Since taking over Mary Beth Peters as Register of Copyrights in 2011, Maria Pallante has been listening and responding to the concerns of a number of her constituents, particularly those in the music industry, and it most certainly shows. In the last few months, several pieces of Maria_Pallantework product have been delivered by the Copyright Office and/or Congress that have significant impact on the music industry and, in particular, those of my readers who practice the craft of songwriting. If you are a songwriter, you should pay particular attentions to two of these things specifically. The first is the Copyright Office’s report, released in February 2015, titled Copyright in the Music Marketplace. The second, more directly aimed on the songwriting community, is the Songwriter’s Equity Act reintroduced to Congress in this term.

The Copyright in the Music Marketplace Report.

Anyone who works in the music or entertainment industry should take the time to read the full report, available here. The report begins in the Preface by pointing out that “both music creators and innovators that support them are increasingly doing business in legal quicksand” (Emphasis added). This “legal quicksand” that the Copyright Office references refers to licensing as it relates to both sound recordings and musical works, and the disparities that have developed over the past decade or so as a result of various amendments to the 1976 Copyright Act. For example, with regard to performance royalties for musical compositions, ASCAP and BMI have operated under consent decrees issued by the Federal Courts for years. In addition, the rate courts establish the rates that must be paid for public performance under what is referred to as a “fair market value” analysis in which the court attempts to determine the price that a willing buyer and willing seller would agree to in an arm’s length transaction. The court also gives substantial weight to antitrust concerns in this regard. For the more astute readers, you may be wondering about SESAC. SESAC generally operates as if it is subject to the consent decrees, even though technically it was not a party to them. BMI and ASCAP frequently call attention to the fact that there is disparate treatment as to SESAC. The process of setting rates for the performance rights organizations in the rate courts can be lengthy and complicated, leaving music publishers and songwriters complaining that there should be a more efficient way to set the rates.

As for mechanical royalties for reproduction of musical compositions in sound recordings, the Copyright Royalty Board (“CRB”) establishes those rates. For this purpose, the CRB operates pursuant to the compulsory licensing guidelines in Section 115 of the Copyright Act, using the four‐factor, public policy‐oriented standard in section 801(b)(1). Not complicated at all right?

That brings us to Section 116(6) of the Copyright Act, which provides royalties to sound recording authors for digital transmissions of their works. The rates for the digital performance of sound recordings is proscribed in Section 114 using dramatically different standards, depending on the type of use. This the reason royalties received from Spotify look so much different than royalties received from Sirius or terrestrial performances. Older services such as Sirius XM, the only remaining satellite service, and Music Choice or Muzak, the only remaining subscription services, are governed by the same four‐factor standard as mechanical reproductions of musical works subject to compulsory licensing under section 115 as regards royalties. According to SiriusXM’s own website, the “U.S. Music Royalty Fee” for 2015 was 13.9% of the subscription fee charged for a particular service. That fee is placed into a fund that is used to pay royalties. Meanwhile, royalty rates for Internet radio services and newer noninteractive subscription services, and for all ephemeral recordings under Section 112 regardless of the type of service, are established under the so‐called “willing buyer/willing seller” standard, which many believe yields more market‐oriented rates than those established under section 801(b)(1).

So what about Spotify, you may ask? Spotify is, by far, the largest interactive streaming service available in the marketplace, and in many ways sets the tone for what a “willing buyer” is willing to pay. According to its response to the Copyright Office’s Notice of Inquiry, it pays out “70% of all money it receives to rightsholders.” But those songwriters who have received paltry royalty checks from Spotify revenue might question the accuracy of that statement, wondering why they don’t see more. That is because Spotify doesn’t pay on a “per song stream” model, as royalties get calculated when it comes to mechanical uses. Rather, they set aside the royalties and the total royalty pie is split among all rights holders based on the percentage of total Spotify streams their songs garner. But according to a New York Times article, the company does, in fact, calculate the per rate royalties, estimating that the average song generates between $0.006 and $0.0084 per stream in royalties. That is why, to songwriter in particular, this may seem like a pittance. That’s why Taylor Swift recently announced that her new album would not be available via Spotify. But Spotify’s counters these objections, producing data that it says illustrates that the numbers really do add up for big artists such as Swift. The company reports that the most-streamed album on the service each month typically generates more than $400,000 in royalties.

Finally, with regard to performance royalties, musical composition copyright owners enjoy performance royalties froRoyaltiesm terrestrial radio while the owners of sound recording copyrights do not. The radio industry has successfully convinced Congress on numerous occasions that it operates on a “quid pro quo” basis with the record industry so that there is no need for royalty payments. After all, without the marketing that radio provides by playing the records, there would be no hit records. This may seem like an antiquated loophole in the system, because it is. There is no reason why the owners of the sound recordings should not be compensated for performance over terrestrial radio, just as music publishers and songwriters are. This loophole needs to be closed to eliminate that obvious inequity.
So, as you can see, the rate setting standards under these various statutory licenses and consent decrees differ greatly, based on what rights are implicated and the use at issue. But even for arguably similar services, such as Spotify and SiriusXM, the structure produces inconsistent results and the royalties that are paid vary widely.
In addition to the disparity in setting royalty rates in the music industry, the report called attention to the fact that there is a general lack of transparency in regard to royalty streams and ownership. For the songwriter, the concern has always been that there is money being generated from the copyright that is not finding its way into royalty check. Now, with all of these disparate royalty streams being generated from new digital sources, particularly those involving direct deals between record companies and digital users, the songwriter legitimately feel as if those revenues are not being shared. For example, the labels ostensibly negotiated an 18% stake in Spotify, which is probably the real reason they love the service so much.

All of these concerns, among others, led the Copyright Office to articulate four guiding principles derived from their discussions with “stakeholder” during their research in regard to which it says it “appreciates and agrees.” The four principles are as follows:

  1. Music creators should be fairly compensated for their contributions;
  2. The licensing process should be more efficient;
  3. Market participants should have access to authoritative data to identify and license sound recording and musical works; and
  4. Usage and payment information should be transparent and accessible to rights owners.

However, the Office acknowledged that there was no consensus on how to achieve these goals, and in the end, developed some additional principles it believed should govern any future reform of Copyright Law:

  1. Government licensing processes should aspire to treat like uses of music alike;
  2. Government supervision should enable voluntary transactions while still supporting collective solutions;
  3. Rate setting and enforcement of antitrust laws should be separately managed and addressed; and
  4. A single, market‐oriented rate setting standard should apply to all music uses under statutory licensing.

If these principles are implemented, it would be dramatic changes in the way royalties are paid, collected and distributed. The Copyright Office was not kind to the compulsory licenses provisions under Section 115 of the Copyright Act, known to many as the “statutory royalty” provisions, proposing that we “sunset” these as they expire. The existing structures under Sections 112 and 114, on the other hand, it felt worked fairly well. There are various implications for organizations such as Harry Fox and others if these changes were to occur.

Overall, however, the report was fairly balanced, and songwriters should receive more favorable treatment from Congress if it follows these principles. It remains to be seen what Congress will do with the research developed by the Copyright Office in this report. That leads us to the next topic of discussion, and that is the Songwriter’s Equity Act, introduced in March.

Songwriter’s Equity Act

This Bill was originally introduced in February 2014, but died in committee. Now, it has been reintroduced by a bipartisan coalition to both houses of Congress and, with strong Republ5237697662_f8e465b716ican support and control, there is much more optimism. The Bill, introduced by Congressman Doug Collins (R-Ga), seeks to amend Section 114 and 115 of the Copyright Act to implement some of the suggestions proposed by the Copyright Office’s report. Orrin Hatch (R-Utah), a senior senator and member of the critical Judiciary Committee, co-sponsored the legislation and has frequently been an advocate for songwriters. For one thing, it would allow the royalty courts to adapt the “fair market rate” standards when setting mechanical license rates under Section 115, and allow them to consider royalties paid to recording artist when setting rates for songwriters under Section 114. Most people believe that this would be a more profitable structure for songwriters and music publishers.

When testifying in front of Congress in regard to last year’s identical legislation, National Music Publishers Assn. president David Israelite said that

[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”][t]hree-quarters of a songwriter’s income is regulated by the federal government. While most property rights are valued in a free market, songwriters have suffered under a system that devalues their work and takes away their most basic property rights.”

Israelite applauded the legislatures for standing up for songwriters.

