The first of the month (August 2016), the Department of Justice issued a summary of findings with regard to two court orders that govern the operation of two of the U.S. performing rights organizations (the “PRO’s”), ASCAP and BMI.  If it stands, the decision will also affect the third PRO, SESAC.

Songwriters and music publishers around the country were horrified with the DOJ findings, as were the PRO’s, with many songwriters claiming that they would now have to refrain from co-writing with songwriters belonging to one of the sister PRO’s.  This article will examine the logic of the reaction by the music community.  Is the proverbial sky falling, or will this event pass into obscurity and irrelevance?  We’ll sort out what all this means in this article.

As an aside, if you were not fortunate enough to tune into last night’s episode of my friends Heino and Scott with The Music Row Show on WSM 650, go to their website and check out the archives, as much of the information we share here was talked about in that radio program.  My appearance and conversation with The Music Row Show made me realize just how confused many songwriters will be about all of this legal maneuvering.  

Background

Before we look at the court orders, referred to as “Consent Decrees,” a little historical background will be helpful.  As I said, there are primarily three PRO’s, ASCAP, SESAC and BMI, and they were created in that order.   The two largest US PRO’s, ASCAP and BMI, make up the majority of the industry.  SESAC, by most accounts, has between 10-20% market share (although it is growing exponentially).

This is because ASCAP and BMI were both created out of controversy and strife and that highly competitive environmental produced some robust and resilient entities.  ASCAP arouse out of the Tin Pan Alley days.  Several of the key songwriters, IRVING BERLIN, VICTOR HERBERT and JOHN PHILLIPS SOUSA, began to see their songs being performed in restaurants, hotel lobbies and other venues, and they realized that they were not receiving royalties from these performances, a right that was first granted in 1897 and then incorporated directly into the 1909 Act.  These famous writers banded together to form the first coalition of songwriters and publisher, the American Society of Authors, Composers and Publishers.

Their efforts may have been received well in the music community, but the entities that used the music did not share that enthusiasm.  Certain NYC restaurant and hotel magnets, namely Shanely and Vanderbilt, questioned whether they were required to pay the composer for performance of a song in their establishments, even though they charged no admission for those performances.  The music, they maintained, was just a side show and not the main focus of what their customers were paying for.

The case, Herbert et al. v. Shanley et al. went all the way to the Supreme Court.  Writing for the majority, Justice Oliver Wendell Holmes ruled in favor of ASCAP and songwriters, saying:

Music is part of the total for which the public pays and the fact that the price of the whole is attributable to a particular item which those present are expected to order is not important.  It is true that music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere.

As a result, ASCAP had the stamp of approval from the highest court in the land.  They started an aggressive campaign to acquire licenses from venues where performances of music occurred, including broadcasters like television and radio stations. 

BMI arose as a direct result of ASCAP’s aggressive licensing activities.  From 1931-1939, ASCAP increased its royalty rates to radio and television stations over 400%, to the point where a group of broadcasters decided to get together and form Broadcast Musicians Incorporated in 1939.  They started signing their own composers and begin licensing non-ASCAP works for their catalog.  After a few years, most radio and television stations stopped using ASCAP music and would only use BMI-licensed music.

BMI and ASCAP have been adversaries ever since.  ASCAP, of course, had the upper hand, since they were first to market and arose out of the Tin Pan Alley environment.  ASCAP did not take kindly to being shut out of the lucrative broadcast market and the two organizations began a decades long fight for the music users.  This conflict ultimately caught the attention of the DOJ, who sued each entity under the Sherman Act (anti-trust) to address their comparative market power and balance the weight of power.  The result of the DOJ’s involvement were the consent decrees that, to this day, govern how terrestrial radio (Either AM/FM) digital rebroadcasts, and/or venues such as bars and arenas, license the performance of compositions.

SESAC, a European PRO at first licensing mostly classical, slipped into the U.S. in 1939 amidst all of this sibling rivalry and began licensing in the U.S., but as a private entity as opposed to operating as a non-profit like ASCAP and BMI.  They are not subject to any consent decrees and to this day remain under the radar, although the DOJ periodically audits them as well.

The ASCAP/BMI consent decrees defining what the PRO’s can and cannot not do – most notably, it requires them to issue “blanket licenses” to certain users.  These have been amended in 2003 and 1994 respectively.  The decrees also require that both entities offer licenses are similar terms and to similar clientele.  Importantly, for this discussion, the consent decree require that the PRO’s license to a user like Pandora one a request for license is made, regardless of whether a rate has been negotiated.  If the PRO’s and the user cannot agree on a rate, it is then presented to the “rate court” set up by the consent decree to decide.  The catch is that while all of this legal wrangling is going on, services like Pandora can continue performing the music.

The Recent DOJ Ruling

The gravamen of this issue happened in 2013 when several large music publishers, SONY ATV, EMI and Universal, among others, withdrew their “new media” licensing rights from ASCAP and BMI, leaving them to collect only their terrestrial right (read broadcasted radio or television).  They did this for a couple of reasons:  first, the consent decree do not allow the PRO’s to negotiate a market rate with digital streaming services; so, secondly, they did it in order to negotiate better deals directly with Pandora.  In 2013, Pandora negotiated a favorable percentage rate with Sony and Universal based on their gross revenues.

