MUSIC LAW: CONTRACTS AND MUSIC DEALS

How to Make it in the Music Business

Artist Courtney Love issued a letter to the music industry explaining that until recently, Congress believed that the RIAA spoke for recording artists, and not a trade group that is paid for by record companies to represent their interests.

File Sharing
is not theft.

DRM

TECHNOLOGY & THE LAW
Standard English Language
vs Technical Language

The Economy of Ideas A Framework for Patents and Copyrights in the Digital Age. (Everything you know about intellectual property is wrong. By John Perry Barlow Cognitive Dissident, EFF Co-Founder, and Fellow, Berkman Center for Internet& Society. John Perry Vice President, MBS Comedy Development

Different Kinds of Licensing Rights

Licensing Children's Music for Television
Process of licensing the music to Fox Television. No agents, no libraries, not even any existing relationships to leverage. Just a response with a You Tube link, verification of ownership, contracts, attorney's review, signatures, FTP files, and it's on. Indeed, the playing field is leveled. What a great time to be an independent musician!

CopyLeft THE CREATIVE COMMONS
Open Audio License

Q U O T E D
"The good news is that you guys have managed to buy every major legislative body in the planet, but you know the problem is, the bad news is that you're up against a dedicated foe that is younger and smarter than you are and will be alive when you are dead, and has historical forces on its side, and is using its technological acumen very adeptly to ward off all of your efforts of control and you're gonna lose that one. I mean you're fifty-five years old and these kids are seventeen and they're just smarter than you are. So you're gonna lose that one. But the good news is you guys are mean sons of bitches and you've been figuring out ways to rip off audiences and artists for centuries really, and all you gotta do is get outta bed a little earlier in the morning for a spell and you'll find new ways of doing this. I have every faith in you and you should give yourselves a little credit, instead of howling that you're going to be victimized. It's not like you to be victimized."
Watch Video - EFF Founder and Grateful Dead lyricist John Perry Barlow who delivers a razor-wire bouquet to Motion Picture Association of America President Dan Glickman. Glickman gives the company/industry line equating sharing music with stealing which it is not! Barlow will impress you because instead of being indoctrinated to said line, he's thinking about the issues. Be sure to stay to the end, it will be worth your while.
Shutting down sites. Now that makes just about as good business sense as suing your customers. Yeah, that worked. Have CD sales gone up? Has file-trading gone down? NO! Everybody who wants to go into business, make a deal. So you're not locked into one company's future. So said company doesn't become bigger and more powerful than you are. The Net landscape is still changing. As if MySpace isn't going to be eclipsed by whatever comes next.
DON'T sue. Don't seek legislation. Come up with pragmatic licensing situations NOW! Get paid NOW, before most of these sites GO UNDER!

Fair Use - Public Domain - Resources - Copyright - Copyleft - Commons

WHO OWES YOU MONEY?

A real solution would require the licensing system to change, and that's not likely to happen anytime soon. Of course, the labels are not so quick to admit their wrongdoing and in their press release the settlement is described as a compromise. “The settlement is a compromise of disputed claims and is not an admission of liability or wrongdoing by the record labels,” it reads.

Record Labels To Pay $45 Million for Pirating Artists' Music Written by Ernesto on January 10, 2011
Canadian class action lawsuit which was started in 2008. A group of artists and composers who grew tired of waiting endlessly for their money filed a lawsuit against four major labels connected to the CRIA, the local equivalent of the RIAA.
Revealing a double standard when it comes to 'piracy', Warner Music, Sony BMG Music, EMI Music and Universal Music now have to pay Canadian artists $45 Million for the illegal use of thousands of tracks on compilation CDs. Warner Music, Sony BMG Music, EMI Music and Universal Music were sued for the illegal use of thousands of tracks and risked paying damages of up to $6 billion. this happens worldwide and more frequently than one would think.It is no secret that the major record labels have a double standard when it comes to copyright. On the one hand they try to put operators of BitTorrent sites in jail and ruin the lives of single mothers and students by demanding hundreds of thousands of dollars in fines, and on the other they sell CDs containing music for which they haven't always cleared the rights. Over the years the labels have made a habit of using songs from a wide variety of artists for compilation CDs without securing the rights. They simply use the recording and make note of it on “pending list” so they can deal with it later. This has been going on since the 1980s and since then the list of unpaid tracks (or copyright infringements) has grown to 300,000 in Canada alone. Canadian licensing collectives, WEREhappy with the outcome. EMI, Sony, Universal and Warner were painfully confronted with their own double standard when it comes to copyright infringement.

