Yesterday I had the honor of attending the announcement of the Nashville Songwriters Hall of Fame’s 2018 inductees, Ronnie Dunn, K.T. Oslin, Byron Hill, Wayne Kirkpatrick and Joe Melson.  I am so honored to serve as general counsel for this outstanding organization and serve with president Pat Alger, executive director Mark Ford, and all of the other talented and wonderful directors on the board, not to mention the fact that I get to brush elbows with these 200+ amazingly talented songwriters.  Below is the press release:

[/fusion_text][fusion_text columns=”” column_min_width=”” column_spacing=”” rule_style=”default” rule_size=”” rule_color=”” class=”” id=””]Nashville, TN August 7, 2018 – Ronnie Dunn, K.T. Oslin, Byron Hill, Wayne Kirkpatrick and Joe Melson will be inducted into the Nashville Songwriters Hall of Fame in October, according to an announcement made today by Hall of Fame member Pat Alger, chair of the organization’s board of directors.

The five new inductees will join the 208 existing members of the elite organization when they are officially inducted during the 48th Anniversary Nashville Songwriters Hall of Fame Gala on Sunday, October 28, at the Music City Center.

“This time of year, as board chair of the Nashville Songwriters Hall of Fame Foundation, I am always reminded of the broad variety and high quality of the songwriting talent we are so fortunate to be able to celebrate,” says Alger.  “The musical trends might change through the years, but for us it always comes down to great songs and legendary songwriters – the bedrock of the town that continues to be hailed as Music City.  This year’s nominees for the Nashville Songwriters Hall of Fame were inspiring and impressive as always, each one deserving recognition for the impact they made. Today it’s my great honor to welcome the Nashville Songwriters Hall of Fame class of 2018:  Byron Hill and Wayne Kirkpatrick in the songwriter category; Joe Melson in the veteran songwriter category; Ronnie Dunn as our songwriter/artist and K.T. Oslin as our veteran songwriter/ artist.”

Byron Hill’s songwriter credits include “Pickin’ Up Strangers” (Johnny Lee), “Fool Hearted Memory” (George Strait) and “Nothing On But The Radio” (Gary Allan).  Wayne Kirkpatrick’s resume is known for the Grammy-winning “Change The World” (Eric Clapton) and “Little White Church” (Little Big Town) and the Broadway musical Something Rotten!.  Joe Melson is the co-writer of the Roy Orbison hits “Only The Lonely (Know The Way I Feel),” “Crying” and “Blue Bayou.”  Ronnie Dunn popularized many of his own compositions, including the Brooks & Dunn hits “Neon Moon,” “Boot Scootin’ Boogie” and “Believe.”  K.T. Oslin recorded many of her self-penned hits, including “80s Ladies,” “Hold Me” and “Come Next Monday.”

The Nashville Songwriters Hall of Fame Gala is one of the music industry’s premier events of the year.  The evening features tributes and performances of the inductees’ songs by special guest artists.  In recent years artists such as Garth Brooks, Luke Bryan, Jimmy Buffett, Ronnie Dunn, Emmylou Harris, Alan Jackson, Tim McGraw, Thomas Rhett, Blake Shelton, Marty Stuart, Taylor Swift, Josh Turner and Trisha Yearwood have performed at or participated in the event.

Also at the event, NaSHOF will present Reba McEntire with the inaugural Career Maker Award in honor of her significant influence on the songwriting careers of Hall of Fame members.

Tickets for the Hall of Fame Gala are $250 each and benefit the nonprofit Nashville Songwriters Foundation.  Select seating is available to the public and may be purchased as available by contacting Executive Director Mark Ford athoftix@nashvillesongwritersfoundation.com or 615-460-6556.
 
About the Nashville Songwriters Hall of Fame:

Induction into the Nashville Songwriters Hall of Fame is one of the nation’s most highly prized songwriting achievements.  Since 1970, the Hall has enshrined more than 200 of the greatest writers from all genres of music ever to put words to music in Music City, including such luminaries as Bill Anderson, Bobby Braddock, Garth Brooks, Felice & Boudleaux Bryant, Johnny Cash, Don & Phil Everly, Harlan Howard, Kris Kristofferson, Loretta Lynn, Bob McDill, Bill Monroe, Willie Nelson, Roy Orbison, Dolly Parton, Dottie Rambo, Jimmie Rodgers, Fred Rose, Don Schlitz, Cindy Walker and Hank Williams.  Operated by the non-profit Nashville Songwriters Foundation, the Hall of Fame is dedicated to honoring Nashville’s rich legacy of songwriting excellence through preservation, celebration and education.  More information is available at http://www.nashvillesongwritersfoundation.com/.
 
Photo (l-r) Inductees Wayne Kirkpatrick, Byron Hill and Joe Melson; NaSHOF Executive Director Mark Ford; Inductees K. T.  Oslin and Ronnie Dunn.