With their hands tied and major publishers going direct to digital stream services, ASCAP and BMI had no choice.  Streaming revenues have been increasing for years, and without these major players bringing in revenue, their revenues were decreasing.  So, in short, ASCAP and BMI went back to the DOJ seeking clarification with regard to the consent decrees with regard to operation and effectiveness.  Among other things, ASCAP/BMI ask that the decrees be modified to allow publishers/songwriters to “partially withdraw” their works.  This prompted a new review of the Consent Decrees by the Department of Justice that begin in 2014.  The DOJ released its findings on August 4, 2016 of this month.

The DOJ said that the ASCAP consent decrees doesn’t allow a publisher to withdraw partial shares.  It stated that consent decrees require a PRO “license to perform all the works in [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][its] repertory…” That meant, according to the DOJ, that it could not “rewrite the decree” to let publishers pick and choose how works are licensed and allow fractional shares.  This has great impact on the existing deals already negotiated with Pandora.  Specifically, the DOJ said:

The licensing of works through ASCAP is offered to publishers on a take-it-or-leave-it basis.

Specifically, the DOJ ruled:

1)  That the consent decrees would not be modified or abolished

2)  That the consent decrees to DO NOT allow “fractional” licenses that convey only fractional shares and required additional (read other PRO) to perform the works, i.e, the DOJ interpreted the consent decrees to require “full-work” licensing.

This new and dramatically different interpretation requires the PRO’s to convey licenses to radio, television, bars and digital music services giving them the right to public perform “100%” of their repertoires without the risk of adverse infringement.  This new “full-work licensing” principal applies even if ASCAP or BMI only represent a small fraction of a song’s copyright, which is almost always the case.  The problem, of course, is that ASCAP and BMI do not generally have the legal right to convey 100%!

Ironically, the DOJ findings state that “the current status quo system [used by the PRO’s]. . . has served the industry well for decades and should remain intact.”   This is confusing, since historically the PRO’s have licensed fractional shares, contrary to the DOJ’s findings.  A single song most often is written by multiple songwriters and those songwriters are generally affiliated with different performance rights organizations and only own a fractional interest in that song.  When a song such as All-American Girl, is written by Carrie Underwood, whose performance is licensed by BMI, with two other ASCAP songwriters, traditionally BMI would license 33.33% of the song and ASCAP would license the other 66.66%.  Now, according to the DOJ, either BMI and or ASCAP would have to license 100% of the song and report and pay the royalties for the other songwriters to the other PRO.  Imagine how these historic competitors view that prospect!

Herein lies a big part of this current problem.  If we look to copyright law, as we must, the answers may be clearer.  Under section 201(a), the author of song is the owner of the song.  But as all songwriters in Nashville are prone to collaborate, we have to factor in a second author/owner.  When that happens, the copyright law treats each owner as a tenant-in-common, just like two spouses who jointly own a house.  In other word, each one owns 100%.  So what does that mean?

That means that “[e]ach co-owner may thus grant a nonexclusive license to use the entire work without the consent of other co-owners, provided that the licensor accounts for and pays over to his or her co-owners their pro-rata shares of the proceeds.” United States Copyright Office, Views of the United States Copyright Office Concerning PRO Licensing of Jointly Owned Works (2016).  Of course, the songwriters can alter this default situation through signing a collaboration agreement, but no one ever does because that would “harsh the songwriting vibe.”

Furthermore, in a joint author situation, either author of the work may enforce the right to exclude others from using the work.  So, each author of a joint work “has the independent right to use or license the copyright subject only to a duty to account for any profits he earns from the licensing or use of the copyright.” Ashton-Tate Corp., 916 F.2d at 522 (9th Cir.1990). Accordingly, a joint copyright owner may not exclude other joint owners or persons who have a license from another joint owner. 

But there is another part of this analysis that can’t be ignored, and that is the doctrine of indivisibility.  Under the prior, 1909 Copyright Act, the author(s) could NOT divide the copyright, meaning that if the copyright was licensed, the entire copyright had to be licensed, not just one of the exclusive rights.  So, I would not be able to issue a print license apart from a license to perform the work.  The 1976 Act eliminated this doctrine and effectively made the copyright divisible.  Specifically, Section 201(d)(1) of the Act states that the ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law.  Further, the following section 201(d)(2) specifies that this principle of divisibility applied to each of the exclusive rights – print, adaptation, distribution, reproduction and performance – which could be divided, transferred and owned separately.

Now, for the first time, an author could license only the performance rights.  But more specifically, the author could license only a portion of his/her performance rights.  So, you see, the idea of transferring fractional shares of a copyright, or one of the exclusive rights of a copyright, is actually built into the copyright act.  This is something the DOJ ruling completely ignored in its analysis when it interpreted the Consent Decrees to require the PRO’s to offer 100% licensing of their catalog. 

