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2013 Future of Music Coalition – My Tweets, Rants & Reactions (Part 1 of 2)

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I thought before too much time passes, I should collect my tweets and comments about The 2013 Future of Music Coalition Policy Summit held in Washington DC October 28-29, 2013.  The 2013 World Series was happening at the same time, so FMC was not my top priority.  Taking notes and tweeting about an event is also not my favorite activity but one that I occasionally delve into. (Grammar Girl believes we should be able to end sentences with prepositions, in case you were wondering abut that last sentence.)

This will be fun to collect and NUMBER tweets.  I had no idea that I wrote 75 tweets (shown below) and more in the next posts.  I wrote more at one part of the program but will not include these as I was writing about the worst presentation I had ever seen at an FMC event.  (If you are curious about it, you could go search my tweets from October 28-29, 2013.  I won’t and I don’t think you should either.)

It is important to note when reading tweets below that Peter Jenner has a great British accent and would usually be the smartest guy in the room.

1.  Peter Jenner is dead on. It has to be made easier to access music. The scandal is that Spotify is the only best access to music #fmc13

2.  Peter Jenner: “Anyone who thinks that we can control the Internet is up their ass.” #FMC13

3.  Peter Jenner – we have to think “collective” in order to create a means by which more are paid. (Socialism! Hah hah!) #fmc13

Like I said. The man’s lovable RT @emh2625: Peter Jenner: “Anyone who thinks that we can control the Internet is up their ass.” #FMC13

4.  Peter Jenner: “Anyone who thinks that we can control the Internet is up their ass.” #FMC13

5.  Peter Jenner – we have to think “collective” in order to create a means by which more are paid. (Socialism! Hah hah!) #fmc13

6.  Are you sure you want to be in the music biz? Be extraordinary. Do not sharecrop. Don’t sell copyright unless price is high. #fmc13

7.  Make community, support & be supported. Learn to pay fair wage & get fair wage. If you don’t like status quo, change it. #fmc13

8.  Learn you’ll be popular & not know why. Learn you’ll be UN-popular & not know why. Love music. (Erin McKeown) #fmc13

9.  Music business should be a part of music instruction. (EMH – do 4 hrs, not 8, 2 not 4 in a practice room-Learn Business & more) #fmc13

I had to add that ditty to my tweet as I think time has long passed when musicians, songwriters, and music students in music colleges and conservatories can expect to work 100% on their craft and the gorgeous invisible substance of sound and music.  Musicians, whether they want to acknowledge it or not, are involved in the world of business (who pays for these habits of theirs?) and technology (the body is tech, instruments are tech, electronics are tech, computers are tech, etc.).  Musicians need to develop their skills of conning people into thinking they (the musicians) are needed and should receive money for playing and/or writing music.  These skills have to be developed with an eye and ear for social media, business, technology, government and new means of touching the world.  I added “government” in that sentence because if it wasn’t for a very large and powerful central federal government and its blueprint plans, i.e., the Constitution, there would be no copyright law and no basis for federal support for authors and inventors.  And with the status of laws and litigation always in flux, interested parties need to continue to lobby their government to keep acting on their behalf.

10.  Jeremy Peters: Copyright is broken but other than Creative Commons, what is being done to fix it? #fmc13

11.  We’re moving from culture of owners to that of renters (of intellectual property – IP) #FMC13

12.  The conversation of “you are all thieves” to those not paying for IP is useless. Reminsicent of Federal government shutdown. #fmc13

13.  Artists who have been burned so badly by the miscreants in the music business – go out on their own is an option #fmc13

14.  Stream of income helps buy new gear, but this is not a solution, just an income stream #fmc13

15.  Get rid of minimal fee (for mechanical royalty) & concentrate on the amount of time is used in a composition or film #fmc13

16.  Methodology that can fairly compensate artists, writers. Amount of time is more realistic and fairer. #fmc13

17.  A new mechanical license proposal that is clear to artists, publishers, lawyers & the courts is needed. Modernization. #fmc13

18.  Songwriters Assn of Canada Prez has introduced himself as “sad Eddie.” Because of the Cardinals WS loss? Songwriters’ prospects? #fmc13

19.  New models gaining traction (Spotify). Legit, paid. Pandora too. Music creators embrace these models (EMH: not the RIAA) #fmc13

I think it is very bad to always ignore, then underestimate, misunderstand, litigate and then try to legislate against new technologies (a la RIAA & MPAA versus every new tech toy). The technologies always win.  