Photo Credit:  Bev Moser
 
Contacts for the Nashville Songwriters Hall of Fame:

Media
Jennifer Bohler / Alliance
615 292 5804
jenny@jb-alliance.com

Executive Director
Mark Ford / NaSHOF
615 460 6556
markford@nashvillesongwritersfoundation.com

[/fusion_text][/fusion_builder_column][fusion_builder_column type=”1_3″ layout=”1_3″ spacing=”” center_content=”no” link=”” target=”_self” min_height=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”left top” background_repeat=”no-repeat” hover_type=”none” border_size=”0″ border_color=”” border_style=”solid” border_position=”all” padding_top=”” padding_right=”” padding_bottom=”” padding_left=”” dimension_margin=”” animation_type=”” animation_direction=”left” animation_speed=”0.3″ animation_offset=”” last=”no”][fusion_text columns=”” column_min_width=”” column_spacing=”” rule_style=”default” rule_size=”” rule_color=”” class=”” id=””]

Inductee Biographical Information
 
BYRON HILL

Winston-Salem, N.C., native Byron Hill moved to Nashville in 1978 and soon signed with ATV Music Group, where he enjoyed his first cuts with “Pickin’ Up Strangers” by Johnny Lee and George Strait’s first #1 “Fool Hearted Memory” in 1982.  Byron left ATV in 1984, but his songwriting resume continued to expand with “Nights” by Ed Bruce, “Born Country” by Alabama, “Alright Already” by Larry Stewart, “Lifestyles Of The Not So Rich And Famous” by Tracy Byrd, “High-Tech Redneck” by George Jones, “If I Was A Drinkin’ Man” by Neal McCoy, “Nothing On But The Radio” by Gary Allan and “Size Matters (Someday)” by Joe Nichols.  Other artists who have recorded Byron’s songs include Jason Aldean, Randy Travis, Keith Whitley, Rhonda Vincent, Don Williams, Trace Adkins, Toby Keith, Porter Wagoner, Brooks & Dunn, The Oak Ridge Boys, Ricky Skaggs and Reba McEntire.  To date, Byron’s songs have generated more than 700 recordings, earned 91 RIAA certified Gold and Platinum awards, 10 ASCAP awards, 34 U.S. and Canadian Top-10 chart hits and numerous hits in other global markets.
 
WAYNE KIRKPATRICK

At age 14, Wayne Kirkpatrick moved with his family to Baton Rouge, La.  After a guitar lesson at a Florida Bible camp, Wayne began spending hours after school writing songs and playing younger brother Karey’s acoustic guitar.  Both brothers eventually moved to Nashville, where Karey helped Wayne secure some of his first cuts.  Since then, Wayne has had nearly two dozen chart-topping Contemporary Christian and Pop singles, including “Every Heartbeat,” “Good For Me” and “Takes A Little Time” by Amy Grant and “Place In This World” by Michael W. Smith (the 1992 Dove Song of the Year).  In 1996, Wayne’s co-written “Change The World” by Eric Clapton was featured in the film Phenomenon and earned the 1996 Grammy for Song of the Year.  In 1999 Wayne sang, played and co-wrote eight songs on Garth Brooks’ In The Life Of Chris Gaines project, including “Lost In You” and “It Don’t Matter To The Sun.”  In 2002 he began a longtime collaboration with Little Big Town that yielded hits such as “Boondocks,” “Bring It On Home” and “Little White Church.”  In 2010, Wayne and Karey began working on the musical Something Rotten!, which opened on Broadway in 2015 and earned 10 Tony Award nominations, including Best Musical and Best Original Score.  The show launched a U.S. tour in 2017.

JOE MELSON
Joe Melson grew up in Bonham, Texas.  He began writing and singing his own songs at an early age.  He spent much of his young adult years working at Standard Oil by day then playing high-school dances and local night clubs with his Rockabilly band by night.  In 1957, Joe met and began writing with a then-unknown Roy Orbison.  In 1960, their song “Only The Lonely (Know The Way I Feel)” launched Orbison into superstardom.  The first operatic rock ballad in history, that single was inducted into the Grammy Hall of Fame in 1999.  In 1961, the team created the smash “Crying.”  It became a giant hit for Orbison, was revived as a pop hit by Jay & The Americans five years later and entered the country repertoire via versions by Ronnie Milsap and Don McLean, among many others. Orbison’s single was inducted into the Grammy Hall of Fame in 2002.  In 1963, the duo’s “Blue Bayou” became another hit for Orbison (and, years later, Linda Ronstadt).  Joe’s song catalgoue also includes “Blue Angel,” “Running Scared,” “Lana” and “I’m Hurtin’” (all hits for Orbison), as well as “Run Baby Run (Back Into My Arms)” by The Newbeats and the Glenn Barber singles “Unexpected Goodbye” and “I’m The Man On Susie’s Mind.”  In 2002 Joe was inducted into the Rockabilly Hall of Fame.
 
RONNIE DUNN

Ronnie Dunn was born in Texas, but Tulsa, Okla., became his hometown.  He began playing guitar and performing in Country bands when he was in his teens.  After winning the Marlboro Talent Search, Arista Records expressed interest in him.  The label teamed him with singer-songwriter Kix Brooks, and the two recorded as Brooks & Dunn from 1991-2011.  The mega-duo sold millions of records and was named CMA Vocal Duo 14 times.  The Brooks & Dunn hits “Neon Moon,” “Hard Workin’ Man,” “She Used To Be Mine,” “She’s Not The Cheatin’ Kind” and “Little Miss Honky Tonk” were all written solo by Ronnie, as was “Boot Scootin’ Boogie,” which was named ACM Song of the Year in 1992.  Ronnie was BMI’s Country Songwriter of the Year in 1996 and 1998.  Co-written Brooks & Dunn hits include songs such as “Brand New Man,” “My Next Broken Heart” and “Believe,” which was the ACM Song of the Year in 2005 and the CMA Song and Single of the Year in 2006.   In  2011, Ronnie resumed his solo career as a singer-songwriter with “Cost Of Livin’.”  Ronnie was inducted into the Oklahoma Music Hall of Fame in 2003.