The DOJ, however, was focused primarily on the user of the music, completely ignoring the creators.  For the user, the DOJ felt it was egregious to have to go to all three PRO’s to get a license to perform one work.  To be fair, the PRO’s have tiptoed gingerly around this issue for years.  A license from one songwriter/publisher to perform a work should, in theory, be sufficient.  That is, after all, the meaning of a non-exclusive license.  The industry has avoided the user aspect of partial rights grants for years, requiring each user to obtain a “blanket license” from all three PRO’s in order to perform each PRO’s catalog (and consequently, glossing over the fact that a license to perform one individual work from the owner of copyright would suffice to perform the work).  In this way, each PRO could distribute the royalties collected on the benefit of their members to each one respectively according to their own algorithms. 

That process may change if the DOJ’s consent decree remains in effect.  Each PRO would have to agree who collects for a particular license, and then credit the other with their share.  This would require each one to adjust their rates accordingly and account to and pay some of the royalties received to the other PRO’s.  While it can’t be stated definitively, one just feels that this process will somehow negatively impact the songwriters and publishers, and not the PRO’s or the venues.

Most people in the industry predict that application of this “full-work” licensing approach will throw the music industry in complete and utter chaos – and they’re probably correct.  But, as I said earlier, all hope is not yet lost.  First, the DOJ gave ASCAP and BMI one year to get their act together and start operating on the 100% licensing principle they outlined.   Second, for perhaps the first time in history, ASCAP and BMI are bedfellows (you know what they say of politics) in that they have agreed to a course of reaction:  BMI is appealing the DOJ’s ruling while ASCAP is lobbying Congress for relief.   ASCAP and BMI both announced that they would join forces to fight this common foe.

The president of BMI, Michael O’Neill, was quoted in the Tennessean in response:

The DOJ’s interpretation of our consent decree serves no one, not the marketplace, the music publishers, the music users, and most importantly, not our songwriters and composers who now have the government weighing in on their creative and financial decisions.  Unlike the DOJ, we believe that our consent decree permits fractional licensing, a practice that encourages competition in our industry and fosters creativity and collaboration among music creators, a factor the DOJ completely dismissed.

For her part, CEO of ASCAP, Elizabeth Matthews stated that:

The DOJ decision puts the U.S. completely out of step with the entire global music marketplace, denies American music creators their rights, and potentially disrupts the flow of music without any benefit to the public.  That is why ASCAP will work with our allies in Congress, BMI and leaders within the music industry to explore legislative solutions to challenge the DOJ’s 100 percent licensing decision and enact the modifications that will protect songwriters, composers and the music we all love.

Most people outside the industry will have no idea how significant it is that both of this PRO’s are cooperating with each other on this issue.  ASCAP’s and BMI’s joint efforts may serve to put pressure on Congress to address an aging Copyright Act and implement some of the recommendations made by the Copyright Office in 2015, namely, the creation of a mega “Music Rights Organization” or MRO that, among other things, licenses all exclusive rights of the copyright owner, including both performance and mechanical rights.  The Copyright Office also recommended an elimination of the Consent Decrees.  U.S. Rep. Bob Goodlatte, R-Virginia, who is chairman of the House Judiciary Committee, is expected to recommend changes to the Copyright Act that could be taken up on the 2017 Congress.

In the midst of all of this activity, SESAC is again quietly biding their time, acquiring Harry Fox (mechanical rights) and Rumblefish (a “record label” including digital performance rights) in preparation for becoming perhaps the first effective “MRO.”

No one truly knows the ultimate outcome of all of this but one thing is certain:  the history of performance rights organizations in America continues to evolve.  The copyright law is very complex and have evolved over the years since its passage in 1976.  That law took almost half a century to pass and there is no reason to believe that a new revision wouldn’t take just as long given the multiple competing and often conflicting interests of various stakeholders.  But patience is not the songwriter’s only recourse here:  write your elected representative in Washington and plead your case, as free speech is the only right that will make a difference in this fight.

 

 

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A special thanks to my client and friends at Direct Sound Headphones, who made the short trek from their headquarters outside of St. Louis, MO to Nashville to be a part of the show.  Nashville was hosting the  prestigious annual event for National Association of Music Merchandisers for the second year now.

In the photo I snapped, to the right, the president of Direct Sound, Steve Rois, is being interviewed about their new product, the HPA EXW-37 headphones with a wireless range and audio fidelity that surpasses anything else in the industry.  According to Jay Leopardi, a principal partner in Direct Sound, “These are the only wireless headphones on the market that do not suffer from a delay in transmission. “Steve Rois at NAMM

I am proud of my client and their product for several reasons:  first, the focus of their company is on prevent hearing loss using passive noise reduction technologies; second, the headphones feature modular and component parts that can easily be ordered by the consumer and replaced when they wear out; and finally, they are manufactured here in the U.S!

In addition to manning their busy NAMM booth, Direct Sound, Telefunken and NAMM teamed up for the second time to provide headphones for NAMM’s Tec Tracks Learning Center, where dealers could come and hear the latest insights on product promotion and sales from industry experts.

