Category: I Respect Music

@KenDKM of @DropkickMurphys: Ken Casey: Old School Radio Needs a New Model [the American Music Fairness Act]

Ken Casey
Among the supporters of the American Music Fairness Act (AMFA) is bassist Ken Casey, member of Local 9-535 (Boston, MA) and longtime frontman of the Celtic punk band the Dropkick Murphys.  Photo: Ken Susi

On June 24 of last year, a group of legislators and musicians gathered on Capitol Hill to introduce the American Music Fairness Act (AMFA). The AFM and the MusicFIRST Coalition worked closely with members of Congress to help craft the AMFA. If adopted, the bipartisan bill will establish a performance right for sound recordings, ensuring that all of the performers, musicians, and others involved in the creation of a recording will receive fair compensation for its broadcast on AM/FM radio. Among the supporters was bassist Ken Casey, member of Local 9-535 (Boston, MA) and longtime frontman of the Celtic punk band the Dropkick Murphys. It was hardly the first time Casey has lent his voice to a cause.

Together for more than 25 years, the Dropkick Murphys originated in 1996 when Casey, then a bartender at Symphony Hall in Boston, accepted a bet from a co-worker. He’d never played an instrument before, but he vowed he could win the bet by starting a band, and soon they were rehearsing in the basement of a nearby barbershop.

Despite the hundreds of billions of dollars large media corporations like iHeartRadio make from advertisers, they never share a penny of that with the musicians who create the music. Musicians deserve compensation for work—just like everyone else. Sign the American Music Fairness Act petition, visit https://bit.ly/AMFA-fairpay

Read the post on the International Musician

We’re All In It Together: Independents File “Friend of the Court” Brief in Google v. Oracle

 

Helienne Lindvall of the Ivors Academy, David Lowery of Cracker and Camper Van Beethoven, Blake Morgan of #irespectmusic and the Songwriters Guild of America joined in a friend of the court brief supporting Oracle in Google’s appeal of its losing argument in a copyright case involving Google’s taking of Oracle’s Java code without a license.  Oracle won the case on two different occasions at the Federal Circuit, but Google appealed to the Supreme Court which of course is their right.

I got to co-write the brief as co-counsel with my friend Charles Sanders, long time counsel for SGA.  You can read it here.

SCOTUS Brief Cover Page

Oracle had nice things to say about our brief:

There will also be numerous Amicus Briefs filed shortly on the side of strong copyright protection for expressive and creative works including computer software. One brief, filed by the Songwriters Guild will state: “There are untold riches in running the Internet of other people’s things.” Only a songwriter could so eloquently capture the essence of this case, and Google’s business practices. We wish we would have thought of that line ourselves, but we didn’t, so we repeat it here (with credit and permission).

One of the accomplishments in our brief was that we were able to bring the words of artists and songwriters like Zoë Keating, Kerry Muzzey and the indefatigable artist advocate and five-time Grammy winner Maria Schneider before the Court.  All of them have written eloquently of the reality of being an independent up against the biggest corporations in the world.  We were happy to put their voices before the highest court in an important copyright case.

Stay tuned.  Google’s reply brief is coming soon and oral argument is scheduled for March 24.

What’s Going on with @taylorswift13 and Big Machine–with Update

You’ve probably seen reports of Taylor Swift’s allegation that Big Machine or its assignees are blocking her from performing what appears to be a medley of her old hits (from the Big Machine catalog famously sold to an entity associated with manager Scooter Braun).

According to Rolling Stone:

The spat between Taylor Swift, her former label boss Scott Borchetta, and music mogul Scooter Braun has devolved into a sturm-und-drang public saga. Months after Swift panned Braun’s $300-million takeover of Borchetta’s Big Machine Label Group, the singer is saying that the two executives are preventing her from performing her older hits at the American Music Awards — but the validity of both the claim and the alleged action are murky.

Actually maybe not that murky.

Here’s a pretty good artist friendly rerecording restriction:

