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By guest student writer, John Freund

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

During its humble beginnings in the mid-20th century, production was extremely simple, quick, and required only a small handful of people. Artist and Repertoire (A & R) men personnel would discover and contract talent, record the mmusic-productionusicians with several microphones in several sessions, mix the project together and complete the mastered tracks in a few days[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MA: MIT, 2008. Print: 155.

Further Reading

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The Senate Judiciary Committee is holding a high-profile hearing  today on the subject of imposing additional performance royalties on so-called “over-the-air” or “terrestrial” radio stations (I’ll just call them OTA’s in this article).  Investigative hearings such as these are usually precursors to legislation being introduced on the subject.  898993_antenna_4Grammy winner, Lyle Lovett and Chicago-based singer-songwriter Alice Peacock testified before the Committee this morning at 9:30 ET.  Their testimony was broadcast live at C-SPAN.

So, what is the issue.  OTA’s and the music industry are currently engaged in one of the biggest industry and lobbying battles to hit Washington in quite some time.  The OTA’s fired a recent shot when a concurrent resolution was passed by Congress.  Now, the music industry is firing back. 

One of my recent blog entitled New concurrent resolution, H.Con.Res 244, introduced to combat performance royalties for record labels gives some background on the issue, which is basically this:  Currently, OTA’s pay performance royalties to ASCAP, BMI and SESAC in the U.S. for airplay performances of the musical composition copyright.  They do not, however, pay a performance royalty to the owners of the sound recording copyright for over the air performances of the copyright.  The sound recording copyright is distinct from the musical composition copyright.

This is because when Congress introduced new legislation in the mid-90’s to grant sound recording copyright owners a right to performance royalties, it specifically excluded OTA’s from the legislation on the basis that the artists and record labels who owned the sound recording copyrights benefited from the publicity of over the air performances, which offset the need for payment of a performance royalty.    Keep in mind, again, that this does not apply to the performance royalties paid to songwriters and music publishers.

The effect of the Digital Performance Royalty in Sound Recordings Act of 1995 is that only digital performances of the sound recording copyrights are entitled to compensation.  This applies only to Internet webcasters, Cable Radio and Satellite radio stations.  These types of services — Pandora, Sirius, XM Radio, Last.fm, for example — pay performance royalties to both the owners of the musical composition copyright and the sound recording copyright.  Many industry groups are rallying to rectify what is viewed as an unfair advantage for OTA’s.

One such group is musicFIRST, which stands for “fairness in radio starting today.”  This organization is made up of a large and impressive group of recording industry groups and well-known artists.  Unfortunately, the RIAA’s involvement in this organization has diminished its reputation on many blogs, such as this article entitled Lovett goes to bat for radio royalties, the credibility of which is call into doubt by the fact that the writer is ostensibly unaware of Lyle Lovett’s reputation and notoriety.  But don’t make the mistake of slanting your opinion against musicFIRST based on that organization’s involvement.  Check out the website and seriously consider the issues and you’ll probably understand their perspective.

There is tremendous validity to the argument that radio broadcasts no longer hold the same sway over consumers that they did in 1995.  One research study conducted by Dr. Stan Leibowitz, an economics professor at the University of Texas, compared record sales and music radio listening habits in nearly 100 cities across the United States and found that exposure for a song on the radio was a substitute for purchasing the music and, therefore, actually had a negative impact on sales of music.  Critics point out that the study was funded, at least in part, by the musicFIRST coalition and say that there are studies which indicate the opposite, that is that radio airplay stimulates interests in new music and therefore encourages sales.  Think about your own habits – when was the last time you heard a song on the car radio and rushed to buy it?

Another argument propounded by the OTA’s in opposition to payment of royalties to the owners of sound recording copyrights is that it would put them out of business.  They simply can’t afford to pay more royalties for the music they use.  Of course, Internet webcasters and Satellite and Cable radio providers are saying “talk to the hand . . . call waiting!”   But the truth is that OTA’s get the bulk of their revenue from advertisers and their revenue increases if they attract larger audience by playing the latest music.  Furthermore, stock analysts are predicting that advertising revenues, in general, are on the increase for the foreseeable future.  One researcher, George Williams, reportedly found that the annual growth of radio advertising rates from 1996 to March 2007 was 10% a year, outpacing the Consumer Price Index by more than three times its 3% a year rate.  It is very doubtful that OTA’s revenues would be seriously altered by this legislation, in fact, the OTA’s would more than likely simply pass the additional costs on to advertisers.

The bottom line, in my view, is that the legislation, when it is finally proposed, will create a level playing field for the broadcasting industry, providing that both digital and OTA’s pay the same royalties.  This seems fair, doesn’t it?  Now, whether the powerful OTA lobby will prevent the passage of such legislation is a blog for another day. 

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Abraham Maslow’s famous “hierarchy of needs” places self-actualization as the pinnacle of human behavior.  To illustrate what the phrase “self-actualization” meant , Maslow said:

“a musician must make music, an artist must paint, a poet must write, if they are to be ultimately at peace with themselves.” 

Of course, the thing that is important to note about Maslow’s hierarchy is that physiological needs are at its base, i.e., a person’s basic needs must be met before Maslow's Self-Acutalization hierarchythat person can reach self-actualization.  In other words, “a guy’s gotta eat”!

Maslow’s theories shed some light on the ongoing social debate on the Internet regarding whether musicians would continue to produce quality music if copyright as we know it were to be abolished.  A different argument, though very related, is whether money motivates one to be creative. 