As the Copyright Office report on music licensing discussed above recommends, if songwriters’ royalties must be regulated by government, then they should at least be based on fair market value. Collins told the Tennessean that tell songwriters and publishers that “they’ll have a friend [in me] who’s going to fight for this bill.” The bill has support from both sides of the aisle, including not only Tennessee Senators Lamar Alexander and Bob Corker, but U.S. Rep. Jim Cooper and U.S. Rep. Marsha Blackburn, R-Brentwood.

In conclusion, I think it’s about time Congress considered the equitable situation of the songwriter, the lowly work horse of the music industry.  NSAI has been saying for years that “it all begins with a song,” a phrase that was quoted in the Copyright Report, by the way, and that is, in fact, where it all begins.  But over the past decade, the significance of the songwriter has diminished and the loss revenues from record sales created by illegal downloading made it impossible for most to practice this traditional craft.  These legislative efforts seek to remedy some of that loss.

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Since it was commercialized in 1995, the Internet, particularly the World Wide Web, has spawned many Federal laws to regulated activities conducted in Cyberspace.  I developed the following presentation for my Cyberlaw class at Belmont University’s Mike Curb School of Music Business:

 

 

STEVEN PAUL JOBS

February 24, 1955-October 5, 2011

“Steve was among the greatest of American innovators – brave enough to think differently, bold enough to believe he could change the world, and talented enough to do it.” 

– President Barack Obama, October 5, 2011.

You can’t connect the dots looking forward; you can only connect them looking backwards. So you have to trust that the dots will somehow connect in your future. You have to trust in something — your gut, destiny, life, karma, whatever. This approach has never let me down, and it has made all the difference in my life.

[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”][T]he only way to be truly satisfied is to do great work.  And the only way to do great work is to love what you do. If you haven’t found it yet, keep looking. Don’t settle. As with all matters of the heart, you’ll know when you find it. And, like any great relationship, it just gets better and better as the years roll on. So keep looking until you find it. Don’t settle.”

Death is very likely the single best invention of Life.  It is Life’s change agent.

[Stanford Commencement Address, 2005]

"My model for business is The Beatles.There were four guys who kept each others, kind of, negative tendencies in check. They balanced each other, and the total was greater than the sum of the parts. And that’s how I see In this Jan. 15, 2008, file photo, Apple CEO Steve Jobs holds up the new MacBook Air after giving the keynote address at the Apple MacWorld Conference in San Francisco. business. You know, great things in business are never done by one person. They’re done by a team of people.

["60 Minutes" interview, 2003]

“That’s been one of my mantras — focus and simplicity. Simple can be harder than complex: You have to work hard to get your thinking clean to make it simple. But it’s worth it in the end because once you get there, you can move mountains.”

[BusinessWeek, May 25, 1998]

In my mind, Steve jobs was one of the most original thinkers of our time.  When I teach copyright law at Belmont University in Nashville, one of the first lectures I deliver to my students regards the origins of an idea, that sliver of creativity that some lucky few of the human race get to reach up and grab, an original idea.  Some philosophers and thinkers would have us believe that there is no such thing as an original idea, that everything had a predecessor.  Even Solomon is quoted as saying that “there is nothing new under the sun.”  Any truth in that philosophy is obliterated by the life of a man like Steve Jobs.  –Barry Neil Shrum, Esquire

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Let me preface this post by stating unequivocally that I own both the original iPhone 4 and the iPad2, and I recently purchased both a Macbook Pro and Air for my son and wife respectively, so I am not by all counts an anti-Appleit, although I still use an Intel-based desktop machine at work, where I do most of my serious work. 

But seriously, Apple, do you really think this new product release was a good idea?  How long have rabid Apple fans been waiting for yesterday’s announcement from the marketing saavy technology gurus that you have taught us you are?  Millions of faithful minions waited in anticipation, with bated breath, scouring the blogs for any leaked news of the brand spanking new “iPhone 5”: rumors of sleek new teardrop designs and a larger edge to edge screen with higher resolution circulated around the blogosphere for months.  There we photos of cases from manufacturers showing a larger body design.  There we photographs of mockups of the new “iPhone 5.”  There were SKU’s from Best Buy and Amazon showing the new pricing structures.  None of these stories or photographs were leaked accidentally on purpose, I’m sure.

So what was the reward for the patience of the inquisitive Apple fans?:  an incremental hardware update that merely catches up to the technology Android phones have had for many months now, together with an AI-based voice-recognition software technology purchased from the third party upstart Siri!   Not even enough to really get the full treatment of Tim Cook – responsibility for discussing the new phone fell to a SVP!

You would think that this seemingly obvious faux pas would put some serious doubt in minds of the Apple zealots who have sworn their blind allegiance to the house that Jobs built (Applebots,as I like to call them)?  But even as Apple’s stock declines in response to the announcement – Wall Street was not fooled – I’m sure millions of these Applebots will march happily into the squeaky-clean Apple Stores to purchase this pitiful excuse for an actual upgrade. 

So what exactly are the specifications of this new iPhone?  It is the iPhone 4 with an upgraded duo-core processor and an 8 megapixel camera (with “improved optics”).  That’s it.  Nothing earth shattering right?  Nothing, as I said, that Android phones haven’t had for many months now.  There were at least four Android phones in the U.S. marketplace that had these specifications six month ago.  Oh yes – lest I forget – the new iPhone 4s boasts an “improved” operating system – iOS 5 – that “introduces” Siri – an artificial intelligence-based software it purchased just a few months after the upstart company of the same name released the iPhone version of the application!  

I don’t know about you, but I tried Siri on an iPhone 3s many moons ago and quickly deleted it from my apps for lack of interests.  Still, it’s different Apple says, because we’ve integrated into the OS.  Many pundits – not paid I’m sure – are calling Siri a revolutionary product:  a “most exciting” artificially intelligent personal assistant app built into the operating system.  One blogger even dared to credit Apple with a “mind blowing” prophecy of the advent of this kind of interactive voice/touch technology back in the 80’s with the release of a video called “Knowledge Navigator” (see this Techcrunch post by Rip Empson).  Another blogger describes the software release as a “world-changing event.”  Is it now?  Let’s explore that assumption:

Siri started operations over four years ago, in December 2007.  It didn’t receive serious VC capitalization until late 2008 – though that’s not bad for an upstart.  The application was released without much fanfare and, as I said, had less than stellar performance as an app.  Nonetheless, Apple acquired the company in late 2010, in the midst of the growing rumor grist about the iPhone 5’s impending release in June 2011 (Apple’s old release schedule). 

So, my question to the bloggers who acclaim the amazing merits of Siri is this:  If Apple had the vision of this kind of application when it built the prototypical “Knowledge Navigator” in the late 80’s, why wasn’t it incorporated into their early devices (read, failures?) such as the Apple Newton?  Better yet, why wasn’t something similar incorporated into earlier versions of the iPhone?   Ah, you might argue, the technology hadn’t been invented yet.  This is new stuff from the minds of Apple.  They ad the prophetic foresight to recognize the merits of Siri and purchase the product.

Not so fast.  If we are going to bestow the moniker of to prophet on anyone with regard to the oracle of artificial intelligence, let’s start with Gene Roddenberry, whose tremendously successful Star Trek series foreshadowed humans talking to reasonably intelligent on-board computers that could understand, analyze, evaluate and respond to instructions better than any iPhone app – and long before the late 80s!  “Computer, what is the weather going to be like on Alpha Centauri?”   A sweet voice replies:  “Captain Kirk, the temperature on Alpha Centuari is approximately 5790 Kelvin.”  Or how about George Lucas, who in terms of a “Knowledge Navigator” conceived of C-3P0 years prior to Apple in the movie Star Wars.  C-3P0 was the lovable “protocol droid” who was fluent in over six million forms of communication, and interacted with humans to assist them in understanding etiquette, customs and translations as they gallivanted around the galaxy.

But, in terms of real world application and, dare I say true prophetic vision, let’s get really serious and discuss the work of John McCarthy and his team at Dartmouth College beginning in the mid 50s!  That’s when artificial intelligence was more than just prophesized, it was actually conceived, designed and implemented.  Indeed, some would maintain that the field of Artificial Intelligence was actually born there in Hanover, New Hampshire.  McCarthy and his team designed systems that would ultimately speak English better than most Americans and deftly work out complex mathematical problems and verbally solve intensely sophisticated logical theorems.  By comparison, Apple’s latest iteration of Siri is no more than the most recent iPhone version of that “Hello Teddy” bear that was so popular in the 80’s!  “Let’s play a game.”

One last gripe of mine that is slightly off topic:  why on earth, Apple, would you release a new iPhone model that IS NOT 4G COMPATIBLE?  Where is your sense of being a leader in cutting edge technology?  I understand, you don’t have to be.  You’ve sold your product to your minions of Applebots and you will continue to do so:  but don’t you have any pride?

