The Changing Reality of Making Music in the Internet Age

By Gene Quinn
May 19, 2015

Ivo Mijac, the man behind the music.

Ivo Mijac at PLI in San Francisco.

Many attorneys who specialize in intellectual property law know Ivo Mijac as a Program Manager for the Practising Law Institute. Ivo is based in the San Francisco offices of PLI, but he travels all over the country for PLI, focusing on patent law and litigation course offerings. What many probably don’t know about Ivo is that he is a musician. In fact, Ivo’s band, Amalgamation, was just voted Best Band in San Francisco for 2015 by the SF Weekly readers.

For some time I’ve wanted to sit down for an interview with Ivo to talk about the business of music, the creation process, how new technologies affect the industry, and the always present threat of copyright infringement. I caught up with Ivo recently at a PLI program in San Francisco, where we chatted on the record about the process of creating music and the struggles creators face.

What follows is my interview with Ivo Mijac. You can also learn more about the band by visiting the Amalgamation Facebook page.

 

Amalgamation.

Amalgamation.

 

QUINN: Thank, Ivo, for taking the time to chat with me. So many people in the IP community know you because you have worked for PLI for a while. What they probably do not realize is that you are an artist, a musician who just released an album. I think too often people don’t understand what goes into creating and that leads to some people who believe that infringing isn’t really hurting anybody. So I thought we could talk about some of that from the creator’s perspective. Please tell us a little bit about your music, where you got involved, what you are doing now, where you want to go.

Robin Lovejoy in concert.

Robin Lovejoy, Ivo’s fiancé.

MIJAC: Well, my fiancé and I have a band based out of San Francisco called Amalgamation. We are a blend of modern and alternative rock with classic influences. She sings and plays guitar. I play guitar with a bass player and drummer. It is a quartet. And we have been going at it for the better part of ten years. We have been writing and performing locally while also doing some touring on the West Coast as well. And we have released two CDs of material. Our first release was called Queen of Dreams. Our newest release, called Circadian Rhythms, actually just won a best recording award with the Bands4Bands Foundation. It was nice to be recognized among our peers.

QUINN: That is good. So many people go at this for so long and do not have that type recognition. And yet the recognition is fans showing up to shows and buying your music. You do it because you love it. Right before we started this interview you were we talking about the Marvin Gaye lawsuit for a little bit. Even within the industry sometimes people do not seem to really understand that the culture of the music industry is to share with others, but to also get credit and benefits so everybody can do it like a rising tide lifts all boats. What are your thoughts about that?

MIJAC: My perspectives come from the vantage point of a musician and listener of music, rather than a legal view with the specifics of the case. I think things have changed in a way because technology has allowed sampling of very specific parts of songs to take place sometimes without written prior acknowledgement or permission from the original artist.   I think in music, going back many decades, people have always been lifting ideas from one another and interjecting those bits of ideas as musical “flavors” into songs. The lifted parts were brief and the influence might have been subtle, but noticeable. Guitar players have lifted licks or phrases off of the old Blues artists, and continue to this day. So this is really nothing new. But to extract specific parts of an existing song and make it the basis of a “new” song for me is a stretch and potentially signals a lack of deeper creativity and emotion. If however a musician does this and obtains permission to use from the original copyright holder, then I can respect that.

I had just heard the Pharrell and Robin Thicke song recently. It was my first time hearing it, but to my musical ears it is quite clear that the majorityof his song structure was based off of “Got To Give It Up” by Marvin Gaye. I can hear many elements of the Gaye song being lifted and “created” into “Blurred Lines”: the drum and bass tracks have an overwhelmingly similar musical note/value relationship between one another, the predominance of the cowbell, the presence of background voices and the specific howl of a background voice being extrapolated and used repeatedly throughout the song. Sure there are very minor changes that Pharrell and Thicke did to the above parts, but to my ears, the overall majority of the song structure is clearly taken from the Marvin Gaye song, and apparently without permission.

QUINN: Yes, I agree with you and that is what I thought too. The first time I heard that song I remember exactly where I was because I have had discussions with people about this. And a lot of times with music you either hear it or you do not hear it. And if you are in the music industry or you are familiar with intellectual property law in this space and you hear something like that, you cannot get the original out of your head. And that was what was going on with me. At first I thought it was the Marvin Gaye song and I thought it was a little different treatment of it. And then I realized, no, this is a wholly new song and they have just taken it from Marvin Gaye. I thought they had to have gotten the rights. And they didn’t. But where you draw the line in the music industry? Yes, it is flattering when somebody uses your ideas, but when they take too much and you are not getting any credit for it that really strikes at the heart of your ability to make a profit because licensing is a big part of income stream here.