K.T. OSLIN
Kay Toinette Oslin was born in Crossett, Arkansas.  After her father died, she moved with her mother to Houston, where she later attended college as a drama major.  In 1966, she joined the road company of Hello Dolly!.  When the musical returned to Broadway, K.T. remained in the cast.  During the next two decades, she appeared as a chorus girl in musicals such as Promises, Promises and West Side Story.  She also sang commercial jingles around New York and began writing songs.  By 1981, she was signed to Elektra Records and released two singles with modest success.  She also had songs recorded by Gail Davies, The Judds and Dottie West.  By 1987, K.T. had moved to Nashville and signed with RCA Nashville.  She scored big with her self-penned “80s Ladies,” which was named 1988 CMA Song of the Year, making her the first female writer to win the award.  That album also launched the singles “Do Ya” and “I’ll Always Come Back.”  Her second album generated five singles, including “Money,” “Hey Bobby,” “This Woman,” “Didn’t Expect It To Go Down This Way” and “Hold Me,” which earned the 1988 Grammy for Best Country Song.  K.T.’s third album generated the hits “Come Next Monday” and “Mary And Willie.”  She was named 1988, 1989 and 1991 SESAC Songwriter of the Year.  K.T. is a 2014 inductee into the Texas Heritage Songwriters Hall of Fame.

                                   ###

 

[fusion_builder_container hundred_percent=”no” equal_height_columns=”no” menu_anchor=”” hide_on_mobile=”small-visibility,medium-visibility,large-visibility” class=”” id=”” background_color=”” background_image=”” background_position=”center center” background_repeat=”no-repeat” fade=”no” background_parallax=”none” parallax_speed=”0.3″ video_mp4=”” video_webm=”” video_ogv=”” video_url=”” video_aspect_ratio=”16:9″ video_loop=”yes” video_mute=”yes” overlay_color=”” video_preview_image=”” border_size=”” border_color=”” border_style=”solid” padding_top=”” padding_bottom=”” padding_left=”” padding_right=””][fusion_builder_row][fusion_builder_column type=”1_1″ layout=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” border_position=”all” 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=”small-visibility,medium-visibility,large-visibility” center_content=”no” last=”no” min_height=”” hover_type=”none” link=””][fusion_text]

Shrum & Associates’ very own namesake, Barry Neil Shrum, Esquire, was recently appointed to serve as general counsel for the Nashville Songwriters’ Hall of Fame, and to serve as a non-voting member of its Board of Directors.  The Nashville Songwriters Hall of Fame Foundation (NaSHOF) is a non-profit organization dedicated to honoring and preserving the songwriting legacy that is uniquely associated with the Nashville music community. Its purpose is to educate, celebrate and archive the achievements and contributions made by members of the Nashville Songwriters Hall of Fame to the world. 

Induction into the Nashville Songwriters Hall of Fame (NaSHOF) is one of the nation’s most highly prized songwriting honors. Since 1970, nearly 200 of Music City’s top tunesmiths from all genres of music have been enshrined by the non-profit organization, which honors Nashville’s rich legacy of songwriting excellence through preservation, celebration and education. In 2013, NaSHOF realized a long-held dream with the opening of its Hall of Fame Gallery, located in downtown Nashville on the first floor of the Music City Center (201Image result for nashville songwriters hall of fame 5th Avenue South).

NaSHOF chairman of the Board, Patrick (“Pat”) J. Alger III (2010 NaHOF inductee), described Mr. Shrum as a perfect fit:

The Board of the Nashville Songwriters Foundation has patiently and cautiously been searching for a replacement for our longtime legal counsel [David Maddox] who recently retired. As Chairman and the de facto representative that bears the responsibility for our actions and decisions it is especially important to me to find the right candidate. I believe we got very fortunate when Barry Shrum expressed interest in filling that vacancy. He has the right combination of knowledge, experience and personality to fit the bill precisely! We welcome him enthusiastically to our team.

Mr. Shrum expressed equal admiration for his new chairman and for the organization:

I was honored when Mr. Alger approached me about the position.  Pat is in the pantheon of songwriting gods here in Nashville and the writer of one of my favorite Garth Brooks’ songs, Unanswered Prayers.  I am looking forward to serving under his considered and kind leadership.  I can’t think of anything I would rather be remembered for more so than protecting and honoring the rights of such great songwriters like Pat Alger and the other 200 or so inductees.

Mark Ford, Executive Director of the NaSHOF, expressed excitement about the appointment:

I’m excited that Barry has joined the board of the Nashville Songwriters Hall of Fame.  His knowledge of copyrights and their creators, combined with his years of experience in the music industry, are a great fit for our organization.  He’s a pleasure to be around, a delight to work with and someone who will definitely stand shoulder-to-shoulder with us as we strive to honor Nashville’s rich legacy of songwriting excellence.

NaSHOF is currently producing a series of critically-acclaimed weekly television series called The Songwriters which features engaging conversations with NaSHOF inductees, including Gary Burr, Bill Anderson, Steve Cropper, Ray Stevens and many others.  The inaugural season is hosted by NaHOF Board member, Ken Paulson, and is produced at MTSU’s College of Media and Entertainment.  The shows airs three times weekly on Nashville Public Television as well in 10 other markets across the country.

Mr. Shrum accepted the position and took on the role in December of 2017.

[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]






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.

 

 

[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

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.

[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Robin Thicke  and  Pharrell Williams spent 2013 on the top of the charts with their hit  Blurred Lines, but due to allegations of copyright infringement suit leveled by the children  of legendary singer Marvin Gaye they also spent much of 2014 in a court proceedings.