20.  Uh-oh. We’re hearing “I love the Internet” (“some of my best friends are black” comes to mind…) Then comes the HOWEVER. #fmc13

21.  “However” is Canadian for “but.” Some arithmetic is coming “the nitty gritty.” What’ll follow is lots of Internet plays & tiny money #fmc13

22.  For the umpteenth time & to paraphrase Carl Sagan “billions & billions of” music spins & zero money. #fmc13

23.  To legitimate creators there is no difference between piracy & the legitimate new services. (Oh God) That attitude will help. #fmc13

24.  Rich people get richer by these new legit services while musicians stay poor. Music creators need a new narrative & new initiative #fmc13

25.  “Adopt fair trade” principles for musicians. (Good!) Next he describes the new categories. Now he’s bemoaning SOPA. (Glad it lost!) #fmc13

26.  To put all our eggs into the US Congress basket is a bad idea. They were crushed by the crushing of SOPA. #fmc13

27.  Fair trade criteria that is fair to consumers & businesses. Certify biz as fair trade coffee is done. Fair principles for creators #fmc13

28.  What is fair compensation for creators? “fair & sustainable” Need for transparency in all collective societies, pubs, labels. #fmc13

29.  Shouldn’t everyone be transparent in all the facets? (Yes, but keep dreaming, I’m afraid. This is the music industry…) #fmc13

29.  Want transparency? Good but when did that ever happen in the past? Too many speak as if the past was great & now is Evil Google #FMC13

30.  Canadians are not calling for new legislation or regulation. They are being pro-active. But pro-active in what way? Huh? #fmc13

31.  Canadians songwriting group is being pro-active. But pro-active in what way? By applying a “fair trade” sticker? No law, no reg? #fmc13

32.  Music Creators Alliance & Songwriters Guild of America are behind these past ideas (from my tweets). #FMC13

@future_of_music Thank you! I hadn’t heard the Happy and Sads from earlier! Being a Bostonian, first I think baseball & Boston & St. Louis!

I appreciated the FMC informing me of the “Happy” and “Sad” humorous labels from earlier.  (This was only the second FMC Policy Summit I’ve missed.  They are great events – much better in person –  and I hope to be at the next one.)

33.  Now we are able to hear the audio of FMC stream. Thank you, you tech people who turned it up to 11. #FMC13

34.  Small broadcasters have no clout when it comes to licensing. One-stop shopping (licenses) is essential to run music services/streams #FMC13

35.  Are exclusive deals (direct licensing) harmful to smaller broadcasters (I think so). Can anti-trust issues get in the way? #FMC13

36.  Good news about direct licensing – they can license around the consent decree. #FMC13

37.  Direct licenses problem – transparency! Usually there are non-disclosure agreements. Songwriters are kept in the dark. #FMC13

38.  Publisher can cut off payments to a songwriter during a dispute.” – Sad Eddie (of Canada) #FMC13

39.  Non-disclosure agreements hurt (prevent) transparency. #FMC13

And now, Jim Griffin.  When Jim Griffin speaks, I listen.  Only fools wouldn’t.

40.  What would direct licensing be on the entire music atmosphere? “Fragmentation is cancer.” – Jim Griffin #FMC13

41.  There needs to be a draft-draft musicians into publishing agreements like athletes are drafted by teams! – Jim Griffin #FMC13

42.  Jim Griffin is joking (somewhat) but his point is that there is power in unity. (Sounds like pro-union too.) #FMC13

43.  When athletes work together to get as much money as they can, musicians should do the same. But there’s antirust to prevent it! #FMC13

44.  Why is there only one (1) antitrust department? Excellent funny question relayed by Jim Griffin! (power via unity is the point!) #FMC13

45.  Musicians especially those early in career need better legal representation. – Sad Eddie (of Canada) #FMC13

46.  Why someone who has significant part of market then pulls out is now exempt from legal restraints? (issue in direct licensing) #FMC13

47.  Excellent and educational analogies with sports teams and unions presented. #FMC13 (EMH – We have to think this through and change.)

