Don’t worry, I’m not going to do defend the practice, but I had to call out this article by Daniel Gross for Slate. In it, Gross argues that while Sony’s acts do break the law, these “payola laws seem outmoded and backward-looking.”

Fine. I’m happy to listen to an argument that seems so at odds with typical thinking on the matter, but you’re going to have to have a tight case to convince me on this one. Gross’s article is sneaky, in that it’s thoughtful, well-written, and full of logic. It just happens that he’s wrong.

Let’s start with his claim that “Spitzer was shocked, shocked, to discover that commercial radio … has programmers who act for reasons other than artistic worthiness.” It’s a rhetorical trick designed to add an element of ludicrousness to the prosecution’s case. Spitzer wasn’t “shocked” at all — if that was the case, he wouldn’t have been digging.

Gross goes on to argue that “With declining record sales, the rise of Internet and satellite radio, and the advent of iTunes, iPods, and podcasting, radio stations and record companies have become an object of pity more than fear.” Really? Where I live, Clear Channel is a monster out to chew up independent production, downloaders buy music, and record sales still fluctuate. Radio and record companies might be stumbling, but it’s because they’re having trouble shifting to new market conditions, but because they’re the pitiable entities. And “Michael Powell” is a good way to swear in my family.

As he continues, he sounds as if he’s lost all touch with the regular old world. Sure, intense music fans scour webzines and message boards for new acts and original tunes, but the average person driving to work isn’t yet pulling in XM radio. Top 40 is still Top 40.

Gross argues that with all the alternative outlets available today, artists don’t need radio play to succeed. For someone looking to gain critical acclaim and a cult following, that’s true; but it’s still not usually the case for someone looking to make even enough money to pay for their next album (check to see how many underground bands have day jobs).

Comparing payola-based radio-play to product placement in movies is inaccurate for several reasons. First, it assumes that theatrical placement is ethical and good. I’d argue that, even though people know that happens, it’s still an insidious form of corporate control. Seeing your film hero hoisting a Pepsi several times is going to make you thirsty, and you’re not going to choose Coke. The second flaw, as my example suggests, is that movie placement is usually an aid between two large equals, rather than a platinum act trumping a new band hoping to sell 5000 records. He also misses the fact that music gets into our heads more easily and insistently than a simple movie visual. It’s like the “Co-stan-za” theory of dating. If you hear it enough, you *will* want it around.

Gross’s suggestion: change the station. Fine, except that every station is playing the same songs. It’s not escapable, especially considering the national ownership of many local stations. If you live in or near a college town, your odds go up a little, but for the average American, you don’t have that many radio options, and none of them are diverse.

Finally: yes, it stifles creativity. Talk to someone at a small label or in a struggling band. I’ll admit that I’m unable to draw a pure link from more money = more time for art = more creativity, or something like that. It’s not that simple, but there is a correlation between starving and deciding to take a “real job”.

Defending payola may seem like a constructive way to explore the music industry, but it’s short-sighted and, what is worse, sounds like you can do it best if you’re not much of a music fan.