Ivo Mijac in concert.

Ivo Mijac.

MIJAC: It is. However musical accidents can happen, as recently between Sam Smith and Tom Petty. When I first heard the Sam Smith song “Stay With Me” I thought that a significant portion of his melody and song structure originated from “I Won’t Back Down” by Tom Petty. I was originally put off by the Sam Smith song. What I later learned however is that after the “accident” was discovered, Sam Smith agreed to give co-writing credit to Tom Petty. The public agreement seemed quite amicable and a general feeling of professionalism and respect maintained. So Tom Petty received authorship and creditbut in the case of Blurred Lines, there was no credit given in advance nor immediately after public release.

QUINN: Can you explain what you mean by “credit”? I know what you mean but that is really the way you guys get paid, right?

MIJAC: It is. It is the way that we get paid either as a performance, a one-time performance, or royalties when it is played on the radio. So that is how we get paid. Other musicians, like Beck, have done a lot of sampling over the years. But to my knowledge he has always given credit to the originators of the parts he lifts to form his songs. So it is really important that people get credit because that is how we are paid, our intellectual property is generates revenue and a livelihood by receiving credit for our work that others use.

QUINN: The thing that amazing me is it seems like this should be commonsense. It is a shame that this even has to be spoken about. But if you guys cannot get paid for creating then you really just cannot create. People who have 9 to 5 jobs would get that if you said, “You are not going to get paid for doing that because we are going to take your work, turn it in and claim it as our own.’ They would say, “Well, that’s not fair. I spent all day doing the work so I should get credit for that or get paid for that.” That Is really what we are talking about here, is it not?

MIJAC: I think there are a lot of broken things in the music business and this is one of them. Again, I think that this is influenced by technology and things that we have not decided on. And I think that the business model of the recording industry is broken. Maybe on the mend, but I am not sure of that. They are probably trying to figure out how to survive and turn a profit with all the illegitimate downloading that happens in file sharing. But they are also squeezing the artists, too. If you look at some of the 360 contracts, the take for the artist is meager. So I think there are a lot of things broken in the music industry and I think that it is in dire trouble. And not just the music industry but also all other performing art industries. But being a musician, I feel it very prominently.

QUINN: A lot of people think that getting a record deal is the greatest day of their lives and yet they do not realize how easy it is to be shelved and how hard it is to produce what the label wants. They do not realize that they are really only going to get paid largely for performing and if they are very successful after the fifth or sixth album down the road. After that, is when they can produce their own stuff, distribute it, and really start to make the money. It is a hard industry.

MIJAC: It is challenging. I think it has changed over the years and it is a lot of 360 deals that are being signed, in which the record companies retain literally most of the profits ranging from merchandise to song royalties, licensing, concerts, etc. I do think that the plus side of technology is that it allows individual artists like myself and our band Amalgamation to have a greater reach than artists in the past. We really do, literally, have the world at our fingertips. It may have been unheard of 20 or 30 years ago for a record company to do a mass marketing campaign in India or some other non-Western market. But now, the independent artist has access to different markets across the globe. We do not necessarily need a record company in order to approach Internet radio streaming stations in Europe or elsewhere.

And there are other ways to break into those markets besides radio such as blogs and e-zines and eventually performing. But the key to exposure for the independent artist is getting the people in those far flung places to hear about us. It is very challenging. I think that there are independent record companies that have the financial means to help promote independent artists into those areas, but again their financial means may be limited. So it is really up to the artist to try to learn how to tap into those markets on our own.

QUINN: YouTube.

Ivo and Robin.

Ivo and Robin.

MIJAC: Yes. And that can be done. People are in their rooms with very crude video and audio. They will do a cover of a song, and if they do it well or if they have a particular look, they will be seen by multitudes. YouTube has profoundly changed the recording industry and I think technology has made it easier to do this, however it has also made it easier to potentially infringe on IP.

MIJAC: Yes. People have always covered other people’s music to sort of break in to the realm.   But back in the day, when they would release an album or a CD, they were crediting the original author. Nowadays a person can cover a song in their garage or their bedroom, release and monetize it on YouTube, get maybe 10 million hits and make money. Maybe not much money, but if you were the artist that created the song they covered and made money from you, how might you feel if they made $10, or $1000 or $10000?

QUINN: Even when they do, it is very little. The rate has not changed for decades. And I know that there is some legislation pending in Congress called the Songwriter Equity Act that will try and bring some more equity monetization because it is pretty out of proportion. There are some people who are trying to fight on behalf of the creator, which is good because without having creators being able to make money doing it you are going to get less creation.