Now, if I take a moment to step down from my soapbox, l can say that I see the tremendous value of Siri, and have as one of the early downloaders from its humble beginnings as an app.  But where I have to part ways with the Applebots is when they start describing the application as “earth shattering” and “mind blowing.”  What McCarthy and his team was mind blowing.  That research was years ahead of its time when computer technology was still in its nascent phase. 

In fact, I question whether Siri even has enough pizazz to sway those patient early adopters who have been waiting for months to purchase the “new” iPhone.  This is why I ask “Siri-ously Apple?”   Now, those poor misled people are left with only two options when it comes to the purchase of a new phone:  (1) buy the incremental upgrade to the iPhone 4 or (2) wait 8-12 months for the real iPhone 5 to be released.  The problem is, if they do wait, these people will still have no certainty of what features the next release will have or whether it will be yet another incremental upgrade (perhaps with 4g capabilities, hmmmm?).

And that brings me to crux of my point at last:  there is a third real and very viable option:  they can choose to buy an Android!  Why wait for the new technology that might be on the iPhone 5 in 6-8 months when the technology is here right now.  No longer are Android phones second fiddle in terms of design.  They have really nice, 4+ inch screens with super amoled screens and dual core processors boasting performance beyond that of the iPhone. They have – Apple forbid – external storage.  The can run flash programming, which is still a prominent feature of the web, despite Apple’s stubborn refusal to incorporate it into their phones (ask yourself, why can an Apple desktop run flash programming, and yet an iPhone or iPad cannot?).  Many model are, in fact, vastly superior to anything Apple has on the market.  In fact, as of August 2010, Android sets overtook iPhone sales by a margin of 27% of all U.S. phone sales as compared to 23% for Apple (Source: Nielson Company).   Judging from initial reports about the disappointment over Apple’s latest offering, this trend is likely to explode in the next few months as Android manufacturers begin to release their latest offerings for the holiday season.

But, a true Applebot may say, what about the millions of apps that are available for the iPhone?  Recently reports indicate that there are approximately 400,000 apps available for the iPhone as compared to just over half of that for Android as of this month.  If you remove all the really useless apps from Apple – tilting beer mugs, fart machines, etc. etc. – then the numbers are even much closer than that.  There are very few productivity applications that are available on the iPhone which are not available for the Android.  The Android even has a slew of artificial intelligence based applications that can perform many of the same functions as Siri, although not as integrated into the system.  Finally, if we count in terms of downloads, Android is actually the winner:  it overtook iPhone last month with just over 8 million applications downloaded.  So, this is not such an issue anymore.

Bottom line:  Apple is losing its spark.  It is losing its sex appeal.  For the first time in a long time, it is losing its market saavy, which will soon show up in market share.  Alas, it is losing touch with the consumer.  Most in the majority are NOT Applebots.  They don’t blindly purchase anything Apple throws out for consumption the way teenagers blindly purchases Dr. Dre headphones that are vastly inferior to almost any other headphone on the market sold at a third of the price.  We evaluate.  We compare.  When he or she can buy, just as an example, a Samsung Galaxy IIs with superior specifications as compared to the latest, newest iPhone at the same or lower prices, the typical consumer begins to see the flaws in the fairy tale that was Apple.  And perhaps those millions that waited patiently for the iPhone 5 will look elsewhere, beyond the incremental, “catch-up” upgrade.  A recent article in the New York Times points out this strong trend in consumer behavior that is likely to be fueled by Apple’s incremental reasoning.  With it’s lackluster announcement, even Apple’s new deal with Sprint may not be able to save them from the consumers’ inevitable recognition of this new design for what it is:  a mere incremental upgrade.  It’s sad to see the iPhone fall into that same loop of incremental upgrades that both the MacBook and the Air have been stuck in for years.  Nothing exciting, just speed boosts and software tweaks.  Yes, it’s faster.  Yes, Lion is pretty.  Yes, like the app screen – but it’s nothing astonishing.  It’s sad that Apple is becoming nothing more than one of many.  They used to have an edge.  And perhaps that is the most sad fact of all:  Apple has shown us nothing in this upgrade that is earth-shattering or mind blowing.  And, after all, that’s what we have come to expect from Apple isn’t it?   Siri-ously!

A successful R&B/hip hop collaboration comes along very rarely, one such as I’ll Be There For You/You’re All I Need To Get By by Method Man & Mary J. Blige.  But come along it has.  My friend and client, Lance, has teamed up with Mista Freezy to produce what is sure to be a classic.  Lance and Mista Freezy are calling their collaborative efforts “Joker’s Wild,” an the resulting song, Long Hair has already created significant buzz on Twitter, Facebook and YouTube.

UPDATE:  The song is quickly becoming viral!  It hit the charts on “Tweet my Song” at 355 on July 27, then shot up to #44!  The song is available on iTunes and will soon be available directly from Lance’s website, Lancesongs.com

JW-img-02Lance is a singer/songwriter and one of kind in today’s music industry.  Lance is not afraid to be true to himself and his craft.  Many first recognize him by the hat on his head or the distinctive way he dresses.  Most, however, remember the lyrics he sings and the way his adoring fans sing along.  Each song he writes and performs seems ripped directly from his “heart and soul” and delivered with passion and emotion.  Soon you’ll be singing along too!  With the release of his album What you Make It on April 20, 2011, the world caught yet another glimpse of Lance’s soulful talent as he took it to the streets with a 64-date tour and television and radio campaign.

Brandon N. Foxx is commonly known as "Mista Freezy" throughout the musical industry.  He is definitely another talent to be reckoned with. Brandon’s production skills are exemplary, and his saavy as an artist reflects his extensive experience, despite his young age.

"Mista Freezy" first made an impact on the industry in 1999 at age 14 with a hit single "When we Ride out", and has been going full steam since then. Shows with Master P, Gucci Mane, Young Jeezy, Lil Boosie, and Beanie Siegel (just to name a few) add to his credibility as an artist, and as a producer, he has national placement. During this time frame of production and shows, Brandon also released two mixtapes, "Alone in the Game", and "Cohesive Player," which both received rave reviews.

In 2009, Freezy digitally dropped "GOD OF RAP", his 1st album, which sold several thousand copies and introduced him to the world. Germany and Sweden still have him ranked high in their playlists. He also attended SXSW,and did features in Spin Magazine and FADER FORT. In 2010, Brandon founded Money Hungry Mogul Musik Group, and made the transition from artist/producer to Owner/CEO, to further his interests on a global scale in the music industry and engage in the executive facet of the music business. Currently in 2011, Freezy is anticipating his 2nd album release, "Summertime Music" in June . Freezy has been certified with ASCAP since 2000 and has two Independent Hollywood music awards for best hip-hop production and best R&B production to his credit; Also, he has won best male artist at the Alabama Black Arts Festival in Huntsville, AL. Freezy also has had three major movie roles to his credit, most notably in CONSTELLATION. In essence, Brandon Foxx is multi-talented and the true definition of Southern Hospitality.

Both Lance and Brandon are home spun Alabama boys ya’ll!

Listen to Long Hair for yourself:

[youtube https://www.youtube.com/watch?v=XA9g_kjvvWU&hl=en&hd=1]
Long Hair, by Joker’s Wild (aka Lance & Mista Freezy)

By guest student writer, John Freund

Music production is simply not what it used to be. Behind every great record is great production, but just what that production entails continues to grow more complex with new technology and a changing music industry.

During its humble beginnings in the mid-20th century, production was extremely simple, quick, and required only a small handful of people. Artist and Repertoire (A & R) men personnel would discover and contract talent, record the mmusic-productionusicians with several microphones in several sessions, mix the project together and complete the mastered tracks in a few days[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”][1].

As the digital age arrived and production became more complicated and technologically demanding, it also required engineers, technicians, and a head record producer to guide the creative process of making an album through the tedious responsibilities involved.

Today, with digital audio workstation software like ProTools, GarageBand, and Logic replacing much of the work of a recording studio for a minimal fraction of the cost, production is being transformed yet again.

