a valuation.”

3 “Consumer” is understood to be the person guided by their preferences and willing to invest resources (time and money) in their participation at live shows and/or recordings (Werck and Heyndels 2007).

4 “Expert” is understood to be the person who, through specialized training and accumulated experience (Holbrook 1999), whether by study or exercise of their profession, has a high degree of artistic knowledge (Bourdieu 1984). Thus, for the purpose of this study, the experts are fifty-nine cultural managers and fifty-one critics (Hillman 2010). Cultural managers arbitrate the options of presentations at live concerts, they are intermediaries between performers and final consumers; critics carry out valuations of the performers with their appreciation in the press, at festivals, and at award presentations.

5 Publishers demand a cache percentage due to the evolution of music sales, in some cases up to thirty percent of it.

6 The data that appear on the Plataforma en Defensa de la Cultura (2016, 90) came from an ADAMI’s (member of the Association of European Performer’s Organizations) graph, whose calculations used the annual figures of the Syndicat National de l’Edition Phonographique (SNEP), as well as from the study of 600 artist contracts that were published by the Marché International du Disque et de l’Edition Musicale (MIDEM) on the occasion of the “Lescure” mandate, in collaboration with SB Consulting studio.

7 The interviewed experts are: authors who also perform the three flamenco manifestations; politicians responsible for cultural affairs, like the former Counselor of Culture in Andalusia; representatives of the two most important Spanish copyright management entities: Sociedad General de Autores y Editores (SGAE) and Asociación de Artistas, Intérpretes y Ejecutantes (AIE); cultural managers of important flamenco festivals such as Bienal de Flamenco de Sevilla and the Festival de Jerez de la Frontera, amongst others. The selection criteria of the interviewed experts was their relevance, considering specifically awards obtained in the case of artists (Latin Grammy, Masters of Mediterranean Music of Berklee College of Music, Medalla de Oro al Mérito en las Bellas Artes, amongst others), festivals managed in the case of cultural managers, and the level of responsibility with regard to cultural-related themes. Appendix 1 provides the list of the interviewed experts and their distinctive features.

8 The structural elements were identified based on the work by Rosón (2010): harmony, rhythm, lyrics, and melody. Likewise, they were endorsed by the interviewed experts who highlighted the creative contributions of the performer, specifying the elements that reflect what the article defines as differentiating talent.

9 The palo is each of the traditional varieties of the flamenco, such as the bulerías, alegrías, fandangos, or tangos, amongst others. These varieties are distinguished by their specific rhythmic metrics, called compás, a delimited harmony for the music accompaniment and specific themes associated with them; e.g., sadness, happiness, love, amongst others (Manuel, 2010).

10 Royal Legislative Decree 1/1996 of 12 April 1996 enacted the consolidated restated text of the Spanish Copyright Act 1996, lending order, clarity, and harmony to the statutory provisions on the matter.

11 Heredia-Carroza (2019), through an empirical study, developed a measurement scale that combines qualitative and quantitative instruments: interviews with experts and surveys of consumers, respectively. The first one helped identify the aspects that make up the perceived value of the performer; the second one allowed consumers to value given aspects. Finally, through a correlations analysis between a performer’s contributions and an explanatory factor analysis by principal components, this study identifies two factors that summarize the elements that affect the differentiating talent of the flamenco performer: virtuosity and feelings.

12 Public domain refers to the intellectual heritage that is free from all exclusivity in its access and use.

13 Flama: La Guía del Flamenco is a flamenco information portal, ticket sale, agenda of shows, and news. It takes place in Spain and France on a monthly basis since January 2006; the Centro Andaluz de Documentación del Flamenco is an institution created in 1987, part of Consejería de Cultura of the Junta de Andalucía in 1993. It is dedicated to the recovery, conservation, research, and disclosure of flamenco; promocionmusical.es is one of the most important websites for music business in Spanish language.

14 Attached as Appendix 2 are the full survey instruments.

15 Full statements are attached as Appendix 2; specifically, in section 3 of the survey instrument.

16 Sentence of Cour de Cassation 1 July 1970.

Additional information

Funding

The first author discloses receipt of financial support for the research, authorship, and/or publication of this article. The authors acknowledge financial support from Asociación Universitaria Iberoamericana de Postgrado.