BOB LEFSETZ: The major labels steal. That's their business model. Do you think those interminable contracts are about protecting your rights? What are the odds the same team is gonna be involved when you finally have some success and start questioning your royalty statements? Which is why in the nineties, when recorded music revenues were still high, lawyers demanded huge advances, equal to projected royalties, because they didn't trust the labels. But now that revenues are down, so are advances and the artist is getting screwed.

It's like prostitution. You're nowhere and the big bad pimp is giving you a chance at a better life. And when you've finally realized what a bad deal you've made, it's too late. You're used goods, indentured to the man who moved you one step ahead, but off the radar screen.

Only sign a major label deal if:

1. You make radio-driven hit music and your career is dependent upon it. The majors control radio, you can't have a hit without them. But radio means ever less, and the formats other than Top Forty are also-rans paying ever-decreasing dividends.

If you make a deal with a major label:

1. Try to make the term as short as possible.

2. Delineate clearly in the document what revenues are per digital download and digital stream. That's a new area, write off CD accounting, that's like trying to change the stats in a baseball book. Digital data is clear, it's harder to fudge, make sure the label gives you access to it.

3. Know that you're selling your soul for fame. They're investing in you for their profit, all you're gonna get is notoriety and some money, certainly not all you're entitled to. Fame pays dividends in personal appearances and endorsements. Try to keep these out of the deal. Because then they're stealing from you in these areas too.

4. Try to have as much success independently as possible before you sign. It gives you leverage, the deal will be less heinous, but you'll still get screwed.

You can make it without the major.

1. You can sell via Tunecore or Bandcamp. They're both more trustworthy than the label.

2. You can market online for free.

3. You can do whatever you want artistically, record and release every day or every ten years, it's your choice.

4. Agents make deals with acts that can sell tickets. Sell tickets, you get representation. They don't care if you're signed to the major label.

5. Fans are your label. They're your sugar daddy. They'll keep you alive, they'll keep you going. Build a relationship with them by giving them attention and free goods (fans buy the most product, who do you think is buying the $250 packages on Topspin?) The odds of every one of your fans dropping you the same day are nonexistent. The odds of your label dropping you are...very high. But they'll only do it if you've got no success. If you make the label money, they'll torture you, consider yourself in prison, one where the guards roam at will and get fat and you're locked in a cell eating gruel.

Where does this leave the major labels?

This disingenuous model won't survive. Google Analytics is detailed and free and you can't get an accurate report on the music you've sold, never mind get paid? The labels are isolating themselves, they've got a bunker mentality, it didn't work well for Louis XVI and it won't work well for them.

If labels want to survive, they need transparency. And deals must be fair.

But if deals are fair how will the execs live such lavish lifestyles?

They're living those lifestyles on your money. Why is it the execs are always richer than the acts? Without the acts they're nothing!

We could be switching to a paradigm where the acts rule, where the acts control the game.

Then again, the acts tend to be like those willing teenage girls in Eastern Europe, without a pot to piss in, signing away their lives in the dream of something better, because they know the path they're on is drudgery.

Which is why the best and the brightest are not in music. They're in finance or tech. Where the rewards are greater, where you've got a better chance of being in control of your own destiny.

How do we solve indentured slavery prostitution?

I'm not sure we ever can, not without more economic opportunity for these girls to begin with.