Since the dawn of the 20th century, sound recording and studio production in the music industry have been completely revolutionized due to major advances in audio recording technology. The first and most significant development in audio recording technology was Thomas Edison’s invention of the phonograph in 1877[2]. For the first time in history, people could enjoy sound without a live performance, and musical compositions could be preserved not only on paper, but in recordings as well. As the technological marvel began to catch on in American homes in the early 20th century, citizens could now choose what music they wanted to hear, when they wanted to hear it, and how many times to repeat any given song[3]. This new ability to preserve music would lead to a number of radical new facets of the music industry, such as collecting, broadcasting, producing, engineering, sampling, synthesizing, and manipulating sound – as well as manufacturing, distributing, and retailing physical reproductions of the recording. It also placed new demands and limits on composers, who had previously composed their music for sheet music. As 20th century composer Igor Stravinsky noted, “In America I had arranged… to make records of some of my music. This suggested the idea that I should compose something whose length should be determined by the capacity of the record”3. As Stravinsky composed to fit the length of a record, so too have countless musicians composed with a record or production in mind, rather than a live performance or sheet music. All of these new fields stemmed from the ability to record sound, and the world of music would never be the same.

Another notable development in recording technology was the stereophonic recording that replaced monophonic sound. First released to the public in the 1950s, the trend began to spread in the next several decades as recording became more advanced. Monophonic sound was ultimately forgotten (with some exceptions) and stereophonic sound, or “stereo,” became the standard. Using two audio channels instead of one and blending them together allowed producers to create the first versions of surround sound – closer to natural hearing, music in stereo is heard from both directions. Panning the audio tracks between left and right channels became a standard part of mixing, and is still in widespread use today.

As the century progressed and the stereo record player saturated the market, record labels such as Columbia Records, Decca Records, and Edison Bell replaced sheet music publishers as the solid base of the music industry.[4] The prominence of recordings gave rise to a new process, and eventually a new line of work: studio recording and production.

It was at this time that recording studios began popping up in Nashville, New York, and other American cities, and with them appeared new recording technology. Long-playing (LP) albums became the norm as record players were very popular, and the booming radio industry provided even more stimulus to the industry.[5] At this time, record labels hired A & R employees who discovered new talent and often record the talent and musicians at a studio until the track was mastered. The simplicity of the recording process at this time allowed a typically unofficial producer to record musicians on one track1.

So, tThe roll of the producer has come a long way since the 1950s and 1960s. What was once a simple task practiced by any sound-tech is now its own specialized profession.

Phil Ramone, a successful producer who began his career in the 1960s, offers his opinion on the production process: “There’s a craft to making records, and behind every recording lie dozens of details that are invisible to someone listening on the radio, CD player, or iPod.”1.

The first of these groups of details is the multi-track recording process. Recording music onto a 1 or 2-inch tape, producers could synchronize multiple music tracks next to each other on the same tape, thereby making music recordings more complex. Multi-track recording using tapes replaced single-track recording as the most popular way and then thrived with the introduction of cassettes in the 1960s.[6] Producers and engineers also began to splice sounds together from different tapes into one new tape that would be used in the music project.[7] Multi-track tape recorders also launched one of the most detailed aspects of a recording process – mixing. Mixing took advantage of the new recording technology by allowing producers to set separate levels for each track and add effects and processors. Mixing is the tedious and intricate stage of studio production that falls between the recording and the mastering. The complexities of the entire production process changed the quality music and held record producers to a higher standard.

Club music listeners and Disco lovers desired a crisp, pristine sound that required detailed mixing work and talented audio engineers[8]. During this time, some artists began involving themselves in production and becoming more knowledgeable in the studio, producers became even more valuable because of their expertise and objectivity.1 This expertise furthered the producer’s roll as a creative guide to the artist and general overseer of studio projects. They took on responsibilities and asks, such as selecting and arranging songs, controlling and guiding the musicians and workers in the studio, and seeing the project through each stage to its completion and perfection.9 Again, in the words of Phil Ramone,

“Someone’s got to think fast and move things ahead, and those tasks fall to the producer. Because he or she is involved in nearly every aspect of a production, the producer serves as friend, cheerleader, psychologist, taskmaster, court jester, troubleshooter, secretary, traffic cop, judge, and jury rolled into one.”1

After the cassette tape and multi-track recording, the next major technological breakthrough in the music industry came in the form of compact discs (CDs) and personal computers (PCs), which made their mainstream arrival in the 1980s. In 1982, Sony released “52nd Street” by Billy Joel as the first of a set of fifty CD titles.10 While the CD did not catch fire with the average consumer until late in tMusicProductionSchool-main_Fullhe decade, the revolutionary technology and widespread usage of computers across America soon transformed the way music was recorded, produced, and distributed. Approximately one hundred years after Edison’s phonograph, producers could finally store music digitally. CDs gave for more storage capacity than cassettes, and the ability for listeners to skip to any track instead of rewinding or fast forwarding. Also, this digital audio technology helped producers and engineers make accurate adjustments to any specific point on the track. This improved the quality of mixing and mastering, while also streamlining the production process.

Similarly transformative to the CD and another component of the computer was Musical Instrument Digital Interface (MIDI) technology. As the synthesizers of the 1970s were being used in cooperation with the compact computers of the early 1980s, domestic and foreign companies alike competed for the latest digital music and synthesizer technology. These synthesizers were utilized by many popular acts of the day, such as Paul McCartney, Duran Duran, The Who, and Herbie Hancock.11 Rather than transmitting an audio signal, MIDI spoke a digital language that enabled synthesizers and computers to connect with a MIDI controller or sampler. This language, or protocol, became universally accepted as a form of audio communications11. In other words, MIDI allowed people to manipulate a sample of one sound or bank of sounds, produce audio signals of the samples played at specific pitches and tempos with specific effects and sounds. This process of recording music using MIDI is called sequencing, and today, is the foundational idea of computer music notation software (also known as digital audio workstations). 12 People have made millions of sounds using MIDI technology, and it has been a key component of modern music for almost thirty years, making way for new genres, new software, and new engineering. MIDI is also used to create recordings that recreate a live sound. Paul Théberge offers this opinion of MIDI in saying, “…apparently for some listeners MIDI sequencing virtually returns the ‘aura’ of live musical performance to the medium of digital reproduction.”12 With the possible exception of the phonograph, MIDI has made the greatest impact on audio recording technology.

While computer and MIDI synthesizing were digitalizing the way music was produced, another digitally-based change was taking place. Many studios transitioned from the traditional analog mixing console to new digital mixing consoles. Early mixing consoles of the 1950s controlled few channels, while the new, massive digital consoles could meticulously control hundreds of channels if desired.13 In addition, mixing levels and settings could now be saved digitally, which was especially handy for live production and touring. The analog vs. digital mixing console debate is a heated one today, as many producers and technicians prefer analog consoles, the digital consoles are gaining popularity in today’s market.

Following the CD was the groundbreaking digital audio file which provoked yet another change in how music is consumed and produced. Streaming and downloading music from the Internet is today’s most popular music technology. The arrival of the MP3 made it easier for consumers to transfer music from CDs to computers14. CD-ROM drives in computers allowed for countless music listeners to share music with each other through ripping, burning, and transferring music files. Production came into play as more music was produced on computers, and digital audio medium knowledge was necessary to avoid losing part of the recording sound while creating such a file (8). With every new bit of technology, top-quality production requires more and more expertise than ever before. However, in today’s digital age, countless production projects are completed on personal computers without an ounce of expertise.

An astute view on the present and future trends of production, is provided by DJ, artist, and producer Moby in an interview with Lucy Walker:

The way that music is made has changed completely and it will continue to change. It’s become so much more egalitarian, democratic, and inexpensive. The way that music is sold, distributed, listened to. The role that music serves in most people’s lives. One the one hand music is so much more ubiquitous, but on the other it’s so much cheaper. So, making predictions – I have no idea. The only prediction I can make is that music has become so much more egalitarian and ubiquitous and the means of production have become available to almost anybody. Anyone with access to a computer can make music now. You download the software from the Internet and ten minutes later you’re making music that sounds just as good as anything you might hear in a nightclub[9].

Many artists choose to compose and record at home, opting to pay a few hundred dollars for solid recording software rather than employ the costly services of a professional studio. Some recording software, like the popular program Audacity, is available for free online, and as software technology progresses, it grows closer in quality to the sound of professionally recorded, mixed, and mastered music, making recording even easier for the home artist. Moreover, The American Home Recording Act, passed in 1996, specifies that computers are not recording devices, thereby releasing home studios from having to pay expensive royalties like a professional studio with professional recording equipment.14 All genres of music can be made on a computer, although some production-oriented genres (like techno and hip hop) thrive more than others in digital production.14 This new trend has shifted many projects from the studio to the computer and has also paved the way for new, smaller projects unaffiliated with a studio or label. The ease at which an artist can now record, mix, and master his or her own work grows each day, and music made in an unprofessional studio can often be hard to distinguish from its professional counterpart. Digital distribution through iTunes and other services has simplified the distribution process and allowed anyone to share their music with others for a small charge or none at all, further driving away the need to go through a studio and label distribution. For production studios and producers, as well as the entire record industry, this digital audio workstation availability has been harmful to businesses by reducing sales. As author Buskirk Eliot Van points out, “Computers mean fewer trips to the music store, since they can assume most of those functions. Granted, they will never replace guitars and other physical instruments, but thanks to sampling and music creation software, they come closer each year.”14 Music stores themselves are beginning to sell more digital music production hardware and software, as more and more customers are leaning towards computerized equipment.

