Many years ago I did some freelance writing. Some of it was painfully dull (filler articles for free magazines), some of it bizarre and seedy (your suspicions about readers’ letters in porn mags are well-founded: they are sometimes written by paid writers), but the biggest lesson I got from it was that it’s hard to make a decent living with that as your main gig.

When you need to rely on artistic output to pay the rent, it doesn’t take you long to realise that unless you’re going to get picked up by a large publisher or music label, you’re going to need another job.

Recently I’ve been thinking about this problem and the related crisis in the music and film industries in some detail. At its simplest, the problem is this:

People want to consume entertainment, but they do not wish to pay for it.

Artists do not have the right to be paid whatever they feel they are worth, they must compete in a market and persuade people to hand over cash just like any other industry. Punitive measures such as taxing consumer products in order to force payment of artists is in my opinion pure idiocy. We need to think instead about encouraging people to pay for the entertainment they love. I think that requires a few things:

1. Consumers should not have to fork out more money than they feel comfortable spending
2. More of that money needs to land in the artist’s pockets rather than distributor’s, so that artists on the ‘long tail’ can make a living off a smaller fan base
3. Artists need to find new ways to grow and engage with their fan base

Thankfully, the Internet makes all of these much more practicable than ever before.

One solution to the first problem has recently been played out with mixed results by Radiohead, but wouldn’t it be interesting if we had some sort of “tip jar” system in place for all artists? You download something via P2P, like it, and you can make a donation - of whatever size you want - to the creator. Well somebody is working on that but the question is whether it will ever work.

One artist working with a non-digital medium (paintings) has given this a whirl and it seems to be working. Ali Spagnola will - when it’s your turn - paint a picture just for you based on a theme you suggest and then send it you free of charge anywhere in the World. It’s not a con. I know this, because I’m currently staring at this picture painted for me sometime last year. Payment is completely voluntary. I’m ashamed to admit I still haven’t got around to throwing some money into the tip jar, but I’ll rectify that mistake this week. The painting has grown on me. I would miss it if I lost it. Ali deserves to be able to eat for giving it to me.

Does Ali make money? Perhaps. Do Radiohead? Definitely. So, it’s a model with potential.

As for the distribution problem, well I think it’s clear now that the current relationship with artists and the distribution chain is going to die within a matter of years. A band or a writer can now distribute directly via their website, and even authors can publish books cost-effectively without the need to get men in suits and lawyers involved. There is an issue of how to manage all this and as Kevin Kelly discovered when researching this, being your own tour manager, promoter, lawyer and roadie can be a gruelling and unprofitable exercise.

And then we get to audience engagement. The Internet has blown that apart as well - artists can now have a direct conversation with their fan base via blogs, social networking websites and video sites. It doesn’t scale (how do you stay personal with fifty million fans in 150 countries?), but that would be as they say “a nice problem to have”. Most artists don’t know how to do this well - they’re musicians, writers and film directors, not PR specialists - which suggests there will exist a niche industry helping bands do this very cost effectively within a few years. The current promotion and PR industries are not a good fit for where the industry is heading, they need to change.

As for growing your fan base, I agree with Robert Rich’s words in his message to Kevin Kelly:

Companies can use demographic models and track people’s search patterns to pander to their initial tastes and to strengthen those tastes, rather than broaden their horizons. This problem doesn’t lie within the technology of the internet, but within the realities of capitalism and human psychology.

There is a problem here with collaborative filtering - it’s locking us into tastes, not broadening them. However, it can also be the most powerful tool an artist can have working for them.

Four months ago I had never heard of The Courteeners and yet last Saturday was in the crowd at their sell-out gig at Manchester Academy having paid several times face value for the tickets off eBay. That only happened because last.fm algorithmically said “you should listen to these guys, because you like James”. So far The Courteeners and their label, promoters and distributors have directly received at least £30 off me they would never have got without that technology helping them. I expect they will get hundreds off me over the next decade providing they keep doing something I like.

However, I’d like to share that music. I’d like to say to my friends “look, listen to this, you’ll like it” and give them a copy. DRM and the law prevents me. It is working against them, because I know for a fact I could recruit at least another half dozen fans for their next tour and album release. They are working against me by insisting I do not put their album up on a website for anybody to download and listen to. I will happily work as their unpaid promoter and recruit whoever I can into giving them money, but that little circled “C” prevents me. They could have licensed it under a creative commons license, but they chose not to.