But at least people are debating this issue, they're trying to help. Meanwhile, the labels keep bitching and the press and the government eats it up. Saying they're protecting the artist. Such horseshit.

If you don't know the labels steal then you're not in this business. But the problem is not so much them as it is you. No one is forcing you to sign on the dotted line. But you think if your record comes out on Universal or Warner Brothers, you've made it. But there's no label on a digital download, and just because a product is in the supermarket that doesn't mean it sells. And today the supermarket is worldwide, stuffed with tons of goodies. The avenue to success is not making a deal with the devil, but being really good. Because if you're really good the Net can focus attention on you in a heartbeat. But this usually happens years after you've started, when you're finally in the groove, when you're worthy of the attention, long after the major label would have dropped you and you would have quit in frustration.

2015 Robin Thicke and Pharrell Williams have been ordered to pay Marvin Gaye's family $7.4 million for "Blurred Lines" infringed on "Got to Give It Up"

The Blurred Lines Decision ~ Bob Lefsetz

It's the same song. And once you go to a jury... You've got to understand the law is not about common sense. It's not about deciding who is right. It's about laws, both statutes and cases, and even though someone or something might smell guilty, that does not mean they are under the law. Which is a good thing. Because it makes life predictable. So, the judge didn't allow the recording of Marvin Gaye's "Got To Give It Up" to be played in court, at least at first, and it came down to the sheet music and you could see why Pharrell and Thicke thought they had a chance, at least their lawyers thought they had a chance, but juries are notorious for going on feeling/running on emotions. This should have been settled out of court. Then again, you've got to come up with a number, you've got to make an agreement. For every case like Sam Smith's where the parties are amenable, there are others where one party is entrenched and unreasonable, sometimes even both! That's what they don't tell you about the law. It's not about the courtroom, it's about settlement, negotiation, and the key is to have an attorney who knows how to get an agreement, who is also willing to go to court if one cannot be reached. So... It's the same damn song. Everybody knows that. Where is the line? WHO KNOWS!! Sure, there are a limited number of notes, but the truth is most people don't have enough money to sue, so stuff never gets to court, never mind settlement. And then there are those who let it ride. But when you have heirs who didn't write the music to begin with and are living off the proceeds...it's hard to let things go. As for the amount of money made by the track, revealed in the courtroom, THAT'S A GOOD THING! For over a decade we've had to hear how the music business is challenged, how you just can't make any money. Then you've got these guys rolling in dough. It'll encourage people to make music. To the degree the numbers are even remembered. That's right, Pharrell and Thicke's checks are an antidote to the Wall Street/financial money. Who wouldn't rather be a musician? Everything they've been telling us is wrong. There's tons of dough if you're great and successful. It's just that most people aren't. And it's these losers who are complaining the loudest. As are those inured to recording monies. But if you can make this much on recordings, and you've got live income too? WHOOPEE! So if you rip off someone else's track, consciously or subconsciously, and you have a hit with it, chances are you're gonna be sued. Hell, the truth is you're gonna be sued even if there is no similarity! The old axiom applies, that's right, "Where there's a hit, there's a writ!" Talk to the superstars, they've all been harassed and sued for no good reason, it goes with the territory. But if it's too close... As for a rash of these lawsuits, give me a break. Were the courts littered with cases after the George Harrison "My Sweet Lord"/"He's So Fine" case? NO! So the only story here is people might think a bit harder as to whether they copied and if they did, and the song makes bank, they're gonna get a phone call. Once upon a time, rappers sampled hit records willy-nilly, that's history. And if you copy, you're probably gonna be busted.
Once again, where's the line?
1. No one cares about a track that doesn't make money. You don't spend all that money suing to make nothing.
2. If there is similarity, you may or may not be sued, and if you are, you're usually better off settling.
3. Juries are unpredictable. And they tend to run on emotion. The songs were so similar that the jurors felt the injustice and found for the plaintiffs. Judges can frequently separate emotions from facts, but not juries.
4. Appeal. Juries get it wrong all the time. And judgments are reduced or cases are sent back for retrial and... Frequently, settlement is achieved and the number you see in the news is never paid.
So... How many of these lawsuits do we hear about? How many go to trial? Almost none. So, sleep tight and know that music still rains down money, no matter what everybody in it keeps saying...