Overall, audio recording technology has had a tremendous impact on the way music is recorded and produced. The roles of producers, studios, record labels, computers, and other such recording components have been rapidly changing throughout the last century, and will continue to morph along with the entire music industry. Many inventions, from the phonograph to MIDI, have re-defined the recording process. The industry has seen its mediums develop from discs and cylinders on phonographs, to LPs, cassette tapes, CDs, and digital audio files. Studio recordings have expanded from single-track monophonic sound to digital stereophonic sound with hundreds of channels and tracks. Virtually every process of composing, recording, and producing music can now be performed digitally on computers, and the ability to perform these processes is inexpensively available to the masses more than ever before.  In the words of Phil Ramone,

“The greatest interaction in the world is the creativity involved in making music.”1

imageWith vast accessibility and increasingly complex production tools in today’s incredible technology, there has never been more potential for creativity in music making. For as long as music is created and recorded, how it is made will be just as interesting a topic as the music itself. As continuously innovative as progressive rock, and as unpredictable as a jazz saxophone solo, the process of how music is captured will never stop changing.

John Freund is a working towards a degree in music business at Belmont University’s Mike Curb School of Music Business in Nashville, Tennessee.  This article is adapted from the a final paper John wrote for Professor Shrum’s  Survey of Music Business class as freshman in the fall semester of 2010.  John is from New Jersey where he is currently working as busboy at Daddy-o’ on the Jersey shore, having a great summer break! 

[1] Ramone, Phil, and Charles L. Granata. Making Records: the Scenes behind the Music. New York: Hyperion, 2007. Print: 15, xi, 9.

[2] "The Phonograph, 1877 Thru 1896." Scientific American (1896). Machine-History.Com. Web. 05 Dec. 2010: ¶ 1.

[3] Katz, Mark. Capturing Sound: How Technology Has Changed Music. Berkeley: University of California, 2004. Print: 9, 3.

[4] Shrum, Barry. “Record Industry Introduction.” Survey of Music Business. Belmont University. Nashville, TN. 15 Sept. 2010. Class Lecture.

[5] Shrum, Barry. “Brief History of Broadcasting.” Survey of Music Business. Belmont University. Nashville, TN. 04 Oct. 2010. Class Lecture.

[6] Morton, David. Sound Recording: the Life Story of a Technology. Westport, CT: Greenwood, 2004. Print: 141.

[7] McIntyre, Allyson L. Music Technology and the Twenty-First Century Compose: Are Computer-Assisted Notation Programs Becoming More of a Crutch Than a Tool? Compositional Concerns in the Technological Age. Diss. Belmont University, 2004. Nashville, TN, 2004. Print: 2.

[8] Moorefield, Virgil. The Producer as Composer: Shaping the Sounds of Popular Music. Cambridge, MA: MIT, 2005. Print.

[9] Miller, Paul D., ed. Sound Unbound: Sampling Digital Music and Culture. Cambridge,

MA: MIT, 2008. Print: 155.

Further Reading

"Do You Know The History Of The Mixing Console?" Music Magazine 69. 02 Nov.  2010. Web. 06 Dec. 2010F

Katz, Mark. Capturing Sound: How Technology Has Changed Music. Berkeley: University of California, 2004.

Manning, Peter. Electronic and Computer Music. Oxford: Oxford UP, 2004. Web. 05 Dec. 2010.

McIntyre, Allyson L. Music Technology and the Twenty-First Century Compose: Are Computer-Assisted Notation Programs Becoming More of a Crutch Than a Tool? Compositional Concerns in the Technological Age. Diss. Belmont University, 2004. Nashville, TN, 2004.

Miller, Paul D., ed. Sound Unbound: Sampling Digital Music and Culture. Cambridge, MA: MIT, 2008. Print.

Moorefield, Virgil. The Producer as Composer: Shaping the Sounds of Popular Music.  Cambridge, MA: MIT, 2005.

Morton, David. Sound Recording: the Life Story of a Technology. Westport, CT: Greenwood, 2004.

"The Phonograph, 1877 Thru 1896." Scientific American (1896). Machine- History.Com. Web. 05 Dec. 2010.

Ramone, Phil, and Charles L. Granata. Making Records: the Scenes behind the Music. New York: Hyperion, 2007. 

Shrum, Barry. “Brief History of Broadcasting.” Survey of Music Business. Belmont University. Nashville, TN. 04 Oct. 2010. Class Lecture.

Shrum, Barry. “Record Industry Introduction.” Survey of Music Business. Belmont University. Nashville, TN. 15 Sept. 2010. Class Lecture.

Shrum, Barry. “Studios, Musicians, Engineers, and Producers.” Survey of Music Business. Belmont University. Nashville, TN. 27 Sept. 2010. Class Lecture.

"Sony History." Sony Global. Web. 05 Dec. 2010. Théberge, Paul. Any Sound You Can Imagine: Making Music/consuming Technology. Hanover, NH: Wesleyan UP, 1997.

Van, Buskirk Eliot. Burning down the House: Ripping, Recording, Remixing, and More! New York: McGraw-Hill/Osborne, 2003.

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By guest author Mallory Trice

In 1926, the Warner Bros. studio in Hollywood introduced sound to film for the very first time causing a wave throughout Hollywood and around the globe as other major studios began the switch to “talkies” (pictures with sound). [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”][1] The world of film and sound had become one, and Hollywood never turned back. The success of film with sound has carried over into modern times, and anyone who watches movies can agree that sound, and especially music, is a significant part of any film. Several decades of great film music exist because of not only technological developments but also successful music licensing. If it were not for the development of technology in the twentieth century, the industry would not have sound capabilities for film, and if it were not for music licensing, the industry would be lacking in poignant, audience-capturing musical moments in film. Therefore, music licensing allows for greater potential for the success of a film and is thus essential to the impact of a film on an audience as well as on the film and music industries.

image_thumb1Music licensing would not be possible without certain key players in the film and music industries. The music supervisor along with music publishers and record labels, working together through negotiations, all make music licensing for film possible and thus contribute greatly to the overall potential for the success of a film. The music licensing process typically starts with the music supervisor, who is a connecting link between the film and music industries. Just as an A&R rep at a record label is in charge of placing the right recording artist with the right song, the music supervisor is responsible for “connecting the right song with the right moving image.”[2] First and foremost, the music supervisor has to honor the “creative vision of the director while still bringing in music that might compel people to be interested in the film.”[3] The music supervisor “handles the process of choosing, negotiating, and incorporating pieces of music into visual media,” as well as “choosing where selected music will be inserted.”[4] The supervisor also oversees budget, film spotting sessions, “live music scenes, music editing and mixing, soundtrack negotiations, cue sheet prep, and acquisition and delivery of all music rights to distributors.”[5] A music supervisor’s job ranges from project to project in degree of creative freedom in choosing what songs to put where in the film, but most of the time, the director’s vision and the film’s music budget will determine many of these choices for the supervisor. Therefore, the most important part of the supervisor’s job is getting the music properly licensed.

Before getting the music licensed, the supervisor must determine (per instruction from the director and/or studio) the budget allotted for obtaining music licenses, how long a particular song will actually be played in the film, and at what point in the film the song will be played (in the opening credits, end credits, or in the middle of the film).[6] The music supervisor must also know if he is trying to get a song cleared only for the festival or theatrical release or if the filmmaker or studio desires the negotiation to go beyond this. Typically these negotiations to get music cleared depend on the budget, but if the budget allows, the music supervisor will need to acquire rights not only to place the song in a film, but to place the song in trailers, on the internet, in theaters, on Video On Demand and subscription based services, and on the soundtrack that corresponds with the film.[7]

The music publisher is the other key player in the music licensing process for film. Music publishers are the main force behind the marketing and promotion of songwriters and their songs. They generate exposure and thus income for songwriters by pitching or song-plugging songs to potential interested parties including record labels and production companies for film and television.[8] Music publishers include Sony BMG, Warner, and EMI, and the music supervisor must figure out which publisher to contact (depending on what song they are wanting to get cleared) and then must request that the music publisher grant permission for the use of their song in a movie.[9] This permission can be granted or refused by the music publisher. If granted, then the music supervisor and publisher can move forward in negotiating a synchronization (or “sync”) license. A sync license, according to Signature Sound, Inc., “allows the user to reproduce a musical composition ‘in connection with’ or ‘in timed relation with’ a visual image”. Once the sync license is obtained, the supervisor has permission to use only the song (notes and lyrics) in the film but not the sound recording.