And did they put on a show.

The saga began in early 2013, when the Gaye family approached its publisher, EMI April, about protecting Gaye’s 1977 hit, Got to Give it Up from what it perceived as infringement.  The request put EMI between a rock and hard place, however, since the company is now owned by Sony/ATV, which manages both catalogs of songs.  The company was reluctant to take any action.  There are plenty of YouTube videos, like this one, that play the songs side by side for you to judge.

The controversy has created a viral buzz on the Internet, which was fueled in part because Thicke admitted that Gaye was one of his childhood idols.  He bought his first Gaye recording when he was only 8 years of age and has consistently maintained that Got to Give it Up was one of his favorite songs of all time.  Rumors on the web also indicate that when he and Williams discussed the song, he encouraged Williams to make something that “sounded like” the Gaye song.

In view of the controversy, Thicke and Williams took preemptive action and filed for a declaratory judgment in August 2013 asking a Los Angeles district court to issue a ruling that their song Blurred Lines was not infringing, but rather was inspired by the sound of the late 70’s era of “funkadelic” music.  In its response to their complaint, Gaye’s family filed a  countersuit claiming that Thicke and Williams specifically infringed Got To Give It Up.  The estate also named EMI-Sony/ATV as a defendant, claiming that it breached its fiduciary duty to them by refusing to resolve the conflict.

Each party  brought out their best musicologists and mash-ups,  but it was the deposition that got the best of Thicke, who consistently refused to listen to the comparison “mash up” played by the attorney, claiming that listening to minor chords over major chords was like “chalk on a [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”][explitive] blackboard.” Read excerpts from the  deposition  here via The Hollywood Reporter. It produced gems like:

“Q:         Were you present during the creation of ”Blurred Lines”?

Thicke:     I was present. Obviously, I sang it. I had  to be there.

Q:         When the rhythm track was being created, were you there with Pharrell?

Thicke:     To be honest, that’s the only part where —  I was high on Vicodin and alcohol when I showed up  at  the studio. So my recollection is when we made the song, I thought I wanted — I  — I wanted to be more involved than I actually was by the time, nine months later, it became a huge hit and I wanted credit.  So I  started kind of convincing myself that I was a little more part of it than I was and I — because I didn’t want  him — I wanted some credit for this big hit. But the reality is, is that Pharrell had the beat and he wrote almost every single part of the song.”

Despite Thicke’s throwing Williams under the bus from a legal standpoint, and his poor composure during the writing of the song and deposition, the trial took a turn in his favor when the judge rejected a summary judgment motion filed by the Gaye family.  The court felt that the elements of similarity between the two songs were only present in the audio recordings, but because submission copies under the 1909 Copyright Act, under which Gaye’s work fell, were required to be written lead sheets, the similarities were not as obvious.  The judge denied summary judgment because there was insufficient evidence  to  prove  that  Thicke  and  Williams  infringed.  Despite the technicality, the  two songs were found to be substantially similar and Thicke and Williams both admitted to having previously heard the work.

In January 2014, Sony/ATV settled its portion of the lawsuit with the Gaye estate, the terms of which are, of course, not public.  As for the remaining claimes, plan on both parties pulling out all the stops for  the trial, which is set for February 20th. The Gaye family will be seeking damages and Thicke and Williams will be hoping to only have to pay a licensing fee.  Stay tuned to Law on the Row for more information as it becomes available.

 

Written by John Inniger, edited by BNS.  John is a student at Belmont University’s Mike Curb School of Music.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Innovation

You cannot discover new oceans unless you have the courage to lose sight of the shore.

As it does every year, this new year marks a new beginning. I plan to continue my Twitter series entitled #creativity, so if you don’t already, follow me there @bshrum, or on any of the social networking platforms. However, I wanted to announce the series here and say a few words on the topic.

There is a trend in modern thinking to discount the significance, and even the possibility, of original thought. The movement is similar to the quo
te from Proverbs that there is “nothing new under the sun.” In other words, people are basically saying that an original idea is not possible, since every idea has already been expressed. This idea stems from the corresponding line of thinking that all ideas should be free. If this is true, there is not room for creativity, thought, inspiration, invention and innovation. All such “new” ideas would, in fact, be in the zeitgeist already.

Obviously, I do not agree with this line of thought. I come from a family of creative thinkers and I know from experience that new thought can, and is, generated every day. Our own experience in society falsifies the notion that there is nothing new under the sun, as we see in American history a lineage of great, original thinkers and invention. The light bulb, the automobile, electricity, the assembly line, the telephone etc. etc. All of these innovations are based on sparks of creativity. As American author Jonah Lehrer says,

“Creativity is a spark. It can be excruciating when we’re rubbing two rocks together and getting nothing. And it can be intensely satisfying when the flame catches and a new idea sweeps around the world.”

This is a wonderful insight. It is most certainly difficult in most instances to spontaneously generate truly unique thoughts. There is a propensity in the Nashville songwriting community to attempt to “force” this spark by scheduling co-writing sessions with other like-minded songwriters. This sometime results in frequent complaints about the songs being produced and performed in Nashville, i.e., that they are “all alike.” What people are really saying is that many of the songs are not creative. So, while these co-writing sessions may occasionally produce some innovative ideas, it seems that more frequently the practice is a lot like “rubbing two rocks together” in an effort to create the spark, but actually producing a lot of similar songs.