This one act alone has probably cost them a couple of thousand pounds in future lost revenue just through me. Scale it up to the 2,000 people who were at that gig the other night, they’re probably losing millions. Not millions in five years when they try and break America: millions of pounds right now, this week.

So, we need to find more new ways to openly and cheaply distribute art and leverage a fan base so as to be able to make a decent living - perhaps even an indecent living - for artists and fans alike. I have more ideas on how to make that happen, but I will share those with you tomorrow.

Let’s imagine you are a toymaker. No, not some carpenter in a little workshop deep in Old Europe - a multinational that commissions studies on “pester-power” and are only slightly embarrassed by the fact some of your toys contain lead paint.

You have a trademark over a game, that quite frankly went out of fashion in the 1980s. Nobody wants to play it any more because it’s seen as dull, boring and just a little bit “fuddy”.

Then, one day, you notice sales are starting to rise. People are buying the game again. You can’t understand why, so you commission another report (hey, that’s your job) to find out where this new interest is coming from. A few months later, you have an answer - somebody has created an electronic copy of your game and made it available as an application in a social networking site. People are so crazy for it as a result, your brand is now gaining value and you’re going to have to think about how to cater for this new generation of players.

What do you do?

Well, if you’re Mattel or Hasbro and your games is Scrabble and the online app is Scrabulous on Facebook, you naturally send out cease & desist letters and hack off your new fan base.

The idiocy of this decision is monumental. Yes, you need to protect your trademark. Yes, you need to show that you’ve acted to protect it otherwise you can end up losing it anyway. Do they really think this is the way forward though?

I have to admit I’m a tad biased here. Here’s my Scrabulous stats screen:

As you can see, I’m one of those people who plays daily, and plays a lot. I’d hate to see it go. But that’s not why I’m writing about it here.

There is something new about the economy that is spreading around us. In the past ideas, trademarks, patents all were treated as if they had some inherent power that should not be discussed. People say they won’t discuss things because they need to be secret, that they fear the legal consequences. People don’t give up ideas until they’re “protected”. People guard words they invented as if they alone are the secret sauce to great riches.

Here’s the thing: that’s all bullshit now.

You want people to talk about your product, your ideas. You want them to talk, talk, talk, talk all day long. You want people to stand up and shout from the rooftops about your products, your patents, your trademarks. You want them to share their ideas of how your products could be made better. When they start doing that, especially when other people are providing them the tools to do it, you should think very carefully about whether you want to tell them to shut up.

We sometimes take for granted the knowledge we have of how the Internet works. We know that an image in a search result might be linked to a site that has nothing to do with the image. We know that just because a reader of a blog comments on a post and links to a picture, it doesn’t mean the blog owner has endorsed or in any way taken ‘control’ of that picture.

We know this.

Some people though, aren’t quite as smart as us. They think that you have more control over how Google sees you than you do. They think that if you link to a picture you are ‘trying to take it over’. They don’t understand hypertext, they don’t understand indexing algorithms and they certainly don’t understand how this all applies in terms of copyright. Don’t believe me?

TechCrunch is currently dealing with perhaps the most technically inept man on Earth representing a photographer in an argument over online copyright and image distribution.

The problem is that he has a little knowledge - pictures can drive traffic, and that drives revenue - but not enough knowledge to understand what TechCrunch’s role is in this instance.

Even worse, he’s decided to act in a way I would consider unethical by phoning advertisers and threatening to name them in a lawsuit explaining he “just wanted to let [them] know”, in that I’m-doing-you-a-favour-don’t-look-at-me-like-I’m-a-leech kind of way.

This makes me come to the following conclusions:

1. If I ever need to hire a photographer, I’m never going to hire Beth Boldt as she clearly hires idiots to represent her legally (although he doesn’t appear to be a lawyer), and I really don’t want to deal with idiots working on her behalf
2. If you’re ever going to threaten to sue somebody, maybe you shouldn’t threaten Mike Arrington who is, you know, a lawyer, and knows what he’s doing… (top tip Mike learned at law school: use spell check before hitting ‘send’).
3. All of us have a responsibility to make sure the people acting on our behalf - personally, or within our companies - understand the issues as they really are.

If you’re working in a corporate environment in the UK, you should make sure at least some of your directors or somebody over at legal checks out Out-Law.com once in a while, and if you’re freelancing or a SME, its RSS feed should be part of your morning coffee ritual.