What is art? Excerpt from pages 42-54 of The Economics of Attention: Style and Substance in the Age of Information by Richard A. Lanham, published by the University of Chicago Press. 2006 by The University of Chicago.

Duchamp said he made the first one, the bicycle wheel, just because it was fun to spin the wheel around. But when you exhibit it, when you put it into an attention field called "art," it becomes a catalyst. You must look at it differently. Yes, we should indeed pay more attention to the utilitarian world, savor its beauty as beauty. But when you find yourself gazing at it worshipfully, Duchamp turns around and says, "It's just a bicycle wheel, you silly jerk." The final result is to make us oscillate back and forth between the physical world, stuff, and how we think about stuff. It makes us look at our own patterns of attention and the varieties of "seriousness" we construct atop them.

Global digital music sales triple to US$1.1 billion in 2005 as new market takes shape.

RADIO GOING TO THE WEB CNET, 18 October 2004 Under the $1.7 billion agreement, the 12,000 member Radio stations of the RMLC will be allowed to broadcast songs simultaneously over the Internet and over the airwaves. A deal between the American Society of Composers, Authors, and Publishers (ASCAP) and the Radio Music License Committee (RMLC) promises to bring a much broader selection of music to Web radio. ASCAP's music library comprises 7.5 million copyrighted titles. The deal retroactively covers licensing fees back to 2001 and establishes a fee structure through 2009, replacing a system of fees based on station revenues. ASCAP noted that the agreement also avoids potentially expensive litigation between the two organizations. Vincent Candilora, ASCAP's director of licensing, said of the deal that it "indicates the true economic value of our members' music to the radio industry" and said he was pleased to provide ASCAP members with income "that they can count on well into the future." See if SOUNDEXCHANGE owes you any money.

Robinson-Patman Act
passed by the U.S. Congress in 1936 to supplement the Clayton Antitrust Act. The act, advanced by Congressman Wright Patman, forbade any person or firm engaged in interstate commerce to discriminate in price to different purchasers of the same commodity when the effect would be to lessen competition or to create a monopoly. Sometimes called the Anti-Chain-Store Act, this act was directed at protecting the independent retailer from chain-store competition, but it was also strongly supported by wholesalers eager to prevent large chain stores from buying directly from the manufacturers for lower prices.