So, the question is can a person actually do anything to foster the generation of new and creative ideas, or are well all destined to the world where there is “nothing new under the sun”? Research shows that there are certain practices which help the spontaneous generation of fresh and new ideas. I’ll share three of them:

The Inner Child

When we think of creativity, we can’t help but reminisce about the days when we were children. A child has not inhibitions or preconceived notions. To a young child, every experience is new and original. The child cannot help but want to paint, sculpt, draw, write, read and see the world in a new light.

It is that “inner child” that can help the creator generate new ideas. Think about this: why is that many great artists, no matter what the craft, often turn to substance use and abuse in times when they want to create? The reason is, of course, that using a mind altering vehicle often lowers inhibitions and “lowers our guard.” No, I’m not saying go out and tie on one in order to create your next great novel. What I am saying is that if you want to create new ideas, you have to see things from the perspective of a child. Stand on your head. Do somersaults. Perform some of your favorite childhood activities. Get in touch with you inner child and your creative juices will be stimulated.

Brainstorm

Another way to get in touch in with your inner child is to just begin writing down any idea that pops in your head, without leaving any room for judging or evaluating the validity of those ideas. This process often puts you in touch with your subconscious thoughts that are frequently suppressed by our conscious mind, where all of our rules and safeguards exist. Original thinkers often talk about thinking all the times. They have very fluent and free flowing thoughts, producing a stream of ideas that are different and sometimes unusual to the less creative observer. But this is how they derive the practical and innovative ideas. Often times, the creative thinker will spend a lot of time “incubating” ideas. As the old expression goes, they “put in their pipe and smoke it.” They percolate the idea in their head until suddenly there is a moment of “eureka” and the idea comes out fully developed. This is the moment that some people feel they are being touched by inspiration, or being guided by their “muse.” The jury may still be out on that, but in reality the key for the creator is knowing how to find these moments of illumination and capture them, regardless of from where you believe they come.

The expression “a writer writes” reflects this concept. If you look at the journals of any great thinker – Thomas Jefferson, Leonardo da Vinci, etc. – you will find scores of ideas that they did not develop. These great thinkers of the world captured their thoughts frequently. In our age of modernity, we have technologies that can assist in that tasks, but we must not lose sight of the important of writing things down as they occur. Keep a journal.

Craft

To the last point, some people believe that creativity is not a trait we inherit, but rather is a skill that is developed. That may just be something the non-creative people say, but the fact of the matter is that you CAN learn skills associated with the arts. A person can be taught to sculpt, paint, write songs or novel, etc. If Einstein had not known the “skills” of math, he would not have been able to capture his unique equation, E=mc2. His flash of insight may very well have faded into the moment, thereby changing the course of human history as we know it. My point is this: new, original and creative ideas must be captured and crafted in order to be innovative.

Once you have mastered the art of getting in touch with your inner child, brainstormed a flurry of ideas, and had your “eureka” moment of insight, you must have developed the skills necessary to capture it and put it down on paper. The art of “clothing,” or expressing the idea is a craft that must be honed and developed in order to achieve success, no matter what your area of creativity.

So, hopefully these musings of a lawyer on the subject of creativity inspire you to go out and create. Help me in my quest to stamp out this new trend in thinking that there are no new ideas. Go create some!

 

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 .

 

 

[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

NBC Universal recently hired a company called Envisional to study counterfeiting activity over the Internet. The results of this study – despite the fact that it is industry funded – are literally astonishing: 24% of all global Internet traffic involves digital theft!  Stated another way, one in every four people surfing the Internet are stealing intellectual property, i.e., illegally downloading either copyrighted or trademarked materials.  According to the International Federation of the Phonographic Industry, 95% of the music downloaded from the Internet is downloaded illegally!  Imagine how our society would react if one out of every four people in retail malls were carrying out stolen merchandise on a daily basis, or if 95% of the product leaving the mall was stolen.  It would be chaos.

Ring of FrodoNow consider whether these people who so quickly download a song or a movie on the Internet without paying for it would also walk up to an artist selling their painting in the park and steal one of their painting.  I firmly believe the answer to that question is a resounding no!  But why? What is different about the world wide web, i.e. cyberspace, that gives these consumers the feeling that they are entitled to download music and movies through mechanisms like BitTorrent without compensating those who created such product?  What are these people thinking?

I think the answer can be found in the writings of Plato.  In the second book of his Republic, Plato’s student, Glaucon, poses the illustration of the “Ring of Gyges.”  In the story, Gyges is a shepherd who finds a magical ring in a chasm created by a lightning storm.  The ring gives him a cloak of invisibility.  Using his newfound power, Gyges seduces the Queen of Lydia, murders the King, and takes the throne, gaining power, wealth and fame.  In the Republic, Glaucon argues that given a similar opportunity, any person, whether or not they were previously just or unjust, would use the power to commit as many crimes as necessary to get what they want [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”][Book II, 359d].    Glaucon was responding to Socrates’ refutation of arguments put forth by Thrasymachus in Book I of the Repbulic, i.e., that “justice is nothing but the advantage of the stronger”  [Book I, 338c].

I believe Glaucon’s experiment in thought informs us as to why someone who would not normally steal a tangible object in the physical world is nonetheless more than willing to download music or movies, intangible objects, on the Internet for free: because the fear of being punished or getting caught is eliminated in the evanescent world of Cyberspace.  The Internet, like Gyge’s ring, confers upon its users a seeming cloak of indivisibility as it were.  As one astute commentator surmised in response to an interview with Alice in Chain’s lead singer, Sean Kinney, “The real reason people steal music is that they CAN and very easily.”  That this is a truth is evident from the plethora of “how to” guides on the Internet, teaching people “How not to get caught.” There you have it in a nutshell.   All of the commentary about how the record industry has been thieves and how the RIAA unjustly goes after the defenseless people, these are mere justifications for actions people otherwise know in their hearts are wrong.