Therefore, in addition to obtaining a sync license, a music supervisor will often obtain a master use license through the record label or individual that owns the sound recording copyright to the particular song.[10] The reason two licenses must be obtained in most circumstances is due to the fact that “every recorded song contains two copyrights”—a musical composition copyright (for the notes and lyrics of the song) and a sound recording copyright (for the recording artist’s recorded version of the song).[11] In order to obtain a master use license, the music supervisor must contact the master holder (the company or person who controls the rights to the actual recording of a song), which can be anyone from a record label to an individual artist or band.[12] Like the publisher, the master holder can also refuse the request to grant the master use license.

If both the sync and master licenses are granted to the music supervisor, the song is completely cleared for use in the film and for use in other mediums for which the rights have been negotiated and granted. However, if the sync license is granted and the master license is not, the supervisor and filmmaker can opt to use the permission granted by the sync licensee to re-record the song to be placed in the film.[13] Without either the sync or master license, it is illegal to place that particular song in the film.

Along with obtaining licenses, the parties (the supervisor and the publisher, songwriter, and/or label) must negotiate the terms of the licensing agreement for each song. These terms include names and addresses, the date the contract becomes effective, specific uses permitted or restricted, length of time the agreement lasts, amount of compensation (royalty to be paid by Licensor), warranty “that the Licensor has the rights that the Licensor claims,” audit rights of the Licensor, “sanctions for breaching terms of the License,” credits to be given writer and publisher of the music being used/licensed, and the territory for use.[14]

One recent music licensing business model that has emerged on the international entertainment scene is found in a company called the Cutting Edge Group, based in London. The Cutting Edge Group, according to their website, “is the leading international full service provider of music for film, television and advertising industries.”[15] According to The New York Times article “A New Model for Film Music” by Michael Cieply, Cutting Edge, under chief executive Philip Moross, bought the music of The King’s Speech while the film was still in production. Essentially, on the one-hundred and twenty-four film projects they have contributed to, Cutting Edge acts as an investor by purchasing the music of the film up front, inflating the music budget for the film’s producers before music licensing takes place. In the case of The King’s Speech, Cutting Edge’s investment led the producers to bring renowned French composer Alexandre Desplat onto the project along with the London Symphony Orchestra to record the classical pieces in the film’s soundtrack (two choices they would not have had had they not sold the music to Cutting Edge).[16] The producers had to give up their rights to the music but it was a small price to pay according to one of the producers, Iain Canning, who explains that the producers just wanted to obtain “the music that would do the images justice” and they did just that.[17] So, in turn for giving up their rights to the music, the producers of The King’s Speech got funding to enhance the music of their film in the way that they wanted. And indeed, this exchange paid off. One of the twelve Oscar nominations that The King’s Speech received was for Alexandre Desplat’s score, something that may not have been achieved without the help of Cutting Edge.[18] As film music budgets have been dwindling due to the negative effects of piracy and cheap downloads, the Cutting Edge film music model could change that by giving producers (especially independents) an opportunity to increase their music budget, and thus their m

 

usic licensing leverage. This situation serves as an example of how efficient and creative music licensing for film can bring about much success for both the film and music industries.

Not only will well-chosen music impact the movie-going audience (and the Academy, like in The King’s Speech), but, according to an interview conducted by Rob Carnevale on indielondon.com with music supervisor Randall Poster (The Darjeeling Limited, The Royal Tenenbaums), music in film is “one of the most effective ways for musicians to gain an audience.”[19] When a music supervisor does his job well, the film, the artists whose music are in the film, and the audience of the film gain something they want. The film gains greater revenue potential. The artists in the film gain exposure and income from royalties, and finally, the audience can gain a meaningful experience as well as a potential attachment to a certain band, filmmaker, or film, creating a fan base for either artists, filmmakers, films, or all three at once. From the Warner Bros. introduction of t59418_1389751913862_1534020024_30892[1]alkies to The King’s Speech, audiences have experienced great musical moments in film, all made possible by music licensing.

Mallory Trice is a recent Belmont University graduate with a degree in Vocal Performance and Entertainment Industry Studies.  She resides in Nashville where she assists independent film productions as producer, assistant director, or production assistant.  So far, her favorite film soundtracks are The Departed, The Talented Mr. Ripley, and any Wes Anderson film.

——————————————————————————–

[1]Biagi, Shirley. Media/Impact: An introduction to mass media. 8th ed. Belmont, CA: Thomson Wadsworth, 2007.

[2] Howard, George. “Supervision.” 8 March 2007. ArtistsHouseMusic.org. 18 April 2011 <http://www.artistshousemusic.org/articles/supervision>.

[3] Howard

[4] Shrum, Barry N. “Music Licensing.” Entertainment Law and Licensing. Belmont University, Nashville. 18 Apr. 2011. Lecture.

[5] Shrum

[6] Paulson, Kristen. “Getting in Tune.” 1 July 2000. NewEnglandFilm.com. 19 April 2011 <http://www.newenglandfilm.com/news/archives/00july/music.htm>.

[7] Paulson

[8] “Music Publishing 101.” NMPA. National Music Publishers Association, 2010. Web. 27 Apr. 2011. <http://www.nmpa.org/legal/music101.asp>.

[9] Paulson

[10] Signature Sound, Inc. “11 Most Frequently Asked Questions About Music Licensing.”Signature-Sound.com. 19 April 2011 <http://www.signature-sound.com/11quest.html>.

[11] “Music Publishing 101”

[12] Howard

[13] Howard

[14] Shrum

[15] “Cutting Edge Group.” Cutting Edge Group | Home. Cutting Edge Group. Web. 27 Apr. 2011. <http://www.cuttingedgegroup.com/>.

[16] Cieply, Michael. “A New Model For Film Music.” 30 January 2011. The New York Times. 23 April 2011 <http://www.nytimes.com/2011/01/31/business/media/31score.html?_r=1&src=me&ref=business>.

[17] Cieply

[18] Cieply

[19] Carnevale, Rob. “The Darjeeling Limited–Randall Poster Interview.” IndieLondon.co.uk. 18 April 2011 .

 

 

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OR, What’s in a Name? Personal Names as Trade Names REMIXED.

By Barry Neil Shrum, Esquire (with Ashley Trout)

“That which we call a rose by any other name would smell as sweet.”

You may know this quote from William Shakespeare’s classic play Romeo and Juliet or from the more “pop-culture” reference by Anne Hathaway in The Princess Diaries, but chances are you’ve heard it countless times before. A name is a sense of originality and persona. It is what gives us our sense of identity and belonging. Some psychologists and sociologists believe that people with certain names, such as Curt, David and Jeff, receive more positive affirmations in life than persons with less desirable names, such as Agatha, Edgar and Mabel, which are more likely to evoke negative messages from teachers, professionals and acquaintances.  One study reported in the Journal of Educational Psychology used elementary teachers to grade identical papers on which random positive and negative names were attached and, as you may have guessed already, the papers with the negative names routinely received the lower grade.  Now you don’t have to wonder why supermodels and handsome actors have the most unique and appealing names!  But Shakespear was perhaps trying to imply that it is the essense of the rose that matters, not its name.

One of the more popular articles on my blog dealth with this issue: What’s in a Name? Personal Names as Trade Names, written by my then-colleague, James H. Harris III for what was then a physical newsletter version of Law on the Row.  In it, Jim elucidates the user of personal names a marks or trade names in business.  I felt it was time to reexamine the issue in the light of celebrities, and extend the discussion to the rights of publicity sometimes also associated with a name.  So, the subtitle of this article is appropriately What’s in a Name? Personal Names as Trade Names REMIXED.

PalinThe bottom line is that some names are more unique than others, but your name is what makes you uniquely “you.” So, what happens when someone “steals” our name?  With the billions of people in the world, the chances significant that there is at least one other person who is walking around with the same name as you.  Is there anything that a person can do to protect their “unique” identifier?