Direct Sound Summer NAMM 2016

Telefunken THP-29 at NAMM’s Tec Tracks

Because of the high noise levels on the NAMM floor from the exhibits, NAMM chose the Telefunken THP-29, made by Direct Sound, as the headphone of choice to let attendees hear the audio programs with the least amount of distraction.

Direct Sound has been in business for almost two decades, which in itself is a testament to the quality of their product.  But you should keep an eye on the company in the upcoming months, as it has been making several impressive endorsement deals and will be releasing a fantastic new product within the upcoming months.

Congratulations on a great show guys!

We recently wrapped up the exclusive songwriting agreement between my client, Logan Brill and Carnival Music.  Logan and her family are from the Knoxville area.  She moved here to pursue a logan1music degree at Belmont University, but ended up with a major in French and a minor in vocal performance.  Logan is writing with other Carnival talents such as David Nail, Troy Jones, Scooter Carusoe, and others.  Carnival is owned and operated, of course, by producer Frank Liddell (Miranda Lambert, Kellie Pickler, Lee Ann Womack).  Liddell recent took home the coveted Producer of the Year award from

the Academy of Country Music.  Carnival’s prolific group of writers is responsible for generating eleven number ones in the past decade, including cuts by Kenny Chesney, George Strait, Reba McEntire and the Dixie Chicks.   She has recently begun writing for her forthcoming project with producers, Matthew Miller and Oran Thorton.  Logan’s debut performance was at the Tin Roof at the head of Music Row, Nashville.  She also performed as the opening act for Edwin McCain at the Square Room in Knoxville.  Logan is set to begin extensively touring during the summer of 2012.

Follow her on Facebook and Twitter.  I expect to see great things from Logan in the near future.

Logan at the Square Room in Knoxville

imageBelmont University’s Mike Curb College of Entertainment and Music Business will honor the International Entertainment Buyers Association and one of its founders Harry “Hap” Peebles with the 2011 Robert E. Mulloy Award of Excellence.

Established in memory of program founder Bob Mulloy,the annual Award of Excellence recognizes an individual or organization that has achieved a level of excellence in the music business and entertainment industries with notable service to Belmont University and the Nashville community. Previous recipients include last year’s recipient, Vince Gill, and Donna Hilley, who was the first recipient in 2009.

Harry Peebles, or “Hap” as his friends called him, was one of  a founders of both IEBA, originally known as the International Country Music Buyers Association, as well as the Country Music Association.  Peebles started booking artists when he was 18 years of age.  He served the country industry over 60 years, working with Barbara Mandrell when she was only 11 years old.  As Ms. Mandrell says, he was “country when country wasn’t cool!”  In the formative days of country music, Hap booked some of the early favorites among country music performers into fairs and festivals, including such well known legends as Tex Ritter, Red Foley, Kitty Wells, Ernest Tubb, the Wilburn Brothers, Roy Acuff and many others.  Hap has been nominated for the Country Music Hall of Fame and inducted into the Hall of Fame in Arkansas, Louisiana, Oklahoma, Kansas, Colorado, Nebraska, South Dakota, and North Dakota, as well as named “Fairman of the Year” in several states.image Through his involvement with the industry, Hap is credited with giving big breaks to such stars as Johnny Cash, Roy Clark, Loretta Lynn, Carl Perkins, Jerry Lee Lewis, Ray Price and Johnny Horton, just to name a few.

The International Entertainment Buyers Association was formed by Hap and Hubert Long in 1970 as a non-profit trade organization for talent buyers, promoters, agents, managers and artists.  Hap and Hubert were two among a growing list of country music promoters – Hap in Wichita, Kansas and Hubert in Texas – that included the likes of Abe Hamza, Don Romeo, George Moffett and Smokey Smith – men who knew one another but rarely communicated their needs or struggles to each other.  Peebles and Long felt that the country music talent buyers needed some means of formal communication between the talent buyers, as well as a voice in the fair and festival industry, which didn’t see the potential of adding country music entertainers to the roster of the larger state fairs and therefore relegated country music to the smaller county and city fairs.

“The first meeting I knew anything about was held in Hubert Long’s office in Nashville,” says Wilson Sparks, who managed the Mid-South Fair in Memphis.

We met and talked about an organization for people who buy and sell  country music. I guess that was in 1970. I think we talked about it for six months or more before it ever got off the ground.

Don Romeo, whose Omaha-based agency bought a number of country music acts for fairs in the Midwest at the time, remembers that the other country music buyers were concerned then with many of the same problems that are being addressed today:

Hubert Long and Hap . . . were very concerned that the cost of talent was getting out of line, and they wanted a stronger voice in the industry.  By having a buyers’ association to get together to discuss these issues with the agents and the acts, they felt we would be able to get a fairer price and would be able to make our concerns known.

Johnny Matson, who worked with Hap at the time IEBA was formed, remembers that Hap’s primary consideration was a little bit of buying power for small producers.