After the Term, Artist shall not, prior to the later of the following dates, perform for any person, firm, or corporation other than us, for the purpose of making Phonograph Records or Master Recordings, any Selection which was recorded hereunder or under any other agreement between you or your affiliates and us or our affiliates for which we or our affiliates paid an advance against royalties hereunder or under such other agreement (whether or not in respect to Recording Costs) or which is released by us for commercial sale to the general public in the United States, Canada or the United Kingdom no later than six (6) months after the expiration of the Term; provided that if any such Selection was recorded in a Master hereunder and we are otherwise entitled to release such Master in Phonograph Record form, prior to performing such Selection for any third party for the purpose of making Phonograph Records, you shall notify us of our failure to have so released such Master and we shall have six (6) months after the date of such notice to so release such Master, upon which release the Selection embodied in that Master shall be subject to the provisions of this subparagraph and; further provided that if we fail to so release such Master within that six (6) month period, you shall have the right to perform that Selection for any such third party irrespective of the provisions of this subparagraph:  (i) the date five (5) years subsequent to the last date on which a Master Recording embodying that Selection was delivered to us hereunder (but a Master or arrangement thereof included on a “Greatest Hits” or “Best of” LP shall be deemed to have been last recorded when such Master was originally recorded hereunder or under any Prior Agreement; or (ii) the date two (2) years subsequent to the date on which the Term hereof ended.

But here’s another clause relating to TV performances that needs to be carved out from the general rerecording restriction:

If Artist intends to render musical performances on network, cable or other form of television, then Artist shall notify us of Artist’s desire and intention to commence negotiations with respect to any such performance and Label or Label’s affiliate shall have the right, at Label’s election, at any time within five (5) business days after Label’s receipt of that notice from you, to cause Artist (or any entity furnishing Artist services) immediately to enter into good faith negotiations with Label, or our affiliate, concerning the terms and conditions of those performances.  If for any reason Label or Label’s affiliate and Artist (or that entity furnishing Artist services) are unable to agree on the terms and conditions pursuant to which Artist shall render those performances within a twenty (20) day period, then Artist (or that entity furnishing Artist services) shall have the right to enter into negotiations for those performances with any third party.  The foregoing provisions of this subparagraph shall apply to programs primarily or substantially featuring Artist as opposed to programs wherein Artist merely renders a so‑called “guest” performance. Nothing set forth in this Contract shall entitle any third party to exploit Audio-Visual Records embodying the musical performances of Artist.

That TV restriction probably covers Taylor Swift’s AMA performance if it applies after the term expires like a re-recording restriction.  Even if it doesn’t, there’s that last sentence.  “Audio Visual Records” are usually defined to include the kinds of activities that television shows typically want to engage in to exploit and promote their shows, even if there is no permanent download or stored copy sold for streaming.

So if the AMAs are asking for those broad video rights (for example Facebook live streaming, cached streaming, YouTube, etc.), it’s entirely possible that Big Machine has an absolute blocking right on those exploitation channels which would have nothing to do with the re-recording restriction specifically (although the re-record prohibition term might also be implicated).

Something says to me that Taylor Swift is building an evidentiary record for one of the great artist rights lawsuits of all time in the future, but maybe not.

UPDATE:  The Hollywood Reporter has a press release from Taylor Swift’s label that pretty much confirms the interpretation of her re-record restriction that I suspected in this post:

After Taylor Swift claimed last week that Big Machine founder Scott Borchetta and Scooter Braun were preventing her from performing her past hits during the 2019 American Music Awards, Swift’s former record label released a statement Monday that said it had “agreed to grant all licenses of their artists’ performances” on various platforms.

“The Big Machine Label Group informed Dick Clark Productions today that they have agreed to grant all licenses of their artists’ performances to stream post show and for re-broadcast on mutually approved platforms,” the statement reads. “It should be noted that recording artists do not need label approval for live performances on television of any other live media. Record label approval is only needed for contracted artists’ audio and visual recordings and in determining how those works are distributed.”

So a drafting tip–this restriction on televised performances should, at best, only apply during the term of the artist’s exclusive recording agreement.  Those three little words will save a bunch of agita after the term.  If you can’t get that, then another way to get at it is to say the restriction only applies if the artist is recording more than a fixed number of songs that were recorded during the term say three or four.  This is the kind of thing you can get when you are negotiating the artist’s deal going in and that you’ll never get going out.

Update on Increased Streaming Mechanical Rates and Frozen Physical/Download Rates

CRB Decision

For more information read here.

The CRJs have not issued a public version of their ruling as yet, but this notice gives the headline rates.

It appears that physical and permanent download mechanicals will continue to be frozen at no more than 9.1 cents minimum statutory.

This appears to mean that the mechanical for “physical phonorecords” and permanent downloads has been frozen since 2009 and will remain frozen until 2022.  “Physical phonorecords” are CDs and vinyl and permanent downloads is iTunes.  These configurations are not nothing and are still about $800 million industry wide in the US alone for the first half of 2017 alone.  And while its declining, that’s still a lot of songs.

