Phish will reunite after a four-year “hiatus” this March in Hampton, Virginia to play a three-night run of concerts that managed to sell out in “some fraction of a minute.” How does a band that never had a platinum album create such a fervor by announcing that they would be returning to the stage? The answer is that they earned the devotion of their fan base by playing a grueling tour schedule over the twenty-plus years of their existence and by remaining creative with their improvisational style of music (to the point where they never once played the same set list twice over the thousands of shows that they played). Moreover, the band believed that the purpose of playing live was to make the experience as enjoyable as possible for the audience. There are numerous examples of how they demonstrated their appreciation for their fans, such as the tradition that continued for several years during the mid 90’s of allowing fans to vote on another band’s album that they would cover in its entirety on Halloween each year (e.g., The Beatles’ White Album, The Who’s Quadrophenia, etc.) or their staging of multi-day festivals that were specifically tailored to the fans.

Their innovative take on playing live helped to create a demand for tickets to their shows (wherever they may be, as demonstrated by the tens of thousands people that went to Coventry, Vermont to witness their farewell concert in 2004) and for recordings of their performances. As such, early on in their musical career, Phish had to make a very important choice: they could either enforce their rights (as secured by § 106 of the Copyright Act) to exclusive reproduction and distribution of their live performances or they could give back to the fans who supported them each and every night. Ultimately, they opted for the latter by instituting a policy of allowing bootleggers (or “tapers”) to use microphones to record their shows. These recordings could then be traded for other recordings, but they could not be reproduced or distributed for commercial purposes. Because they freely made recordings of their shows available, more people were exposed to the best aspect of their music: their live performances. However, they were not entirely altruistic in their distribution of their live performances. In 2001 they released the LivePhish CD series, a set of soundboard (i.e., high quality) recordings of twenty complete concerts. They also opened the website, which offered even more shows for sale to the public. The catalog of shows offered through the website has grown over the years as the band has periodically released additional recordings of their favorite concerts.

Phish became one of the highest grossing tour bands of all time by employing what Lawrence Lessig refers to as a “hybrid economy”: they used a sharing economy (i.e., the trading of tapes of their performances) to leverage value from a commercial economy (i.e., the sale of tickets to their shows and previous recordings of their concerts). Vigorous enforcement of their reproduction and distribution rights would have never permitted them to build the following that they ultimately amassed. Instead, their commercial success was a direct byproduct of their decision to give something of value away for free.

While they undoubtedly could have earned some short-term profits by disallowing any recordings of their shows, these returns would have been scanty when compared with the long-term dividends that they received from their generosity, both in the increase in their fan base and the sale of recordings of their shows. Although copyright laws are intended to incentivize creative expression, with Phish, this was simply not necessary as their decision to disregard conventional copyright wisdom and allow taping created a legion of fans willing to follow them to the ends of the Earth to watch them play. Thus, they were offered all the incentive that they needed and that allowed them to do what they loved most: create music for a live audience.

Mike Mahone

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