At that time, the big agencies had the buying power, and the smaller agencies didn’t have the respect that we have now. As far as fairs were concerned, we usually got Sundays; the big agencies got the choice dates.  There would be one night where country music was featured.  I think that a few fellows who booked fairs and one-nighters saw a need for an organization where they could share ideas about what was going on within the country music industry.

Smokey Smith, another talent buyer based in Des Moines, recalled:

I think Hap’s idea was that we needed an organization of the people who were buying country music who could go to the managers and talent agencies and say, “Look, we need a better price on this talent—what if two or three of us go together and offer you a string of dates, could we get a lower price?”

Long died an untimely death shortly after ICMBA was formed, and it was Hap that took up the slack as a major force in its formation.  He served as president of ICMBA for six years and was chairman of the board for the organization for nearly twenty years.   By the time it celebrated its 10th Anniversary, the organization had grown from its humble beginning to include almost 300 members.  Peeples dies in 1993 at the age of 80.  In 1995, IEBA celebrated its 25th imageAnniversary with honors as Tennnessee Governor Don Sundquist commerated the occasion by proclaiming June 2-5, 1995 as “International Entertainment Buyers Association Week.”

Tiffany Davis took over the helm as Executive Director in 2008.  Commenting on the Mulloy Award of Excellence, Davis said:

IEBA is very proud to be recognized by Belmont. Our founder, Harry Peebles, left a great legacy in the talent buying community, inspiring many leaders like Don Romeo, George Moffett and JP Williams. IEBA is thrilled to help students through these scholarships while also honoring four great pioneers of the entertainment industry.

IEBA established the IEBA Scholarship Endowments Fund in 1991 in honor of Peeples.  Since IEBA has established three additional endowed scholarships for Belmont students in honor of Don Romeo, J.P. Williams, and George Moffett. Collectively the endowments represent over $300,000 in investments.

IEBA celebrated it’s 40th anniversary in 2010.  Currently IEBA has well over 800 members. The organization’s annual conference, attended last year by well over 500 people, stands alone in the entertainment industry by showcasing the most diverse entertainment options available while striving to be the go-to organization for the entertainment community by offering continuing education and networking opportunities to its members.

The presentation will take place at the Mike Curb College of Music Business’ Best of the Best showcase, March 26, 2011, 7 p.m., at Belmont’s Curb Event Center.


100 different cards

My friend and client, Dr. Jimmy Eugene Pollard, performed a sampling of his music in front of a sold-out crowd, performing as the opening act for Gary Allan’s immensely successful Get Off On the Pain tour.  The Pavillion at  the Coushatta Casino Resort welcomed over 4000 people for the February 19th event.  Allan’s tour has earned a spot on the New York Times Top 10 year end list and earned rave reviews in People, USA Today, Country Weekly, American Songwriter, Billboard, Associated Press among others.

Jimmy Eugene is most known for his interesting life story captured in his book, On the Journey Back.  Jimmy was a teenage runaway, joining the military after lying about his age at 17.  After service to his country, Jimmy returned to complete a degree in dentistry.  He serve another stint in the Navy, achieving officer status, and then retired.  Later, he entered medical school and became a maxillofacial surgeon, building a huge practice in Lake Charles, Louisiana (and another in Texas).  It was almost twenty years later that Jimmy started writing music.  He was in a severe automobile accident, injuring his spine.  While in traction, Jimmy had a dream and began hearing music for the first time in his life.  He learned to play the guitar and begin to write song.  Through a series of connection with Nashville, Jimmy became a client.

Saturday night’s performance was only Jimmy’s third time on stage.  “I was a little disoriented when the lights hit me up there,” Jimmy told me in his back stage motor coach.  Jimmy performed songs from his new album, Joy of the Journey. He was backed by a team of A-List players from Nashville, hand selected by Steve Tveit of Omnisound and veterans Pat McCrath on guitar, Dug Grieves on electric,  Dow Tomlin on bass, Dennis Wage on keyboard, and Steve Hinson on steel guitar, among others.  The Louisiana fans seemed to enjoy the performance.   A special thank you goes out to our musicians, and to Randy, Jay and all of the other fine staff members at Coushatta for making our visit there extremely enjoyable.  Loved the crawfish étouffèe!

Visit Jimmy’s website for more information.

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(Nashville, Tenn. – Feb. 1, 2011)  Thanks to a uniquely talented roster of writers and artists, Nashville-based publishing and artist development firm Identical Entertainment is making quite a name for itself in the music and entertainment industry.
Founded in 2008 by twin sisters Kathy Aberson and Sheila Bauer, the multi-faceted enterprise has benefited in recent months from a variety of song placement opportunities in music and television.  With a current staff of five writers and two artists, the company focuses primarily on songwriting and publishing, but also houses an artist development branch that is continually on the search for new talent.
“The motivation behind Identical Entertainment was to create a company that can recruit great writers and artists, develop them, cut some songs and then help facilitate their career by playing to their strengths,” says Identical Entertainment President Sheila Bauer.  “Everyone here is passionate about the same thing – music.  We’ve been so fortunate to find incredibly talented people to work with, and we’re all excited to see what that passion holds for us in the future.”
Identical Entertainment staff writer Deanna Harper is one of the writers behind the Pop song and YouTube sensation, “Justin Bieber’s Girlfriend.”  Performed by 14-year-old Michaela Wallace, the song has garnered nearly 1 million views in less than three months on YouTube alone.  In 2010, Harper enjoyed success with her song, “Feel You,” which was selected and performed as the official wedding song for the nationally televised Bachelor/Bachelorette wedding between Jesse Csincsak and Ann Leuders.