Simon Higgs http://www.higgs.com/ Wed, 08 May 2002 Like blank cassettes or MiniDisks or DAT tapes The Audio Home Recording Act already levies 2% of the manufacturers sales price as a fee to you. 4% is set aside for non-featured artists, of the remainder 40% for the featured artist and 60% for the labels
[1]. Every CD recorder has a $2.00 surcharge built into the price that goes directly to the RIAA. The jury is still out on whether any artists have actually received royalties from this tax. But, go back to hard media and look at what type of tangible form the copyrights are actually protecting.
"Mechanical" royalties are collected by Harry Fox (a subsidiary of National Music Publishers' Association) for content distributed on physical media (records, tapes, CDs and computer chips).
"Public Performance" royalties are collected by ASCAP, BMI, SESAC (etc.) for content distributed via radio airplay, broadcast and cable television, live, and on the Internet (this is also known as "webcasting").
Now, of course, the Internet has created a territorial overlap. When you download material that is still in a fixed tangible form (i.e. an audio data file), copyright law indicates that it should still be protected by a mechanical royalty as the consumer copies the audio file to a similar tangible form (an audio CD or by copying an MP3 to an MP3 player). When you download material that is streamed in a similar manner to radio (i.e. "webcasting"), copyright law indicates that this is the same as a "public performance", and should be protected by a public performance royalty. But on the Internet, Harry Fox collects "streaming" royalties, and ASCAP/ BMI etc. collect "mechanical" royalties. Are you confused yet? A little tip, the key word for webcasting is "non-interactive" services. If your service is interactive, then you're supposedly back to a fixed-form mechanical license. And you'd better comply with the DCMA or you're going to jail.
We have another group of problems. The royalty tracking companies that have emerged over the last five years only track streaming downloads. They don't all track file downloads (those pesky tangible fixed-form audio files the record industry manufactures on CDs by the truckload). These royalty audit systems are not designed to track comprehensive downloads of an artists catalog, only files served by streaming servers or "internet radio". I asked one vendor why, and they apparently have been given no incentive to do this by the performing rights organizations. After all, ASCAP and BMI both benefit from being able to enter the Internet streaming revenue er.. stream.
The recording industry wants to use this technology to enforce royalties on Internet Radio (because it can), without properly addressing file download royalties. Lawsuits against MP3.com, Napster, Music City, et al, only try to stop downloads from occurring, but do not properly address download royalties. Their attempts are similar to using your pinky to plug a "leaky crack running the length of the Hoover Dam".
Meanwhile, the artist is left exposed and unrepresented. One one hand, the RIAA has sued anyone in their path, while the FTC has sued the RIAA membership for collusion and price fixing[2]. On the other hand the RIAA continue to amend distribution rules to exclude the artist. Companies such as Napster and MP 3.Com can't join RIAA because of the lawsuits brought by RIAA. That excludes the 91,000 artists distributed by MP3.com (74,000)[3] and Napster (17,000)[4]. None of these artists are being served by the RIAA membership whose rights the RIAA claims to protect.
According to Negativland, the RIAA have also taken upon the multiple roles of police, judge, jury, and executioner by destroying, without due process, original masters merely suspected of copyright infringement [5]. In this case, it is when a manufacturing plant merely suspects that samples used on an otherwise original recording have not been cleared. Efforts to suppress the manufacture of works protected as fair use under copyright law is seen by some to constitute prior restraint.[6]

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AFM & AFTRA Intellectual Property Rights Distribution Fund Music Royalties: Does anyone owe you money?

Works For Hire - RIAA-sponsored "technical amendment" to a Congressional bill makes recorded music "works for hire" under the 1978 US Copyright Act.

WORLD INTELLECTUAL PROPERTY ORGANIZATION GENEVA - TCPA is the technological realization of the concepts embodied in the WIPO Performances and Phonograms Treaty (WPPT), which only came into effect this past May 20th 2002 (with little public notice, of course). The WPPT declares an unprecedented "moral right" of authors to control public uses of their works. That's the game plan.

Grey Album is Album of the Year 2004
Grey Album is illegal. Because of current copyright law, You are not allowed to buy a copy of the the best album of the year because of copyright law. Is copyright law promoting art? Meet Dangermouse, the most sought-after producer in the world right now, producer of the legendary Grey Album and Gorillaz Demon Days LP. Dangermouse tells us his story, from working in a London pub producing bootlegs in his spare time, to becoming the first artist to have a UK number 1 on download sales alone.

• How to Investigate the Copyright Status of a Work
• Compulsory License For Making and Distributing Phonorecords Royalties and statements of account under compulsory license
• Checklists of Required Information
• Mechanical Copyright Royalty Rates
• Get a UPC Barcode - about UPC Barcodes
• WHAT A CD NEEDS About ISRC Codes

Statutory Royalty Rates - The current (2004) statutory rate for royalties is 8.5¢ for every copy sold if the playing time for the song is under five minutes. If the playing time for the song is longer than five minutes, the rate is 1.65¢ per minute, rounding up to the next minute.