48.  Sound recording (SR) is not an exclusive license It is statutory right. Recordings cannot be withheld. #FMC13

49.  Ann Chaitovitz explaining SR & Sound Exchange. Perf right is split 50/50 – 50% musicians, 50% record label/SR owner. Copyright basics #FMC13

50.  Direct licensing by a label could (would/will/does?) result in keeping money from the artist/performers. #FMC13

51.  Union musicians until digital performance right (DPRSRA) & Sound Exchange were never paid for their contribution to sound recording #FMC13

52.  USA still does not have a terrestrial right for musicians (musicians are not paid when music is played on AM/FM) unlike rest of world #FMC13

53.  Musicians should be wary of the “workaround” that big broadcasters are doing by direct licensing. Big Radio wants to keep govt out. #FMC13

54.  U.S. “Green Paper” recommends a terrestrial right for sound recordings (SR). Terrestrial radio has huge advantage over digital radio #FMC13

Do you want to read the aforementioned “Green Paper?”  It is called, “Copyright Policy, Creativity, And Innovation In The Digital Economy” and was authored by the Department of Commerce Internet Policy Task Force in July 2013.  (If you are still reading and still interested, click on the following link and the 112-page “Copyright Policy, Creativity, And Innovation In The Digital Economy” will open. This enormous work is several other subjects for several other times.

55.  Is Pandora in favor of wanting a performance royalty for terrestrial radio? (Surely as it somewhat levels playing field) #FMC13

56.  Pandora might be paying over 50% of their revenues as opposed to others that pay much less. What is rationale for rate setting? #FMC13

57.  Exact same radio signal but different radio companies pay between 0 and 70% of revenue. Insane! What is the logic/rationale? #FMC13

58.  Argument about any study on this subject. Would be good to have written facts in front of the panel & audience. #FMC13

59.  For clarification, “Sad Eddie” as he has humorously been calling himself, is President-Songwriters Assn of Canada #FMC13

60.  Praise for US Copyright Law for Recapture Rights. YEA! Songwriters & musicians are able to recapture their copyright after 35 yrs #FMC13

61.  Recapture is the only country in the world that lets one change a contract after 35 years. #FMC13

62.  Better Call Saul! Ann Chaitovitz – 25 yrs after you’ve created something, call a lawyer (and get things fixed!) #FMC13

I use every possible occasion to mention Saul Goodman, an attorney who thinks quicker and acts more decisively than most and always has that 6th & 7th suggestion ready for you if you didn’t love the initial several.

63.  Best point yet – we’re in this mess because we deregulated radio in that damn awful Telecom Act of 1995 (bad Pres. Clinton bill) #FMC13

The Let’s Blow Up Clear Channel so that we can Homogenize the United States further and NEUTER Regional Radio and Music Act, i.e. The Telecommunications Act of 1996, did just what I described. 

64.  “Lifting the lid…”letting in antiseptic sunshine” (TRANSPARENCY) would be most helpful. #FMC13

65.  Best way to improve licensing- record & enumerate a globally-unique song identifier (VIN Vehicle Iden #) – Jim Griffin #FMC13

66.  If this (music) is property, why isn’t there a VIN or globally-unqiue identifier? Excellent idea by Jim Griffin (yea metadata!) #FMC13

67.  Musicians need level playing field. Can’t compete w/broadcasters. Musicians (serfs) must bow to broadcasters. #FMC13

68.  Both are true – musicians are not being paid via AM/FM radio and need the right, and some musicians fear testifying before Congress #FMC13

69.  It’s understandable that lowly musicians would fear speaking out against radio as radio can stop playing them. True? #FMC13

70.  Why is an audience member afraid to mention the huge radio station (for being against AM/FM performance license)? #FMC13

71.  Aud member: Many small club owners have stopped having live music b/c of high royalty rates via ASCAP, BMI, SESAC high rates. #FMC13