MIJAC: That is true, and less art. I understand the frustration because technology moves much faster than what we as humans can comprehend and process. I think it takes us time to develop wisdom and to think about how things will play out and to form ethical opinions that cannot be done in nanoseconds. But that is the pace of technology. I feel like technology is many steps ahead of us and we are just trying to hang on, to figure things out too quickly and to create laws that are filled with loopholes. We, as humans, need a slower pace to think through things. I don’t know if that’s realistic or not but that’s how I really feel.

QUINN: Time to take a step back.

MIJAC: Yes. To really reflect on it and to see. And I think we can make the best informed decisions and judgements when we have more time. But when technology permeates much of our existence, speeding so fast as compared to the human intellect, and there are new products on the market every three to six months that are newer, faster, better, and stronger, it is rushing us into decisions that are not necessarily wise.

QUINN: I do not think people stop and think about what it is that they are doing. There is just this belief, whether it is with patents or with music, that this stuff is just going to exist. It’s always existed. It will just exist in the future. And to some extent it will, but if you really like an artist you would prefer them to be able to spend their time during the day creating. If artists, or inventors, can spend their days creating they will create more than if they have to have a day job in order to pay the bills. Unfortunately, many artists, inventors and content creators can only spend whatever extra time they have because they’re not able to make as much as they could because so many people are stealing.

MIJAC: Yes, I think the whole model is changing. I think the whole industry is changing because of technology. It has to because it is all interrelated. 30 or 40 years ago we were in one format, the album and then we went to compact disc. There were bumps in the road and things that were changed. But because the speed of technology is just so fast, the rate of change is much faster now. And, yes, I just think we need more time to sort out the details and really think and feel about these things and how it will really impact. Technology is a duel edged sword. For the well-established performers and the industry people, I think that they are probably feeling more of the negative impact from the loss of sales, pirating, and file sharing. All these things. And for emerging artists like my band Amalgamation, I feel that we have positively benefited from technology in many ways as it has opened up many avenues for us to get exposure in different markets. I think you have to look at how technology has impacted musicianswith respect to their economic classes. Some people are going to feel the negative impact of technology much more than others. Some will benefit greatly from technological advances. It is all relative. But the whole industry is changing and it’s hard to tell exactly where it technology is going to take us.

QUINN: If you have time for one more question what I would like to ask you is about creation. Where does it come from? Do you sit down and think about it? I know you just went on a camping trip. Did you go there to create, to get away from it all? What is your creation process?

MIJAC: Well, you need to have a clear head and a clear mind to be able to receive things. Sometimes the creation process is spur of the moment. It just happens. It is like a bolt from the cosmic blue, from the grand consciousness, a Higher Power or energy source. Sometimes I could just be sitting down or walking and a thought or phrase just comes into my mind. With time I have come to realize it is the subtle nature, the subtle things in life that are huge. They tell me what I should be concerned about and what may be to come. For me, there are artistic cues and if I will hear something, that might spark a chord structure or a melody, and the song idea may blossom from there.

And then there are times when you just need to sit down with your instrument and work with it. I try to just go with the flow and to leave my judgmental brain behind even though I may be performing mistakes or I may do something that makes no sense. But that is the unique thing about music and about art in general. With any type of art, it is their personal voice of a story that they want to share from their life with other people. All art is is sharing stories whether you are a sculptor, a painter, or a musician. We are all here in the arts to share stories about life and to relate to one another. It is a way to add meaning to life and to help us reflect about life and our place living in it. We ask ourselves, “What kind of life do I want to live?” And it can be inspirational. That is the way I view art and sometimes it gets created that way. And at other times, it is a lot of hard work and sweat, taking an idea, going to the studio, and hashing it out into a song that we can share with the world. And the creation process involves compromise between band members, because often musicians have various feelings and insights about the creation process.

QUINN: That has killed more than one band over time. Creative differences, right?

MIJAC: Yes it can and has. However it has also brought creative people together and nurtured musical relationships. The whole process of making music is a collaborative effort. You get a team of people working together and it is really all about give and take, about respect of one another and about being able to create an environment where people’s ideas can flourish. So yes, creating music is sometimes challenging and difficult. But most times it is very gratifying and comes from a positive source. Kind of like situations in life itself…I feel blessed to be able to create and share music with my fiancé and fellow bandmates, so that it may have a beneficial impact on the lives of others.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 1 Comment comments.

  1. Benny May 20, 2015 5:27 am

    “I think there are a lot of broken things in the music business…”
    I grew up in a period when we paid money to buy records and CDs.
    My children are growing up in a generation who take it for granted that recorded music, like most of the information on the internet, is not something you have to pay money for.
    It appears that the music industry never really adapted to the reality that selling music is no longer merely shifting plastc circles over the retail counter.