Canadian singer Jess Moskaluke released her debut single, “Amen Hallelujah,” after signing an artist and publishing deal with Identical Entertainment in June 2010.  Written by staff writer Tiffany Vartanyan, the song grabbed the attention of noted indie artist promoter Tyler Ward, who selected Moskaluke as his featured “Artist To Watch” in November 2010.  “Amen Hallelujah” has already received more than 300,000 hits on Ward’s YouTube channel and has charted on Canadian radio.  Moskaluke’s follow-up, “Catch Me If You Can,” was released through Ward’s site on Jan. 29.
Tonja Rose
, one of the company’s hybrid staff writer/artists, is releasing her debut single to Country radio in February, titled “Where Would Your Heart Be.”   Written by fellow Identical Entertainment writers Deanna Harper and Greg Johnson and released through Nine North Records, “Where Would Your Heart Be” is Rose’s first single from her album, The Heart of Me.
The Identical Entertainment staff is anchored by President Sheila Bauer and CEO Kathy Aberson.  Director of Operations Lindsey Tatham Brown joined the company in 2008.  Reach Identical Entertainment at (615) 530-2643 or admin@identicalent.com.  Direct mail to: Identical Entertainment, LLC, P.O. Box 120206, Nashville, TN, 37212-0206.
For more information, visit www.IdenticalEnt.com.

My belated Father’s Day gift this year was a brand, spanking new iPhone 4 32mb!  So, now that I’ve been using it for about two weeks, I decided to share my thoughts and insights, particularly since I’ve previously blogged about my love/hate relationship with Apple and the predecessor phones.  I am a staunch Windows 7 user, and have my doubts about the seriousness of anyone who uses the Apple operating system!  Just kidding really.

Without a doubt, the first thing you notice about the new iPhone is the superior clarity of tiphone4mainbigfront he 960×640 screen. It’s brighter, fonts are clearer, pictures more vibrant and, overall, it’s simply much more impressive.  Don’t’ take my word for it, hold one up next to your old iPhone and you’ll see the difference instantly.  The 480×320 screen on the older phones appear almost muddy by comparison.  Apple doubled the pixels per inch, and it shows.  They also increased the contract ratio to 800:1.  In the end, the resolution upgrade alone is worth the price of admission!

The next design element I noticed was the shape.  The new iPhone 4 is very distinct from its predecessors in its very UN-zen-like feel, stepping toward a more “slate” type approach.  That can be either a good or bad choice, depending upon your perspective, and how much you liked the original Zen-like design.  I personally really liked the “Zen Stone” feel of the original, with it’s rounded back and corners.  My previous model was the white 3g (oh, sorry Apple, I probably shouldn’t mention the “white” right now huh?).  That said, the new shape and feel have grown on me and I actually like the new aesthetics, although it did take some adjustments in my holding style.  The new model is much starker, with metal edges, creating an almost industrial feel (the very same edges that give the iPhone 4 it’s trademark reception problems).  The phone is more slender than its predecessors as well, which gives the misleading appearance of a smaller screen.  It’s not – actually they are identical in size at 89 mm.  The edges also give the appearance that the 4 is thicker than its ancestory.  Again, it’s not.  It’s actually shaved thinner – 2 mm to be precise!

Putting aside the incredible screen, the next real beauty of this new model is the software revisions.  Many of my faithful readers will recall my constant berating of Apple about the lack of multi-tasking, something the very first Palm Pilots could pull off with ease.  So, how many years and version upgrades have we been through?  Having poked at the giant enough, I will state unequivocally that Apple’s implementation of this mission critical component is very well done.  Two clicks on the home button and up pops a menu at the bottom showing all running applications and allowing you to move between them.  One can, for example, read a book and take notes, or time a runner and jot down the time.  I know, these seem like simple, ordinary tasks, but try that on an older iPhone!  One feature of multitasking that would be an improvement in future version, however, is the ability to shutdown all applications without having to individually close them.  After several hours of use, the multiple applications begin to pile up and exhaust valuable resources.  But, that caveat expressed, I am SO happy to have multi-tasking on my iPhone.  I was beginning to miss those days with my Palm.