 

Spotify’s “Fake Artist” Issue and Other Problems at Scale

Spotify just can’t seem to catch a break in the artist community.  A story broke on Vulture evidently based on a Music Business Worldwide post alleging (and I’m paraphrasing) that (1) Spotify commissions artists to cover hits of the day and (2) there’s a lot of sketchy material on Spotify that trades on confusing misspellings, “tributes” and other ways of tricking users into listening to at least 30 seconds of a recording.  Which means that Spotify isn’t that different than the rest of the Internet.  (Thank you DARPA, the people who gave you the Internet.  And Agent Orange.  The real one.)

Spotify of course has issued a denial that I find to be Nixonian in its parsing.  Let’s not go crazy on this, but here’s the first part, according to Billboard:

“We do not and have never created ‘fake’ artists and put them on Spotify playlists. Categorically untrue, full stop,” a Spotify spokesperson wrote in an email.

Nobody said Spotify “creates” “‘fake artists,'” and the accusation was that the fake artists were on the service AND on some playlists, not just playlists.  The allegation is that Spotify commissions recordings.

“We pay royalties — sound and publishing — for all tracks on Spotify, and for everything we playlist. [If Spotify commissioned the fake tracks, they would also “pay royalties”.]  We do not own rights, we’re not a label, all our music is licensed from rightsholders and we pay them — we don’t pay ourselves.”

Notice the switch to “rights holders” which would include either publishing or sound recordings.  If Spotify commissioned fake artists they would not need to “own rights” and they could easily have “licensed” the fake artists recordings.  Cover songs would require an…ahem…NOI for the compulsory license.  And the commission payment could go to the artist as a buyout so Spotify would “pay them”.  If the object was to increase traffic for their ad supported service, commissioning recordings would both increase traffic AND reduce the prorata share of advertising revenue by making the denominator larger for everyone with a  revenue share during that accounting period.  I don’t want to go too far down that rabbit hole, but there are some odd loose ends.

Leave the holes in Spotify’s denial to the side.  The core problem identified by the Vulture post is the same for Spotify as it is for Google, YouTube, Facebook, all the other Internet companies that require “scale” to succeed, and which are, one way or another, hell bent on being monopolists.  The second part of Spotify’s denial in Billboard could apply to this lack of monitoring:

“As we grow there will always be people who try to game the system. We have a team in place to constantly monitor the service to flag any activity that could be seen as fraudulent or misleading to our users.”

Maybe that “team” could have a role in “monitoring the service” for tracks before the recordings get on the service rather than after.  Noah built the Ark before the rain.

It must be said that it sounds a bit implausible that Spotify would commission this type of recording to avoid paying artist royalties on the fake tracks.  Such an affirmative act would require a commercially tortured logic because the royalty offset on those specific tracks would be so tiny that the cost of the commissioned recordings would have to be very, very low.  One guy with Garageband in Mom’s basement kind of low.  How much the prorata revenue share would be reduced is hard to know from the outside.

But even if Spotify doesn’t hire studio musicians to perform “fake hits”, it appears that they are allowing a lot of sketchy recordings onto the service.  One might ask how those recordings get there in the first place.  I would bet that the explanation is pretty much that nobody bothers to check before the recordings are posted (or “ingested” in the vernacular, if you can stand that word).

So while there is a major difference in degree of harm, there isn’t a great deal of difference between what seems to be happening on Spotify with sketchy recordings and the links to illegal materials that the Canadian Supreme Court just blocked on Google Search, promoting the sale of illegal drugs for which Google paid a $500,000,000 fine and narrowly avoided prison, ISIS recruiting for which Google lost a chunk of market cap (at least for a while), human trafficking on Craig’s List and fake news on Facebook.  Each of these services operate at scale and they seem to have the same problem:  No one is minding the store and there are no or poorly enforced standards and practices that are only enforced after the harm has occurred.

The other trait that all these companies have in common to one degree or another is that they are all at least dominant if not monopolies in their markets.

Remember–on May 12, 2014, Spotify’s director of economics Will Page gave a presentation at the Music Biz Conference in Nashville.  As reported by Billboard, Will Page gave the audience a good deal of evidence of Spotify’s domination of the online music market:

Spotify claims to have represented one out of every ten dollars record labels earned in the first quarter….Page’s claim shows the speed at which subscription services are gaining share of the U.S. market. According to IFPI data, all subscription services accounted for 10.2 percent of U.S. recorded music revenue in 2014. If Spotify had a 10-percent share in the first quarter, it’s safe to say the overall subscription share is well above the 10.2 percent registered last year.

Much of Page’s presentation seemed aimed at Spotify skeptics in the audience. While explaining how streaming “is no longer an outlier in the business,” Page noted Spotify has launched in 32 of the 37 countries where streaming is the primary digital source of revenue. Page also pointed out that Spotify is half of the $1.5 billion global subscription streaming market. In the U.S. market, Spotify made up approximately 90 percent of last year’s growth in subscription revenue, according to Page.