72.  You have to pay for the music or you won’t get much more of it. – Jim Griffin (last & great comments of panel) #FMC13

73.  The first Future of Music Honors dinner will be tonight. Sadly, I’ll be here in Nashville instead of Washington DC #FMC13

74.  4 bipartisan politicians have reauthorized FCC to create a new class of low power radio stations. Will be honored tonight at FMC #FMC13

75.  Congratulations to my friends Ann Chaitovitz & John Simson who will be honored tonight by Future of Music Coalition at Honors awards #FMC13

Soon I will publish

FMC – My Tweets, Rants & Reactions, Part 2

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Fair Use and Copyright Abuse – My AIMP Talk Is SOLD OUT. Scalpers? Buehler?

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I have the great honor and privilege to speak to the Association of Independent Music Publishers (AIMP) on Wednesday, September 25, 2013 at ASCAP in Nashville.  Here is the announcement and details about my presentation.  Surprisingly (to me) there are two words in CAPS that I never see used in conjunction with me:  SOLD OUT.  Fortunately this refers to the fact that there is no more room for the luncheon at ASCAP where I am speaking and NOT that I have SOLD OUT (my principles).  Or so I am going to assume.

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My work as a consultant in copyright and intellectual property (IP) matters is always fun and original as very crazy things can occur when we creators create.  I get brought into some of the events surrounding potential and actual problems.  I have been and continue to be witness to brilliant decision making, as well average and poor decision making when it comes to music, IP law and money.  People do things that will make them profits and prosperous.  Some do average, ho-0hum expected things, and yet others make bad decisions that will be negative financially for more than 100 years.  (Copyrights might outlive many glaciers at the northern and southern ends of our planet.  When a 30 year-old gives up part or her copyright, it is a decision that could last for 130 years.  Assuming she will live 60 more years, her copyright will last 130 more years:  60 years alive + 70 years after her death.  And I expect that every twenty years, copyright will be extended another twenty years – the 130 year decision might become a 200 year decision.)

We have been and continue to be surrounded by IP – train and car horns blast their metal music made from metal objects, adverts are seen and heard mostly with music or sounds, radio sometimes play music (in those few radio stations when radio is not presenting the sounds of more adverts and humans speaking to and at each other, i.e., “talk radio”), the Internet, music on the Internet, televised and transmitted images (often with sounds) from mobile devices, large devices, billboards, etc.

We absorb and reflect a lot of the sounds, sights, ideas and attitudes we perceive.  We have to copy some of it as it is important that we use UNORIGINAL words in our speech, writings and music, and UNORIGINAL melodies, chords, rhythms, sounds and loudnesses in our music.  (With respect to music, I am referring to UNORIGINAL, individual (or very brief-lasting) musical components.  ORIGINAL expression usually consists of UNORIGINAL elements strung together in ORIGINAL ways.)

Problems that can happen include:

1)  What we create sounds like something else, something already created.

2)  What we create looks like something else, something already created.

3)  What we create sounds and looks like something else, something already created.

And some might say, “So What?”  And in response one might say, “So What?   You stole my song, that’s ‘So What.’  Your success is due to infringing my copyright.  You’re only successful because of my creativity, my ideas, my expression, my copyright.  (My my my….my.)  I’ll see you in court!”  (Oh, but it is never that simple.)

Two more things before I get to fair use.

1.  We STEAL (copy) ACCIDENTALLY.  Let’s be kinder – let’s say it this way.  We inadvertently copy from other sources.  How can we NOT copy from other sources when we are bombarded by external stimuli?

2.  We STEAL (copy) on purpose.  We INTEND to STEAL (copy) and we do.  We copy because we like the sound of some preexisting sound, or the sound and effectiveness of some preexisting chord, chords, phrase of a melody, phrases of text or lyrics, individual words, certain instruments (a Coke bottle has been in the music copyright infringement news lately – that ubiquitous Blurred Lines by Robin Thicke, and its imitation of Marvin Gaye’s Got To Give It Up), combinations of instruments, sounds, combinations of sounds, etc.