What happens, for example, when someone tries to take a name like “Heidi Klum” or “Albert Pujols”?  Key figures or celebrities that, when you say their name, a certain image comes to mind.   Or, perhaps the name evokes an event:  mention the name Charlie Sheen, and you will likely think not only about his image, but more about his recent escapades surrounding his departure from Two and Half Men.

A very good example of this power of a name to evoke strong messages is the name “Sarah Palin.” Whatever your political opinion, whether you love Sarah Palin the Alaskan Governor/Vice Presidential candidate or whether you hate her, the name “Sarah Palin” evokes very strong thoughts, associations and yes, feelings. Look at the photographs associated with this article.  What kind of feelings does that evoke in you?  If you thought either was the real Sarah Palin, you are wrong. They are both actually impersonators – and different ones to boot!  Yet, the images evokes the association and the feelings that make you think of the real Sarah Palin and her personal idiosyncrasies.

Sarah Palin is, of course, an American politician, formerly governor of Alaska, but best known as John McCain’s “choice” as the Vice President candidate for the Republican Party in the 2008 election. She is best remembered for her “cowgirl” image, folksy humor and distinctive, if annoying “wink”:   but she is often also associated with her completely ineffective interview with Katie Couric that some say cost the Republican party the election that year – an interview greatly publicized by an impersonator.

Since the 2008 election, Palin has become a fixture on the Fox News networks. Whether she is expressing her opinions about issues such as abortion or gun control, Palin is anything but shy in making her voice heard. The result of all this puimageblicity, of course, is that her television and cable “Q Score” has increased significantly.

With a character as polarizing as Palin, the result is often a proliferation of impersonators. It did not take long in the case of Palin – immediately subsequent to the interview – for Tina Fey to begin imitating the Couric interview on the Saturday Night Live. Impersonators, of course, trade off the personalities and idiosyncrasies of the imitated celebrity or public figure.  Since the days of Rich Little, and his current replacement Frank Caliendo, the art of imitation has been a popular part of American pop culture.  There is no doubt that Ms. Fey’s notoriety increased as a result of her performances. Imitation may be the most sincere form of flattery, but can it go too far?  According to Sarah Palin and her handlers, it already has!

Tina Fey was just the first in a long line of Sarah Palin impersonators. Many people have since taken it upon themselves to impersonate Sarah Palin and trade on her persona, including perhaps the best known of the tribe, Patti Lyons and Patsy Gilbert.  See, infra.  So, the question is “Can Palin stop this type of activity?”

Not to sit on the fence, but the answer is maybe! Perhaps more precisely, she will be able, in a somewhat limited way, to enforce certain aspects of her persona and, in an even more limited way, the use of name in connection with certain services and/or goods.

We must first look to trademark, not copyright, for the answer to our quest.  According to the U.S. Patent & Trademark Office, a trademark is a “word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” Whenever you see the Golden Arches looming in the air, you immediately associate it with the burgers made by Mickey D’s – both trademarks of the McDonald’s corporation.

Likewise, whenever you hear the name “Sarah Plain,” chances are you picture a woman with long brown hair, most likely pulled back, thigh-length boots, and a pair of Kazuo Kawasaki 704 designer eyeglasses. Perhaps you see that aforementioned hackneyed wink she was so fond of using during the televised vice-presidential debates with VP Joe Biden. Whatever you see, the image of Sarah Palin is a very unique and distinctive image. And, more importantly, it is an association engrained in our minds.

So, since the image and name are so synonymous, does it follow logically that Sarah Palin can copyright her name? According to U.S. Copyright Law and historical interpretations thereof, it is well-established answer is “no, she cannot.”  Since its creation by our Forefathers, the Copyright law has never protected mere “ideas.” In fact, Jefferson stated flat out that “[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”][ideas] cannot, in nature, be a subject of property. Specifically, things like titles, names, short phrases and slogans fall into that category, and thus are not eligible for copyright. Anything that can be treated as a building block – musical notes, letters, words – fall outside the scope of copyright’s protection.

But this doesn’t mean Palin is without protection all together.  In the United States, celebrities like Palin and others can protect their name, through trademark laws, and their persona, at least in 28 of the 50 states, through state laws governing rights of publicity.

Sarah Palin has opted, at least initially, to use trademark law to protect here interests in her moniker.  In an article by the Christian Science Monitor , she acknowledged filing for a trademark application for her name in International Classification 41 for “educational and entertainment services, namely, providing motivational speaking services in the field of politics, culture, business and values” and in IC35 for “Information about political elections; Providing a website featuring information about political issues.” The application is Serial Number 85170226 and the mark was approved for publication and the review of that publication was completed on April 12th. Likely the marks will issue within the next few months.

The thing to understand here is that it is not an uncommon practice among celebrities who want to enforce their intellectual properties, namely their persona or publicity rights, and prevent others from using their identifying features in similar trades and endeavors.  Filing a trademark application for use of their name in connection with certain services and goods is, in fact, extremely common for celebrities and I often advise my clients to take such action.

Currently, back in Sarah Palin’s world, there are two well-known figures impersonating her: Patti Lyons and Patsy Gilbert. Patti Lyons seems the most aggressive of the two, although both have been successful. In a Yahoo article, it was reported that Lyons showed up at a recent event in Washington, D.C. knowing that Palin would not be present.  Lyons impersonated Palin by dressing like her and making an appearance.  At the event, she deceived the crowd into thinking she was Palin.  Lyons spoke with her “fans” at the event and even those people were unable to detect the ruse. Lyons travels the country doing the impersonation with “fair and balanced” political comedy, and allegedly appeared onstage with Bill Clinton and Barack Obama. Lyons also has a website dedicated to her Sarah Palin impressions and is in negotiations with A&E for a special. Other impersonators, like Patsy Gilbert for example, have similar websites.

But even if Sarah Palin is successful in registering her trademark on the Primary Register, does that enable to prevent these impersonators from practicing their trade?  Maybe, maybe not. As our examination of protection moves further down the tracks, we have to reference a person’s right of publicity. Unlike copyrights, trademarks and patents, there is no uniform federal law that governs the intellectual property right of the right of publicity.  This right is based partly in common law, but also, as noted earlier, has statutory representation in 28 states. The problem is that there is very little uniformity among these state statutes, which range from 50 years in Illinois Cf. Ill. Comp. Stat. § 1075/30 – the most protection – to as little as 10 years at a time in Tennessee, for example.  Illinois’ neighbor, Indiana, gives protection for as long as the publicity rights are continuously transferred! Cf. Ind. Code § 32-36-1-16.  To quote another celebrity, can you say “to infinity and beyond?”  But don’t get me started on the rights of cartoon figures, lest I digress.

The right of publicity is essentially the inherent right of every human being to control the commercial use of his or her identity, in some state even after their death!  Some courts view this as a “moral” right, in line with the natural rights philosophy of John Locke, arguing that a celebrity’s identity is the fruit of his or her labor and creates property entitled to legal protection. See McFarland v. E & K Corp., Civil No. 4-89-727, 1991 U.S. Dist. Lexis 1496, at 4 (D. Minn. 1991).    Using this property right, celebrities may protect the commercial use of their persona, including their name, voice and personal characteristics, limiting their exposure and/or seeking compensation for their use.

Many of these laws, however, only prevent limited types of commercial use. Tennessee has a right of publicity statute which gives Tennessee residents “ a property right in the use of his name, photograph or likeness in any medium and in any manner.” Cf. Tenn. Code Ann. §47-25-1103, et. seq. In a case of first impression, Tennessee’s Supreme Court examined the statute in the context of a Beatles tribute band, i.e.¸a group of impersonators. The imitators dressed liked the Beatles, performed – remarkable close in sound – to the Beatles and, most importantly, advertised their concert using a pose similar to the one the actual Beatles use on the American version of the album, A Hard Day’s Night. The impersonators called themselves “1964 as the Beatles.”

The court ultimately ruled that the band could perform as impersonators, but could not use printed advertisements that evoked the persona and look of the original Fab 4. The court found that the impersonators’ use of the mark, The Beatles, in their name, and their use of the composition of the famous album cover in their marketing materials, was likely to create confusion for consumers. The court therefore issue an order containing prohibitions on using of the names “John,” “Paul,” “George,” and/or “Ringo” in advertisements, using their likenesses in advertisements, or using their famous mark, “The Beatles” in advertisements. The prohibition, the use of the mark, was extended to apply to the live performances, or stage name, of the impersonators. The band subsequently changed its named to “1964 the Tribute” and has gone on to moderate success.