These numbers suggest that while Spotify may have a significant share of overall U.S. recorded music revenue, Spotify is clearly dominant if not a monopoly in the global subscription market with its now 100 million plus users and probably is at least dominant if not a monopoly in the U.S. music subscription market.

So how does Apple address these problems?  If you consult the iTunes Style Guide, you’ll see that iTunes expressly prohibits the use of search terms or keywords in track title metadata (like “Rock Pop Indie Rock”) or an artist name (like “Aerosmith Draw the Line).  Audio files have to match track titles on each album delivered.  “All track titles performed by the same artist on an album must be unique, except for different versions of the same track that are differentiated by Parental Advisory tags.“  And most importantly, perhaps, “the name of the original artist must not be displayed in any artist field on the track level or the album level.”  Why these rules?  One reason might be that Tunecore has encouraged their users for years to use covers as a way of getting noticed in searches on music services (with suitable admonishments to not “trick” fans).

Let’s face it–there’s only one way to keep your service clean.  Don’t let the bad stuff on in the first place.  You may think that it should be self evident that allowing sketchy recordings, ISIS videos or human trafficking on your service is a bad thing.  You may think that it should be self evident that allowing someone to change a letter in an artist’s name to trade on their reputation is a bad thing–not that different from typo squatting.  You may think that it is self evident that promoting the sale of illegal drugs is a bad thing.  And you may think that anyone who wants to engage in commerce with the legitimate commercial community, much less the artist community, wouldn’t allow these travesties into their business.

But you would be wrong.  Probably because you don’t worship at the alter of the great god Scale.

 

 

 

Will Digital Aggregators Lead the Industry on Transparency with Spotify and Others?

The Music Managers Forum UK have criticized the “secrecy” arounds Spotify’s deals with major labels.  According to Complete Music Update:

The UK’s Music Managers Forum yesterday welcomed the news that Spotify had reached a new deal with Universal Music. However, the trade body criticised the continued secrecy that surrounds the deals made between the major record companies and the streaming services. This secrecy means that artists signed to or distributed by those labels are not allowed to know the specifics of how their music is being monetised.

The same criticism could equally be made of non-statutory, statutory, or direct agreements by digital aggregators like CD Baby, Tunecore, LyricFind, Pledge Music, the Orchard and Loudr, each of which offer varying degrees of transparency of their own books, much less the deals they’ve made with digital services on behalf of the artists, songwriters, labels and music publishers appointing them as agents for relicense of music.  (Loudr, for example, has recently started participating in the most obscure licensing process of all, the mass NOI registrations with the Copyright Office.  Read more about that on another series of MTS posts or my recent article in an American Bar Association journal.  At least with mass NOIs, songwriters know what their royalty is–zero.)

Loudr NOIs
Mass NOI Filings by PK Interactive on behalf of Loudr

It is probably fair to say that there is no disclosure of the actual terms of the direct licenses between these aggregators and the services concerned.  It may also be possible that no one has ever asked the aggregators for the terms of their deals.

That’s a real head scratcher because arguably those aggregators have an even greater obligation to disclose these terms given they cater to many artists, songwriters, music publishers and labels who are unlikely to have the means–even if they have the right–to conduct a royalty examination of any of these companies.  However big a problem anyone has with major labels, every major label artist and major publisher songwriter takes their “audit” rights for granted.

It would be very simple for aggregators to disclose the terms of their deals or to at least summarize them so that artists or songwriters who are considering who to sign with could compare payouts.  It’s fine to tell people what their royalty split, flat fee, or distribution fee might be, but the assumption is that the revenue stream being shared is identical from one aggregator to another.

Also remember that it is common for music services to pay “nonrecoupable” payments to labels–just like it was for record clubs.  This comes in the form of “breakage” or “technology payments” or other ways to keep the money from being called a royalty.  We know this very likely happens with major labels although the amounts are not disclosed–hence the MMF UK’s beef.  We have no way of knowing if it happens with digital aggregators or even what the basic terms of the deals are, which makes it difficult to conduct a desktop audit (the precursor to a full-blown field audit), much less an exhaustive royalty examination.

So let’s not limit the transparency concern to just the major labels.  The digital aggregators could easily lead the way forward by posting the terms of their deals with digital services.  Unless of course the problem lies as much with the digital services as it does with the labels.

 

#irespectmusic and #savesoho Join Forces in London, Tuesday, April 18!

IRM London

BBC 6 Music’s Matt Everitt hosts this very special event.