There is a part of the Copyright Law that acknowledges and enunciates that we can make use of an original work of authorship – “original work of authorship” that is NOT our work, and WITHOUT permission – if we have a good reason for doing so.  This part of the Copyright Law is Section 107.  It is entitled, “Limitations on exclusive rights:  Fair use:”

“§ 107. “Limitations on exclusive rights:  Fair use.“

Copying someone else’s expression is allowed.  Perhaps it is more accurate to state it this way:  Copying someone else’s expression is possible.  Is permissible.  Can happen.  Can happen without negative consequences.  (Fair use can mean that one has the right to hire expensive attorneys to fight back against a plaintiff’s assertion that you have infringed her copyright.  The “without negative consequences” is initially a theory –  it often takes time, money, attorneys and experts to negate the “negative consequences.”)

As to why and how one can use someone else’s creations – their original work of authorship without their permission – the authors of the Copyright Law might have been careful and diligent in listing SOME of the reasons why it would be permissible to not seek permission:

“…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research…”

“The fair use of a copyrighted work…is NOT an infringement of copyright.”  (I capitalized “NOT” in that sentence from Section 107 .)

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I will delve into fair use today as well as the other related subject below.  My flow today will likely go this way:

1.  The definition of “original”

2.  With respect to music and copyright, examples of Bad Lawyering/Bad Lawyers in Bad Practice (there is not a kinder way of expressing this.)

3.   What is fair use?  Examples of fair use – copying music only, words only, words and music.

4.  What is “co-authorsip?”  What is a “joint work?”  The assessment of each writer’s expression in a joint work.

5.  The Worst Music Publishing Mistake Ever Made By Famous, Wealthy Musicians

6.  My most recent work for a plaintiff

7.  “…As the world turns….As copyright becomes irrelevant…”

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I will play and discuss music from these composers/creators/authors/artists.  (As you might guess, many of these will be short excerpts.)

Aerosmith

Atomic Kitten

B. S. G.

Baby Game

Burt Bacharach

Baha Men

Barrio Boyzz

Bela Bartok

Beatles

Bon Jovi

Asha Bhosle & Kishore Kumar

Jimmy Boyd

Garth Brooks

Brooks & Dunn

Circle Of Success

LL Cool J

Jonathan Coulton

Cream

Creedence Clearwater Revival

Crime Boss

Crosby, Stills, Nash & Young

Culture Club

Joe Diffie

Hilary Duff

Dr. Dre

Bob Dylan

Eminem

Fatback Band

Fifty Cent

Flintstones

The Game

George Gershwin

Isaac Hayes

Jimi Hendrix

Faith Hill

Buddy Holly

Hootie & The Blowfish

Mary Hopkin

Marques Houston

Jefferson Airplane

Elton John

George Jones

Montell Jordan

Wiz Khalifa

King Crimson

Krayzie Bone

k.d. lang

Lil Malcolm

Little River Band

Lootenant

M.I.A.

Madrugada

Gustav Mahler

Mary Martin

Mistah F.A.B.

Sir Mix-A-Lot

Mystikal

Nirvana

The Orioles

Outkast

Pearl Jam

Scoob Rock

Snoop Dogg (Snoop Lion)

Sonic Dream Collective

Britney Spears

Naomi Striemer

Supertramp

James Taylor

Wham!

Lil iROCC Williams

Bill Withers

Youngbloods

9 Milli Major

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Happy Autumn!  I hope you enjoy the cover photograph.

Wishing everyone a surprising and happy Wednesday.   

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Preying On Songwriters, My Winter Vacation & Re-Gifting

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I’ve been gone from this space (my blog) for way too long, so long that readers have scolded me and told me to get back to writing.  Wow – that was very nice to hear.  I didn’t want to be gone this long but there were substantive reasons for being out of cyberspace.

For one, I decided “at the 11th hour,” to leave the lovely Wingaersheek Beach and drive south to be with friends in Nashville for Christmas.  That, I did after a fun stop in New Jersey.  I left on the afternoon of December 23.  I ended up spending more than a month in Nashville, so long that I actually found a house I wanted to buy, put an offer on it the first day it was for sale, and took ownership of it 30 days later!  The Dwelling caught my eye on January 6, I made an offer January 6, and officially owned it on February 6.  It’s a much more involved, fun, foolish and complicated story than that but I can tell you more when I see you.  (By “you,” I mean any interested reader.)