It’s important to read Plato’s response to his student to understand fully, as Plato did not agree with Glaucon.  Plato’s argument in the remaining portion of the Republic is that the just man would not be tempted by this cloak of invisibility to commit crimes.  Rather, the just man understands that crime itself makes a person unhappy and that he is better off to remain just.   I frequently discuss this issue with my college students at Belmont University when teaching a course on Copyright Law.  One of my students made the following observation, which confirms Plato’s conclusion.  She said:

I do not follow the rules because I am scared of the RIAA busting me for illegal downloading. I follow the rules because I have respect for the people who wrote and recorded the songs, and even more, because I want to work in the music industry.

Another relevant opinion is offered in the excellent blog article found on arbiteronline entitled Illegal downloading: The real cost of ‘free’ music.” In that article, a student at Boise state, Ammon Roberts, is quoted as saying:

“I don’t do it because I don’t feel it’s right.  If I were making the music, I’d be upset if people were downloading it for free.”

For these two students, following the rules is not about whether or not they’ll be caught, it’s about doing the right thing.  It’s about honoring, i.e. compensating, the people who created the music. 03-20-invisible_full_600 This illustrates Plato’s point precisely:  a just person understands that even with a cloak of invisibility, doing the right thing makes a person happy or, in the words of Roberts, makes the person “feel right.”

The Internet is also very much the Land of Oz.  In addition to this cloak of invisibility endowed on us by the Internet, it also deceives us with illusions of anonymity – not so much that the user is anonymous, as that’s merely another form of invisibility – but in the sense that it’s difficult to know who’s behind the curtain.   As Trent Reznor said in an interview, “there is a perception that you don’t pay for music when your hear it . . . on MySpace.”  Because of its sheer vastness and its mysteriousness, Cyberspace gives people false perceptions that their actions on the Internet do not affect real people.   This, in turn, creates an illusion that “resistance is futile.”  Everyone is doing it, so I can too.  In other words, Cyberspace alters our reality in that it makes the real people behind the music an amorphous, anonymous entity.  The result is that it’s much easier to steal from an amorphous, anonymous entity – the man behind the curtain – than it is from a struggling songwriter, particularly when all your friends are doing it.

I truly believe that most of the people who are illegally downloading music from the Internet have no idea who they are affecting or how widespread the effect is.  Most of these people would not even think about walking up on stage after a singer/songwriter in a nightclub takes a break and stealing his guitar, but that very same person doesn’t think twice of taking that same singer/songwriter’s song from the Internet.  They wouldn’t steal the filmmaker’s camera, but downloading the movie doesn’t phase their consciousness.  In fact, many who contribute to the  dialog would argue that these two thefts are not analogous.  But one analysis conducted by the Institute for Policy Innovation states otherwise.  The report indicated that music piracy causes $12.5 billion of economic losses every year.  It further concluded that 71,060 U.S. jobs are lost, with a total loss of $2.7 billion in workers’ earnings.  Such reports abound throughout the industry, yet many of the people guilty of illegal download continue to view these reports as industry-driven and, therefore, skewed.  Take this comment by blogger Michael Arrington as an example:

Eventually the reality of the Internet will force the laws to change, too. One way or another the music labels will eventually surrender, and recorded music will be free.  Until it is, I refuse to feel guilty for downloading and sharing music. Every time I listen to a song, or share it with a friend, I’m doing the labels a favor. One that eventually I should be paid for. Until that day comes, don’t even think about trying to tell me that I’m doing something ethically wrong when it’s considered quite legal, with the labels’ blessing, in China.

resistanceBut what this illusion of anonymity, and such misguided opinions, miss is the fact that very real people – not amorphous masses – are being affected.  And the effect is devastating.  I have clients who are songwriters who are no longer creating art because they are forced to take odd jobs to support their families.  The performance royalties they used to receive from ASCAP, BMI or SESAC are down by half or more from a few years ago.  Their mechanical royalty checks are virtually non-existent.  They simply cannot afford to create simply for the sake of creation.  And now, working sometimes two jobs, they don’t have the time to create.  What will become of the art of songwriting if Mr. Arrington has his way and all recorded music is free?  I believe we will not have the quality of music in this country that we have enjoyed throughout the last millennium.  In this instance, I do not believe that resistance is futile.

Now, getting back to Plato and the Ring of Gyges, in answer to Glaucon, Plato would say that the root of all trouble is unlimited desire.   How true is that in this world of Cyberspace, in this world of rampant illegal downloading.  The wheels really fell off the wagon when the RIAA sued Diamond Multimedia, bringing the MP3 into society’s field of view.  Then, Napster exploded and almost everyone found that almost every song they ever loved was available for free.  It’s as if they were Harrison Ford and discovered the treasure room in an unknown, ancient tomb: everything your heart desires is within your grasp.  It’s yours for the taking.  With its cloak of invisibility and its illusion of anonymity, what the Internet has done, in short, is to return the power – i.e., the control – back to the people.  Everyone is now a creater, a publisher, and distributor.  No one needs the conglomerates anymore – the people have the power.  But, as Lord Acton said, beware:  “Power tends to corrupt, and absolute power corrupts absolutely.”  With power, therefore, comes responsibility.   Unfortunately for the music industry, the power is currently being abused and will, ultimately, mean the end of the recording industry as it existed through the 20th century unless the creators regain that power.