The Save Soho pop-up venue returns to The Union Club for a special meeting bewteen two artists, both well known for their activism in the music sector. Blake Morgan, from New York – founder of #IRespectMusic and Tim Arnold from London – founder of Save Soho.

This will be a chance to hear both artists perform as well as hear each of them discuss their passion for protecting the rights and freedoms of the creative communities in the UK and the U.S with their campaigns.

The Reservation continues the Soho tradition to support emerging artists.. For this event we are delighted to welcome singer Sara Strudwick in her debut London show.

Make your reservation now….

http://www.seetickets.com/event/save-soho-the-reservation/the-union-club/1064413

#IRespectMusic: It’s Time for the New Congress to get Serious About the Performance Right for Artists

irm-marsha

Friends don’t let friends get LRFA’d.

Once again we’ve started a new session of Congress with really old news–the National Association of Broadcasters is yet again circulating the reactionary Local Radio Freedom Act (or the grammatically challenged “LRFA”) that’s been warmed over and served up again from the last Congress.

irm-deutch

LRFA’s purpose is twofold.  Get unsuspecting Members to support a policy to deny recording artists their fair share for the performance of their recordings on terrestrial radio.  How?   By aligning America with the practice of Iran and North Korea that is out of step with the business of every other major world economy.  And because America denies the world’s recording artists the same treatment that American artists would enjoy overseas, America’s trading partners justifiably refuse Americans reciprocal treatment in foreign countries.  Which is more embarrassing?

i-respect-music-representative-judy-chu-creative-rights-caucus-2014

It’s not that American artists don’t earn the foreign performance royalties–it’s that the royalties earned overseas by hardworking Americans are denied to them because Congress is misled by the NAB into thinking that fair compensation is somehow bad policy and the US denies equal treatment to foreign artists.  Why should those countries–who actually care about their creative class–grant reciprocal treatment to Americans?

doug-collins

It goes like this:  When you hear Aretha Franklin sing “R-E-S-P-E-C-T” written by Otis Redding on the radio in your car, that economic transaction results in Otis Redding (the songwriter) getting paid as a songwriter under the government’s 75 year consent decrees (another sad story).  Aretha Franklin, however, gets ZERO.

blake-nadler

When that same recording is played in the UK, Otis Redding still gets paid as the songwriter, but the artist does, too.  Except that because Aretha is an American, her money is never paid to her.

This obvious inequity is what motivated over 14,000 musicians and music fans to sign the I Respect Music petition in the last Congress and created the largest grass roots movement in the history of the music business with a positive message.  Because friends don’t let friends get LRFA’d.

It’s one of the few issues left that is truly bipartisan.

When Blake Morgan and the IRM team took the 14,000 signatures on the IRM petition to Congress, they had to carry two huge books of signatures.  And yet, we once again are presented with getting LRFA’d.

irm-team

LRFA is the Alinsky-style straw man–demonize your opponent as something you want people to believe your opponent to be (a “tax” for example), then perpetuate that mischaracterization no matter what.  (In the current parlance, something pretty close to gaslighting fake news.)

This LRFA legacy “nonbinding resolution” has become an evergreen in the arsenal of the NAB’s gaslighting efforts to perpetuate exploitation of recording artists for one reason and one reason only–because they can.  The NAB gets a bunch of Members to sign up, don’t tell them the truth about what they signed, and hope that nobody tells them otherwise until it’s too late.  But when Blake teaches the I Respect Music story on college campuses across America, it requires little explanation.

georgetown

What the NAB’s vast army of lobbyists will do with the LRFA after they largely dupe Members into signing on to it (and dupe Members staffs into allowing their bosses to sign on without doing the real staff work to know how they are being duped) is to perpetuate the greatest inequity in the Copyright Act by convincing members that any performance right legislation is doomed to fail so why support it?

How do we know this?  Because the NAB did the same thing in the last session.  When artists met with Members in their offices to discuss what happened, it turned out that many Members had no idea what the real story was behind LRFA.

blake-poppy-cnn

It’s important that your Member of Congress understand what the NAB is up to with this gaslighting campaign.  The truth behind this great inequity needs to be told along with the hard economic facts–because of faux legislation like LRFA, America is leaving hundreds of millions in real revenue from foreign countries that could easily be repatriated by American artists.

irm-quilt

Not to mention supporting future American artists.

i-respect-music-kid-piano-sm

We cannot let another session of Congress pass by without fixing this great inequity.  Don’t let your Member of Congress be fooled again–because friends don’t let friends get LRFA’d.

Call your representatives and sign the I Respect Music petition by clicking here.

And vote.

irmaiv-1