• under 5 minutes = 8.5¢ per copy
• 5 to 6 minutes = 9.9¢ per copy (6 minutes x 1.65¢)
• 6 to 7 minutes = 11.55¢ per copy (7 minutes x 1.65¢)
• 7 to 8 minutes = 13.2¢ per copy (8 minutes x 1.65¢)

On January 1, 2006, the rates go up to 9¢ per song or 1.75¢ per minute. The Copyright Office can always keeps the most up to date information concerning statutory royalty rates at this link:
The Copy Right Office royalty rates
The publisher may tell you to that they don't deal with compulsories, and that you should contact the Harry Fox Agency. But they may be unaware that the Harry Fox Agency does not currently handle compulsory licenses for individual artists distributing downloads ("DPDs"). Remember the law is on your side. You are entitled to a compulsory license by law. You have permission - (a compulsory license) - as soon as you send the notice, described above, to the proper publisher.

• Royalty fight clouds music subscription 2005

  Webcasting Royalty Rates Set--For Now 2002

  Royalty Statements - Paying Royalties
  How much do you get paid when your song is streamed?
  A. Downloads/streams/sales pay only a couple tenths of a penny.
  Q. Are all of these subject to the 9cent compulsory?
  A. NO

CopyRight Issues: Use of early recordings for documentary video

Music encompasses a number of different licensing rights. Bob Rice AchieveGlobal

Music encompasses a number of different licensing rights. The good news is that procedures and policies for obtaining rights to use a musical composition are well established. It is also usually clear who owns the rights being sought. The bad news is that you normally must negotiate with several different parties to obtain all needed rights to use music for something other than personal PRIVATE listening.
One exclusive right of the owner of a musical composition is to control public performances.
17 U.S.C. ? 106(4). A classroom setting is, for all practical purposes, considered public performance. You must get permission, and usually pay a fee, to use music in the classroom.
Two pieces of advice. Refuse to listen to the well-meaning but misguided folks who will tell you that you won't get caught and it's no big deal. Maybe you won't and maybe it isn't, but it is at a minimum an issue of ethics. Our company faced this same dilemma. We bought the rights to a collection for use by our trainers in class. The music works great, and we stay legal.
Although we turned to a production house for the music (rather high-priced for an individual), you can purchase the rights to music created especially for the classroom at reasonable cost.

Can you just please explain why I can't just put up a website with guitar tabulature?

2006 licensing rights is the democratization of the music world. Podcasters say these free-use networks have accelerated a new way of thinking -- an online infrastructure that allows bands to build their name from the ground up. Between bloggers, live radio streams, MySpace and podcasts, a band now has dozens of avenues -- outside of traditional record companies -- to develop a global fan base. What once was a hierarchy of record studios and radio stations has been flattened by a revolution of online forces which continue to redefine the model of the music industry by the month, the week and the day. The success of MySpace has encouraged the expansion of such blogs as Music For Robots (music.for-robots.com), and My Old Kentucky Blog (myoldkyhome.blogspot.com), where communities of tens of thousands now share their new favorite tunes and bands. It also led to such streaming online radio alternatives as Live365.com, Pandora.com and LAUNCHcast (music.launch.com), which allow users to customize their own personal radio station. An endless catalogue of podcasts -- today there are around 5,000 music-only podcasts -- have, for many listeners, taken the place of radio entirely. PitchForkMedia.com what has been created through this emerging network of music fans is an entirely new system of "taste makers" -- influential voices which were once found only on radio stations and in entertainment publications -- and a new philosophy behind the marketing, promotion and distribution of music. Late last year, organizations such as the Independent Online Distribution Alliance and its counterparts offered a solution to the final hurdle hindering podcasts: the legal issues surrounding a song's royalty fees and copyright protections. By bringing hundreds of independent record labels together, and having them approve their bands' music for free-use purposes, IODA launched a service it calls PROMONET, which distributes thousands of free tracks to approved podcasters every day. Podcasters must mention the band's name, and report back on how well the track plays with its audience. According to Tim Mitchell, IODA's vice president of marketing and business development, and Dave Warner, the creator and host of the weekly podcast Dave's Lounge, services such as PROMONET -- and others like the Podsafe Music Network -- create a win-win situation. Podcasters get new music. Bands get access to more potential fans, and information about those fans. Audiences get to hear the hot new thing.