So what does this mean for those of us who have chosen to make our living in the world of creation?  Does it mean the end of our industry?  Does it mean an end to copyright law as it exists?  If we examine the origins of copyright – i.e., the protection of an original idea expressed in a tangible format – as passed down to us from our forefathers, we find a concept on which we can continue to build.  In the now famous Radiohead experiment in which Reznor and crew allowed consumers to pay what and only if they wanted to, 18% of the consumers chose to do so!  That to me, is an encouraging statistic, and one that confirms a believe in the viability of creating art.  At least one in five people, even with the cloak of anonymity provided by the Ring of Gyges of this era, i.e., Cyberspace, chose to pay the creators for their creation.  Take that Glaucon!  Take that Arrington!  What does that say for our society?  It says that there are people who still chose to do the right thing, even when the tide of conformity rises above their heads.

The bottom line is that it really doesn’t matter what laws are passed by society, there will always be a certain percentage of people who will chose to steal, take and plunder, whether it be because they are more powerful or because they are cloaked with invisibility or shielded by anonymity.  But – and here is the important thing – there will also always be a segment of society that recognizes the idea that Thomas Hobbes first advanced hundreds of years ago, i.e., the idea of “giving to every man his own.”    If a man bakes a loaf of bread, is it not his right to trade that to the artist for whose painting he wishes to barter?  This idea was later incorporated by our Forefathers into Article I, Section 8, Clause 8 of the U.S. Constitution, which gives Congress the authority “[to] promote the progress of science and useful arts, by securing for limited times to Authors and Inventors the exclusive rights to their respective Writings and Discoveries.”  Without this Constitutional right, a creator has no hope of protecting his or her property against plunder.  And as long as a segment of society believes this proposition to be beneficial to society as a whole, it will hopefully continue to motivate creators to create, and so profit from their creations, despite the efforts of those who choose to destroy it under a cloak of invisibility and unjustly take for themselves the kingdom of Lydia.

Quotations from Republic are taken from the W.H.D. Rouse translation, Great Dialogues of Plato, Mentor Books, 1956, a quoted in this fine article on the topic.

 


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

, , , ,
Origins of an Idea–Nothing New Under the Sun?

It was allegedly King Solomon who declared “there is nothing new under the sun!” Now a recent strain of thought seeks to recast King Solomon’s casual observation in order to challenge the basis of U.S. copyright laws, i.e., original ideas. This line of reasoning is perhaps best exemplified in the popular cult film by Brett Gaylor entitled RIP, A Remix Manfesto, inspired by his need to defend the work of his favorite mash up artist, Girltalk. Gaylor makes no bones about his attack on ideas, explaining to his audience near the beginning of the film that this is “a film about the war of ideas, where the Internet is the battleground.” So be it. Let’s debate the film’s primary cornerstone, the first and foundational clause of the Remix Manifesto, which is that “Culture always borrows from the past.” Is that true? Let’s look at what Jefferson said about ideas:

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. – Thomas Jefferson

To be fair to Gaylor, let me initially point out that the entire ReMix Manifesto, and certainly the ideology that undergirds it, is actually borrowed from Dr. Lawrence Lessig, who is a professor at Stanford Law School. Lessig develops the thesis in his book, Remix: Making Art & Commerce Thrive in the Hybrid Economy. Lessig is prominently featured in the film and Gaylor does not shy away from his support of Lessig’s thesis.

Now back to the premise that “culture always borrows from the past.” Without getting too far down the path towards the logical fallacy of drawing a universal conclusion from purely inductive reasoning (as Gaylor does in the film), such a conclusion is, at best, probable, and not definitive. Further, it is only probable if one can assume the truth of the premises used to support the conclusion, for the instant a person can find but one example of an contradicting premise – i.e., in this case an example of something that does not borrow from the past – then the conclusion must be flawed.

Can we find such an example, or are King Solomon and Dr. Lessig correct? Is there no original thought? I personally have a hard time accepting this premise. Spawning original ideas or creating an original thought is, in my humble opinion, what separates us and truly defines us as a species. Sure, the human species uses words, notes, colors, shapes, etc. as the building blocks of its ideas. In that sense, yes, we are using “the past” to create, at least in some fundamental sense. But if you think about it, you’ve heard the old postulation that if you put 50 monkeys in a room filled with typewriters they are statistically incapable of creating a work of Shakespeare simply by striking out random characters on the page and even, perhaps, hitting upon a string of a few words every so often! This illustrates the proposition that the mere existence of the building blocks does not negate original nor creative thought.

King_SolomonEvery now and again, albeit perhaps rare, a human being has a spark of an idea: something is invented or created – something original and unique – that changes, even if only in a small senses, the very nature of life for all humans that follow. It is these original thoughts that propel us forward toward the destiny that is mankind’s, affected forever by the new idea. What it must have been like to be around in the days when the first human species began to formulate language. Creating symbols, be it words or drawings, that communicated their thoughts to another human being. To have been present when the first rudimentary tools were developed to perform the tasks necessary to sustain one’s life in a hostile environment. In the film, Gaylor makes the point that Gutenberg’s invention of the printing press occurred during a time when the “public domain” flourished. His use of this example is, in this case, ironic, since the printing press can truly be defined as one of those creative bursts of unique ideas that only come along one is a few millennia. Since that invention, perhaps only the creation of the Internet has affected the world as much as Gutenberg’s original thought.