*  *  *  *  *  *  *  *  *  *  *

And now to get back to music and an issue about which I care deeply.  Songwriters.  Not composers, in this instance, but songwriters.  (Not all songwriters – just songwriters who have been taken advantage of, with or without a preposition at the end of a sentence.)

I was reminded again recently how songwriters have so many things going against them.

The public is never pleading  –  “PLEASE let me hear from songwriters.”  No.  The public wants songs and doesn’t care about the nameless person behind the song.

The public loves stuff for free.  Why pay songwriters?  Aren’t they rich?  Don’t they write songs because they “receive” these songs (for free)?  (From God?)  (They are “gifted,” so they didn’t have to work – they simply received a pre-formed, pre-packaged “gift” and gave that “gift” to those who wanted it.  (These “gifted” songwriters, perhaps, were like the unsophisticated, uncouth Giver who simply Re-Gifts at Christmas time.)

Record labels do not want to pay songwriters.

Recording artists do not want to pay songwriters.

Radio (AM/FM as well as Internet) does not want to pay songwriters.

Sometimes publishers don’t want to pay songwriters.

Some famous recording artists have refused to record songs by songwriters unless the recording artist can be (dishonestly) listed as a songwriter and receive royalties as if s/he had written the song.

But I want to begin to discuss a different problem from those.  Several of the problems above get a lot of publicity and are well-known.  I want to get to a very serious problem that gets almost no publicity.  In fact, this problem is usually shrouded in mystery.  Sometimes the mystery – the “secret” – even has legal protection mixed in – “sign this confidentiality agreement if you know what’s good for you.  If you ever want to happy hour in this town again, you’ll do as I say, sign here and beg me, ‘THANK YOU SIR, MAY I HAVE ANOTHER?'”

It can be very difficult for songwriters.  As Morris Levy once said,

“You want royalties, GO TO ENGLAND.”

H E R E    I S     T H E     P R O B L E M     A S     I    S E E     I T 

Sometimes the songwriter’s team members are playing for a different team, or perhaps playing a different sport.  What I mean can be illustrated in a situation like this involving Songwriter(s) A and Songwriter(s) B.

Songwriter A’s publisher and/or attorney receive(s) a letter from songwriter B’s publisher and/or lawyer telling Songwriter A that her/his new song has ripped off or infringed or copied or stolen Songwriter B’s song.  Publisher A/Attorney A informs Songwriter A that we better fix this.  The way to fix this?  Songwriter A simply and quickly needs to fork over half of A’s copyright and future royalties on his/her song, and make sure that Songwriter B’s name appears everywhere that Songwriter A’s name appears on this song.  All future royalties will be split between A and B.

Or another sharing scheme could be worked out.  If not 50/50, perhaps 55/45, 60/40, 65/35, 75/25, etc., and the larger percentages could be assigned to Songwriter B.  Songwriter A might not only lose a lot now and for generations of nameless/faceless descendants (copyright is nearly eternal in length), but Songwriter A might get marked as an easy mark for others to attack in the future.

Why should this happen?  Can someone simply assert that you, the Songwriter, have stolen someone else’s music?  Does the fact that someone alleges theft make it a theft?  Are you guilty because someone with more (A)  power, (B) influence or (C) money (A, B, C, A+B,  A+C, B+C, A+B+C) asserts so?  Does that more powerful person have any alternate and/or better ideas?  Has that more powerful person investigated other solutions?  What can you, the Songwriter, do?  Do you admit to the “facts” with which you have been confronted?  Is there a loved one, friend or family member who can help? Do you need emotional help?  Do you need financial help?  Do you need legal help?  Do you need MUSICAL help?  Or do you need every kind of help just mentioned?

In my next post, I will expand on scenarios like the above and pose much better resolutions.  Shortly after that, I’ll name names.  I will discuss a specific situation, explain why it was completely WRONG, and explain why I know much better ways of handling similar situations.  As always, I welcome your input.  If you are a songwriter who has been so bereaved, please tell your story here.

ANNUIT COEPTIS for now