The Tennessee court relied heavily on a New York case involving Jackie Onassis and Christian Dior.  Jacqueline Kennedy Onassis v Christian Dior, 472 N.Y.S.2d 254 (1984). The latter had used an impersonator of Onassis for a print advertisement. In the ruling the court stated:

We are dealing here with actuality and appearance, where illusion often heightens reality and all is not quite what it seems. Is the illusionist to be free to step aside, having reaped the benefits of his creation, and permitted to disclaim the very impression he sought to create? If we were to permit it, we would be sanctioning an obvious loophole to evade the statute. The essential purpose of the statute must be carried out by giving it a common sense reading which bars easy evasion.

The court found that the designer had violated Ms. Onassis’ right of privacy under the New York right of publicity statute

So, what is the bottom line for Sarah Palin. Once she successful obtains the registration of her marks, will she be able to prevent Ms. Lyons and her ilk to stop using her persona and her name? Again I say, maybe yes, maybe no. She will most certainly be able to prevent others from benefiting commercially from the use of her trademark and service mark in connection with her specified goods and services. But there is one more factor that may come into play with regard to Ms. Palin. In America, we uphold certain Constitutional principles to be paramount to property monopolies, particularly those of the intellectual types, such as copyright, trademark and, last but not least, rights of publicity. The First Amendment’s guarantee of freedom of speech and the Copyright concept of “fair use” come to mind immediately.

Sarah Palin is more than just a celebrity, she is a politician. Ms. Lyon is more than just an impersonator, she is a political humorist. Therefore, in the event that Ms. Palin ends up suing Ms. Lyon in an effort to enforce her newly obtained trademarks, she may very well have to overcome the defenses fair use and freedom of speech. Ms. Lyons has a constitutional right to imitate Ms. Palin in an effort to “comment upon” the state of politics in this country. However, her website, wisely, does not address politics or political issues, it merely offers her services as a humorist – notably a different service from that marked by Ms. Palin. Her URL is “www.imagesarahpalinimpostor.com,” while Ms. Gilbert’s URL is “www.sarahpalinimpersonator.com,” arguably not likely to confuse anyone into thinking these are associated with the real Ms. Palin – in fact, they arguable connote the opposite! So it will be unlikely that the real Sarah Palin will be able to prevent their usage of her name in that context.

But this is where it gets interesting. Reread the New York court’s comment above, and you will struck with its concept that an impersonator should not be allowed to create “an obvious loophole to evade the statute.” Exactly what will Ms. Palin be able to prevent. Do the images of Lyons and Gilbert that appear on their respective websites fall into the same category as the Onassis image and the Beatles cover art? The final answer is that it probably depends on the court and, ultimately, upon which law applies. Some states have more expansive rights of privacy and trademark protections. This will certainly be an interesting case to follow as it winds its ways through the courts.

Guest co-author, Ashley Trout, is a sophomore at Belmont University’s Mike Curb School of Music with an emphasis in music business.  Ashley graduated Freeburg Community High School (Illinois) in 2009.  She prepared the original draft of this article as part of an assignment for Mr. Shrum’s Copyright Law class.   She enjoys all things Disney and Harry Potter!

Get 50% off your first 3 months at audible.com![/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

By Rachel Galloway

IMPORTANT NOTICE:  The views expressed in this article are solely those of Ms. Galloway and may not necessarily reflect the views of Law on the Row or Barry Neil Shrum, Esquire.

The last time I watched a Happy Tree Friends video was when I was around 13 years old in the company of my 10-year-old cousins. The videos typically consisted of the characters getting into situations where they lost limbs or impaled themselves with blood squirting everywhere. Needless to say, when I watched YouTube’s Copyright School, I was shocked to see those same characters teaching me about copyright infringement and piracy.

[youtube https://www.youtube.com/watch?v=InzDjH1-9Ns?rel=0&hd=1]

YouTube’s Copyright School video has been on the site for roughly a month now with 248,734 views, 1,142 likes, and 5,914 dislikes (as of April 25, 2011 when I viewed it). I have heard and read many mixed feelings on this video and personally find it to be unsuccessful. Judging from the dislikes, I am not the only one.

I understand where YouTube is coming from in trying to educate children and teenagers on copyright issues using characters that they would normally watch such as Happy Tree Friends. However, I am not sure that they will get the effect they are hoping for. In my opinion (and experience with today’s generation), teenagers and children will continue to copy and use copyrighted work regardless of whether they understand that it is illegal.

In my two years at Belmont University as a Music Business major (where students are required to take a Copyright Law course), I have come to find out that teenagers do not care whether downloading music illegally is wrong or not. They simply do not care as long as they do not get caught. I find it ironic and hypocritical to go to a school where artists are encouraged to create original works and where copyrighted works are taught to be protected to find out that mosBioPic1t of the students (including the artists) still continue to download illegally. This infringement mainly takes the form of pirating music just like with the majority of American teenagers. In my opinion, if we can’t get college students who have a substantial knowledge on copyright infringement and it’s consequences to stop pirating music, then how can we get teenagers across America to do so with a 4 minute and 39 second YouTube video?

Pirating music is an issue that will always be a problem for the music industry. There have been many suggestions made that attempt to fix or at least ease this issue. Personally, I believe that the best way to go about this is to cut the cost of digital downloads (from $9.99 an album to around $1-$2 an album), so that consumers will not feel like they are forking out a ton of money towards entertainment that they believe should be free.  Personally, I would rather pay a low price for an album of superior quality than go through the trouble to find the pirated version for free that has a bad quality.

YouTube’s Copyright School had the right idea and motivation. Will it make a difference in the music industry? I personally doubt it. I applaud them for making an attempt to educate kids across America on the issue, but I believe that this is probably a losing battle.

Rachel Galloway is a Sophomore Marketing major with a minor in music business at Belmont University in Nashville, Tennessee.  Born and raised in Atlanta, Rachel graduated from Providence Christian Academy in Lawrenceville, Georgia in May 2009.  She came to Belmont University the following year with an interest in marketing and event planning in the music world.  There, Ms. Galloway studied copyright under the tutelage of Professor Shrum.  Upon graduation, she hopes to open her own event planning company.

My new client, Lance, releases his new album, What you Make It on April 20th.  Backed up by the Peterson family, Lance joined forces with Berklee College of Music graduate, Randall S. Peterson, who produced this collection; another Berklee grad, Paul Meyer, did the mastering.image

The finished product is being met with stellar reviews.  This praise is indicative:

. . . one song that I have to chose as my over all play repeat and do it again song it would be “So Into You” . . .  Lance did not hold out any of his heart and soul on this song as well as guitar and piano solos that make you want to roll the windows down and drive fast. This jam alone is one of many reason you should purchase this entire album.

imageFreelance writer Sherry Bach has this to say:

The feel of Lance’s music takes me back to the Atlanta Rhythm Section and Lionel Richie, two greats whose music never gets old.  If you don’t remember who those artists are, just think sexy, raw, emotional, beat driven, and mood setting guitar licks – preparing us to feel good and fall in love.

Read the full review here.

Another blogger, educator and freelance writer, Anna Summers, summarized as follows:

[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”][Lance’s music] is an eclectic mix of pop/rock and alternative songs with a distinctly soulful, bluesy-vibe that is trademark Lance. There’s something for every palette—from the sexy, sultry “Meet Me Downstairs” to the upbeat, charismatic, can’t-get-it-out-of-your-head Hey EverybodySo Into You promises to be the anthem of summer with its mesmerizing lyrics and shoreline groove. True to its title, this album meets you where life and love intersect, inviting you to make the most of every moment.

From a different media, disc jockey “OC” at KRUF 94.5 FM in Shreveport, Louisiana raves “Excellent tunes Lance! . . . Love the Downstairs tune but then again I love them all!

Finally, Sylphie Mitchell of The Last Note Standing says:

Favorite track . . .?  For me, it’s a tough choice. If I want to dance, I’m going to pick “So Into You” because you can’t help but move when you hear it. For quiet moments and pure feeling, I want to listen to “Downstairs” and “I Wish You Were Here”. Lance’s music and lyrics are strong, and given even more depth and color by the Peterson family, who back him up instrumentally. All in all, for this writer, I have to say to LANCE that I “Got Love” and that I “Want (more) Love!”

Lance is currently on a tour of the Hot Topic retail outlets across the Southeast, currently appearing in Regency Square Mall in Jacksonville, Florida.  He will be back in the Music Row area on April 19th appearing at the Belcourt Taps & Tapas in Nashville, and then at Borders Books in Brentwood and then at the Cool Springs Galleria on April 20th.  Be sure to get out and show your support.

Find out for yourself what everyone is talking about.  Submit your own review!  But by all means,  pre-order the CD here.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]