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Bar News - April 16, 2014

Opinion: SXSW: Lady Gaga, Doritos, and a Failure of Law


The annual South by Southwest festival in Austin, Texas, provides prime space for independent musicians to showcase their talents. Every year’s version is bigger than the one before, and it’s now a nationwide phenomenon. Musicians and fans flock there in droves to listen to the latest thing. Bands this past March included Bipolar Sunshine, The Strypes, and Barcelona. No, I’ve never heard of them either. That’s what makes it fun (by which I mean rock-and-roll fun, as defined by Bob Dylan in 1965, when he urged his back-up band, The Hawks, to “play it ----ing loud!”).

This past year’s festival was marked by a disturbing new trend in the world of indy music, though: the rise of corporate sponsorship. There were signs and logos on every pavilion. People feared the founders were selling out. And the crowning insult of all: Lady Gaga’s showcase set was presented by Dorito’s.

More definitions for our paper’s readers: Lady Gaga is a world-famous performing artist known for pushing the boundaries of good taste. Following some serious footsteps (Oscar Wilde, Allen Ginsburg, Tiny Tim, etc.), she seems pretty good at it. And Dorito’s are a foodstuff favored by adolescents. Neon orange, cheese-flavored triangles, they are notorious in the world of industrial chemistry for having fat and salt levels precisely engineered to make non-hungry teenagers crave more of them. The only thing vaguely transgressive or artistic about a Dorito is the name, which looks to me like the past participle of some non-existent latinate verb.

Lady Gaga herself, anyway, seemed torn by her association with Dorito’s. She defended it at a press conference, explaining to her followers that corporate sponsorships were necessary today, because record labels lack money for promotion; but at the concert itself, she slathered herself with barbecue sauce (something Oscar Wilde never got around to) and announced she had no interest in “playing by the [Bob Dylan] rules.” Her audience cheered her on. Presumably with orange-dusted fingertips.

And she wasn’t kidding, either. Her concert really did have rules. They had been laid down by Dorito’s lawyers, and they included, inter alia, a requirement that journalists wishing to cover this event needed to pose with a bag of chips first and allow the resulting photographs to be used for marketing purposes. Hardly the stuff of classic rebellion; hence her discomfort with them. But as she herself was clearly aware, those lawyers were only there because other lawyers were not: the lawyers for the record labels who used to fund these sorts of appearances. Where had those other lawyers gone?

In short, those record labels no longer matter in Austin, because the commodity they used to sell – music – is now available for free on the internet. You can’t make a living by selling CD’s anymore. You need to sell something else. Like snacks.

Does it make any difference? On one level, after all, this merely represents a changing of the guard. So now Lady Gaga has to work with Dorito’s. In years past, she would have had to work with some other equally profit-oriented conglomerate: one that made music recordings. And a suit is a suit is a suit.

But on another level, what is happening now is nothing short of astonishing. Because this new era represents the overnight collapse of a century-old business model which allowed artists to write songs, have those works recorded, have those recordings protected by law, and profit accordingly from their own popularity. With music found in the cloud now, such recordings lack value, and performers must resort to selling their own physical presence instead. They are still figuring out how to do that. And their lawyers have not been much help.

By its nature, the law is a conservative profession. We get paid to apply rules to human behavior, and those rules usually have a lengthy gestation process. That’s important. The longer a given set of laws has been around, the more comfortable people are with their results. And when things stay the same for long periods of time, lawyers adopt an outsized role in society, too. Our ability to predict outcomes based on known factors is useful to others. Add years of experience to that mix, and lawyers even begin to seem wise. They give good advice. They can predict success or failure.

When change occurs rapidly, though, lawyers become much less important. We sit on the sidelines and wait for the dust to settle.

And if that final dust happens to be orange, we might just be the harbingers of some very bad news.

Lady Gaga’s connection to Dorito’s took place with lightning speed. She herself seemed to feel bad about it. And what lawyer can she turn to, to negotiate the terms of her next appearance? Who can advise her, how best to maintain her artistic integrity? When all is said and done, generations of artists before her could find only one guaranty of that: obscurity itself. By the time we lawyers return to this field, tomorrow’s stars might not mimic Mick Jagger or Frank Sinatra anymore. They might look more like the nameless balladeers of the far distant past.

Michael Davidow is a staff attorney at the NH Public Defender office in Nashua and the author of Split Thirty, a novel about politics and advertising. The author’s opinions are his own and do not represent the opinions of his employer, or the NH Bar Association.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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