Another one of my expressly desired features that did NOT appear on this new model is the week view in the calendar.  It might sound like a petty request, but in the business world, many people rely on the week view for advance planning and scheduling.  And please, don’t tell me about the “List” view – a more useless apparatus I have never witnessed – it is simply not a replacement for the week view!  Ironically, Apple HAS implemented the weekview feature on its enigmatic iPad.  I was so put out when I found this.  “So, why can’t I have it too?” I asked The “Genius” at the store.  She tells me it is planned for a future version, but I don’t know if I trust The Genius.  Apple’s sin is further amplified by the fact that because of its proprietary philosophy it will not allow third party software designers to access the code to their precious default programs, so no one can even design a work around!  Pocket Informant has a beautiful weekview in its application, but you are relegated to using Google Calendar, not the Apple default.  So, this complicates issues with Exchange servers and is not a good work around.  Ok, so enough of my bitching, let’s get back to the many things I LIKE about the 4!

Let’s talk folders!  Another sadly missing item was rectified by the new operating system by the addition of the foldering system.  Now, instead of 10 or so unorganized pages containing a hodge podge of programs, I have one main screen with my most utilized programs, and a page and one half of folders!  An organizational system in a Personal Information Manager, imagine that!  It’s truly great.

There are, of course, many other wonder additions on the iPhone 4 – the 5 mp camera and front facing camera, video conferencing, gyroscope, etc. —  but these are my initial thoughts.

Over the next few months, I will be sharing some of my favorite applications on the iPhone with you, but suffice it to say that the new iPhone is working out quite nicely.  I highly recommend an upgrade if you’re considering it and/or are waivering.  There is a a good comparison at Wikipedia.

Rep. John Conyers, Chair of the House Judiciary Committee brought the Performance Rights Act (HR 848) up for markup this morniJohn Conyersng. 

HR 848 created no small amount of disagreement among radio broadcasters, minority broadcasters, trade unions and civil rights groups.  However, a group  of minority artists, including Duke Fakir of the Four Tops, Dionne Farris and Jon Secada, recently sent a letter indicating support for Rep. Conyers and this legislation.  The letters stated in part: 

As minority artists, we support a strong and vibrant local radio industry. We know that minority broadcasters play a vital role in our communities. And we support efforts to create accommodations in the legislation for small, minority-owned stations. But the creation of a fair performance right cannot be delayed further. We have already waited far too long. “Not now” is not an acceptable answer.

To address the concerns of minority broadcasters, Conyers offered the following amendments at today’s markup:

Affordable payment for small, rural, nonprofit, minority, religious and educational broadcasters

· Any station that makes less than $100,000 annually will pay only $500 annually for unlimited use of music

· Any station that makes less than $500,000 but more than $100,000 annually will pay only $2500 (half of the amount in introduced bill) annually for unlimited use of music

· Any station that makes less than $1,250,000 but more than $500,000 annually will pay only $5000 (the amount in introduced bill) annually for unlimited use of music

Relief for current economic situation

· No payment for 2 years by any station that makes less than $5,000,000 annually

· No payment for 1 year by any station that makes more than $5,000,000 annually

Parity for all radio services

· Establishes a “placeholder” standard to determine a fair rate for all radio services that will encourage negotiations between the stakeholders

Cannot hurt local communities

· Assures that this legislation cannot affect broadcasters public interest obligations to serve the local community

Assures consideration of relevant evidence

· Evidence relevant to small, noncommercial, minority, and religious broadcasters and religious and minority royalty recipients must be considered by the Copyright Royalty Judges

Other minority and civil rights groups that sent letters expressing support for the act included the Leadership Conference on Civil Rights, Pennsylvania Legislative Black Caucus, Rhythm and Blues Foundation and the A. Phillip Randolph Institute.

The executive director of the musicFIRST Coalition, Jennifer Bendall, supported the committee’s decision:

“We applaud Chairman Conyers and Committee members for their work on the Performance Rights Act and for supporting artists, musicians and rights holders in their fight for fair compensation when their music is used by AM and FM radio stations.

The Performance Rights Act will bring fairness to artists, musicians and rights holders and one that’s fair to radio and its counterparts. It also includes accommodations for small and minority-owned broadcasters. musicFIRST looks forward to the next chapter and to Congress to ensure that U.S. artists and musicians receive the performance right they deserve.”

Now that HR 848 has cleared the committee, it will be brought in front of the entire House for debate and vote. 

Link to Politico Interview

As a follow up to my previous post on the subject, the radio widget above should play Politico’s interview with Smashing Pumpkin’s founder and frontman Billy Corgan following his testimony in front of the House Judiciary Committee in support of HR 848, the Performance Rights Act.

Corgan testified on Capitol Hill on behalf of the musicFIRST Coalition yesterday.  Corgan testified that the current sytems is “hurting the music business” because of radio stations’ failure to compensate musicians for performing their music.

My readers know my thoughts on this subject.  While I agree with Corgan’s overall sentiment, I stand by my emphasis yesterday that the legislation as it is written may be drafted in favor of the record labels more so than the performing artists. 

HR 848 should have a provision that provides for direct payment of royalties to the artists who performed on the sound recording and which specifically does NOT rely on the record labels to distribute these royalties “in accordance with the terms of the artist’s contract.”  (See my previous post).  This kind of language contained in the House version of the legislation at Section 6 only assures that the record labels would receive all the performance royalties and that performing artists would have to overcome numerous obstacles to ever see any of the additional income, inevitably leading to more disputes with the record label.   The current artists agreements with record labels simply do not contain provisions addressing payment of these types of royalties and, even if they did, the artists who have unrecouped balances on their ledger sheets would never see a dime. 