So, with these examples, I ask what part of the past did they build on? One might argue that language “borrowed” from the idea of communicating through gestures. Another will say that Gutenberg incorporated language and writing and therefore borrowed from the past. But only in the most general of senses can one seriously maintain that these remarkably useful and unique ideas sustain the principle that “culture always borrows from the past.” I maintain that these are examples of those brilliant moments in human history when someone has that flash of an original idea – whether inspired by God, by his or her muse, by hallucinogenic means, or by heartburn – and creates something that is uniquely and totally new, something that does not, in any substantive sense, borrow from the past. In that moment, we witness the origins of an idea. Perhaps more importantly, when that original idea is expressed in a tangible format, we see the origins of a copyright in the U.S., a copyright that is protectable as a limited monopoly for the life of the author plus seventy years.

In that last conclusion lies the crux of the problem. Lessig and Gaylor make their proposition in the context of trying to solve a perceived problem with current copyright laws: because the length of protection has been extended, there are fewer works going into to public domain and therefore fewer ideas from which to borrow. As a result, “artists” like Girltalk who use pre-existing copyright sound recordings to “mash” together and “create” new songs have fewer popular songs to work with.

In Remix, Lessig says that this results in the criminalization of copying ideas and that, therefore, we should deregulate amateur creativity and decriminalize file sharing. In his words, “chill the ‘control freaks.’” This is where Lessig jumps in to save the day with his “creative commons” license, which uses existing copyright concepts to allow an author to “issue” a license allowing anyone to freely use his or her work, with the only requirement being that of attribution. Ironically enough, Lessig has copyrighted his own books and has, to date at least, not issued a creative commons license for Remix! Now who’s the control freak?

In regard to this issue of works no longer falling into the public domain, while it may be true that extending the period of protection has the effect of slowing down the process, the fact is that our forefathers, primarily Thomas Jefferson, James Madison and Charles Pinckney, clearly anticipated and struggled with the concept that “ideas should spread freely” – as Jefferson says in the quote above – but nonetheless built appropriate safeguards into the copyright provision of the Constitution (Article I, Section 8, Clause 8), providing that Congress may protect the works of “authors and inventors” for “a limited time.” While one can argue, perhaps, that the period of a “limited time” has been grossly exaggerated, one cannot argue that the public domain concept has been abolished.

Frankly, as I see it, giving up on the concept of original thought is not the foundation upon which we as a society should build a debate against the current construct. We should cling to that concept, for it is in that moment – that origin of an original idea – that persons can distinguish themselves from the past, not borrow from it. It is at that moment that our culture is propelled into the future. It is at that moment, I believe, that we are truly alive.

What songwriters can do to protect their ideas when submitting demo tapes to publishers

Every songwriter has heard the words “sorry, we’re not accepting unsolicited material” from at least a dozen publishers. In fact, in a recent informal survey conducted by Law On the Row, two-thirds of the thirty publishing companies contacted indicated that they do not accept unsolicited material. Additionally, the survey revealed that none of the “major” publishers accept unsolicited material.

As unfortunate as this information is for the aspiring songwriter, it is a good business model for the publisher because it avoids idle submission claims — the theory that a publisher “stole” an idea from a songwriter’s demo tape and used it to write another song based on the same idea or concept. This genre of litigation is also prevalent in Hollywood, where movie ideas are stolen almost as often as hooks in Nashville. Is there anything a songwriter can do to protect his or her material when submitting it to a publisher? The answer, of course, is yes.

Register the copyright. While the $30 fee is sometimes a burden on the struggling songwriter’s budget, registration of the copyright is a beneficial and necessary first step in the process of protecting a copyright. Even though the copyright effectively exists from the moment a song is created, registering the copyright empowers the writer to collect statutory damages (i.e. proof of actual damages is not necessary) and attorney’s fees in a submission claim.

Keep good records of all submissions. The first element a songwriter must show in an idea submission claim is access by the defendant publisher (hence the reason many publishers do not accept unsolicited material). You can establish access by maintaining accurate business records of communications and submissions. (The second element, substantial similarity, is a more subjective determination which must be proven by expert testimony).

Establish a relationship with a reputable publisher. By establishing a good, working relationship with a reputable publisher, you minimize your risks and increase your chance of success as a songwriter. Of course, this is the “catch 22”: how to establish a relationship with a publisher without submitting material.Exposure, exposure, and more exposure. Play or have your material played at every opportunity you can — showcases, writer’s nights, gigs, etc. Don’t play your best material — play your “B” songs, i.e, those that are good but don’t necessarily “knock your socks off.” This is not to imply that every audience is full of infringers waiting to take your hook into the studio and “steal your song,” but the fact is that the typical Nashville audience is probably full of other songwriters whose subconscious minds might “soak up” your idea and regurgitate it in the form of a new song incorporating your idea.

Hire a reputable song-plugger. Nashville has a generous supply of good song-pluggers — people who pitch your songs to major labels for a fee, usually $150-300 per month. Find one with a good reputation and hire him or her. Remember to have all agreements reviewed by an entertainment attorney.Join NSAI. Nashville Songwriters Association International is a good organization with services that will assist you in developing as a songwriter and reaching reputable publishers.

Of course, none of these suggestions will guarantee that your submitted material will not be used illegally by a publisher or songwriter. If you feel you have been the subject of blatant theft of intellectual property, contact a reputable attorney.

This article originally appeared in the print edition of Law on the Row, Volume 1, Issue 1, on September 9, 1999.