My proposal is that the current system for collection and distribution of performance royalties for musical compositions be utilized.  Specifically, why not allow BMI, SESAC and ASCAP to collect and distribute the performance royalties for sound recording copyrights on behalf of member artists, allowing these organizations to pay 50% of the income directly to the artists (the original owners of the sound recordings) and 50% to the record labels (the assignee owners of the sound recordings).  This structure is identical to the distribution of performance royalties for owners of the musical composition copyright.  It’s a systems that has functioned well since the turn of the 20th century and it is a systems that, overall, works fairly well. 

In general, members of the performance rights organizations have fewer royalty disputes with these entities over  than artists do with record labels, since these entities, for the most part, do not function as profit generators.  There is no doubt that this idea has some flaws as well, but in comparing the alternative, it seems to me that this would benefit the artists and musicians much more than giving the money to the record labels.

The House Judiciary Committee will hold hearings on H.R. 848 (this year’s version of HR 4789) tomorrow morning at 10:00 a.m.  Although the Committee’s website does not identify any witnesses at this time, I am informed by musicFIRST that Smashing Pumpkins’ founder Billy Corgan and Mitch Bainwol, chairman and CEO of the RIAA will be speaking on their behalf at the hearing.

Billy Corgan H.R. 848 was introduced to the 111th Congress by Rep. John Conyers on February 4, 2009 then referred to committee on the same day.  It was co-sponsored by Tennessee representative, Marsha Blackburn.  If passed, HR 848 would amend The Copyright Act (specifically Title 17) to provide “parity in radio performance rights” under the Copyright Act.  In other words, the Bill would grant a performance rights in sound recordings performed over terrestrial broadcasts (i.e., traditional radio broadcasts, not satellite).   S. 379 is the Senate’s complimentary bill, introduced by Senator Patrick Leahy.

The act has certain provisions to accommodate concerns by the broadcast industry, such as the provision which establishes a flat annual fee in lieu of payment of royalties for individual terrestrial broadcast stations with gross revenues of less than $1.25 million and for non-commercial, public broadcast stations; the provision which grants an exemption from royalty payments for broadcasts of religious services and for incidental uses of musical sound recordings; and the provision which grants terrestrial broadcast stations that make limited feature uses of sound recordings the option to obtain per program licenses. 

The Act specifically states that it will not adversely affect the public performance rights or royalties payable to songwriters or copyright owners of musical works.   In particular, the Act prohibits taking into account the rates established by the Copyright Royalty Judges in any proceeding to reduce or adversely affect the license fees payable for public performances by terrestrial broadcast stations. Requires that such license fees for the public performance of musical works be independent of license fees paid for the public performance of sound recordings.

The full text of the bill can be found at govtrack.us.

One provision I found interesting was Section 6, (1)(A), regarding payment of certain royalties, that states, in full:

A featured recording artist who performs on a sound recording that has been licensed for public performance by means of a digital audio transmission shall be entitled to receive payments from the copyright owner of the sound recording in accordance with the terms of the artist’s contract.

Emphasis added.  This last clause intrigues me.  What I find interesting about it is that under the current structure, the record labels own most, if not all, of the commercial sound recording masters, i.e., they are the “copyright owner of the sound recording.”  This clause entitles the “featured recording artist,” e.g., Madonna, Michael Jackson, etc., to receive payments from the owner “in accordance with the terms of the artist’s contract.” 

In most artists’ contracts, payments are based on a percentage of the gross revenues from sales of physical units – current artist contracts do not have provision for payment of performance royalties on the sound recording.  It would seem that under the Act as written, there is silence as to what happens in this instance where these specific payments of performance royalties are not addressed in the artist’s contract.  One possible remedy would be for the legislators to draft language that would apply, such as what they have done with regard to the “non-featured artists in subsection (B) of the same Section 6.   This Section 6 is not found in the Senate’s version of the legislation.

All of this makes me curious about what will happen to performance royalties that are paid under this Act to the owners of the sound recording copyrights, i.e. the record labels if there is no language in the artists’ recording agreements to specify as to what percentage the artist is entitled?  One thing is certain:  an artist who is not recouped under his artist recording agreement will never see any of these performance royalties under such time as his balance is recouped.

One proposal you might suggest to your representatives is that they consider a payment structure similar to that of the current performance rights organizations that collect and pay performance royalties for musical compositions, wherein one half of the royalties go directly to the songwriter and the other half directly to the publisher.  If this were the case under the new Act, half of the royalty payments would filter directly to the artist and the other half would go to the record labels.  If there truly is a concern about the recording artists not getting paid for his or her performances, this is the only method that would assure this happens.

If you are a recording artist whose performances are being playing on local FM and AM radios, you should investigate the impact this legislation will have on you.  Call you Senators and Representatives and ask them to keep you updated.