One movement advocating such ideas is the “Free Culture Movement.”  Another less extremist movement is Stanford professor, Lawrence Lessig’s “Creative Commons” group, which advocates modified forms of traditional license agreements as a social compromise to “reconcile creative freedom with marketplace competition.”  Watch Lessig’s video, released today on TED, entitled “How creativity is being strangled by the law.”   For another this interesting discussion, see the site Against Monopoly.

The underlying assumption of some of the parties involved in the debate, which is ostensibly grounded in the record and movie industry’s recent campaigns against infringers, is that all intellectual property should be free for the public to use without payment and that the antiquated copyright laws should be modified or abolished.   In my opinion, this extremism  ignores the foundation principle of Maslow’s hierarchy of needs, that in order to achieve self-actualization, an artist’s or musician’s base needs must be satisfied.

Proponents of the free culture movement observe that creativity survived many years without the structural form which copyright superimposed upon it.  Indeed,  it is often observed that the great works of Mozart were created without the existence of copyright laws.  Don’t forget, however, that Mozart wrote many of his works while being employed by benefactors such as the Prince Archbishop of Salzburg, Heironymus Colloredo  and Emperor Joseph II of Vienna, names that are certainly not as prominent as Mozart’s.   In fact, where would the world of the arts be without the billions of dollars that have been donated by benefactors such as J.P. Morgan, James Smithson, Bill & Melinda Gates, Andrew Carnegie, Henry Ford, John D. Rockefellar, just to name a select, if not elite, few.  So, while it is true that “a musician must create music,” it is also true that a musician has to eat. 

Long before the existence of copyright laws, there was a strong relationship between money and the creation of arts and music, and it will be that way until we abolish our system of currency as we now know it.   Walk around any great city and witness the existence of hundreds of pieces of commissioned artwork.  Listen to the commissioned works of Mozart, Beethoven and other great composers, who existed at the hand of benefactors.  Walk through the Museum of Modern Art and look at the works of art generously donated by J. P. Morgan and other benefactors.  Whether it be a king or a record label, money benefits art.  Creativity, like it or not, is often inspired by the almighty dollar, whether that is represented by paper currency or some other bartered for compensation which meets our base needs as human beings.  

That’s not to say that people would not continue to make music or art if they were not compensated for it – they would.  That is an entirely different question in my mind.  People’s hobbies and past time activities are in a slightly different class than, say, the copyrighted works of Don Henley.  If great singer-songwriters such as Henley could not make a living at playing music and writing songs, I would venture to bet that most of us would never had heard of The Eagles.  Again, even a great musician has to eat.  If the musician cannot meet his base needs doing what he loves to do, a musician will meet those needs some other way and, therefore, there would be less time to do what he loves to do.   So don’t confuse the musings of the masses with the creations of the geniuses.

The only legitimate question remaining, then, is how should a musician get paid for the music he or she creates?  How should the songwriter get paid for the songs he or she writes?  The answer, in the United States, is by virtue of the rights created in the Constitution, Article 1, Section 8, Clause 8, which gives Congress the right:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Investors the exclusive Right to their respective Writings and Discoveries.

The portion of this Clause dealing with the arts is further codified in the various Copyright Acts and amendments thereto.  In a nutshell, the Copyright Act creates a legal fiction, called intellectual property rights, which gives creators certain exclusive rights in their works, including the rights to produce copies, create derivative works, perform or display the work, and to sell and assign the works, among other things. 

The laws in the U.S. are based loosely on English concepts and laws that date back to the 17th and 18th century, which were a direct result of the invention of the printing press.  The first actual copyright law was the Statute of Anne, or the Copyright Act 1709.  Thus, the concept of “copyright” is a three-hundred-year-old concept that has survived the evolution from printing press to piano rolls to digital media, and I have little doubt that it will continue to survive through the technological age, despite the rumblings of these groups. 

As the law often does, it must evolve, albeit it ever so slowly, to encompass these new technologies. The good news is that the debate that is ongoing in the new virtual marketplace of idea will help us formulate new and improved amendments to the laws that will hopefully address the perceived dichotomy between the rights of free speech and free culture and those of the creators and owners of intellectual properties to receive just compensation for their efforts and investments.

In the end, this blog is my response to viewing Larry Lessig’s video, as I said, posted today on the TED website, entitled How creativity is being strangled by the law (See the link above).  In it, Lessig harkens back to the days of Sousa when children sat on the porch and sang the songs of the day.  Lessig told of how Sousa decried the advent of the phonorecord machine as the demise of creativity.   He points out that in our current state ot technological advance, copyrights should be “democratized” because the new generation of children use copyrights to create something uniquely different, that is to say they use the copyrights of others as “tools of creativity” and “tools of speech.”  Since every such usage requires a copy, the arguement continues, every such usage is presummed by the establishment to be an infringement of someone’s copyright.  Lessig’s solution is that the creator should simply license the use of their creation for free in the instance of “non-commercial” usages, and retain the rights to exploit it commercially.  He refers to this as the “Sousa Revival.”

My question to Professor Lessig is this:  why does the fact that an entire generation of Internet downloaders who are using copyrighted material to create derivative works mean that the rights of copyright holders have to be abolished or even diminished?  Why do the creative whims and urges of those who utilize other people’s copyrights to create different, derivative works supercede those of the people who created the original works?  Why should they?  Are the audiovisual images of a actor portraying Jesus Christ lipsyncing to an infringed copy of “I Will Survive” so creatively valuable as to supercede to the rights of Gloria Gaynor to distribute the original? (This creation is one of the examples in Lessig’s video presentation).  Consider this carefully before you answer, as it is a slippery slope.

This brings me to another relevant observation: people would generally not want pay money to hear most children sitting on the porch singing their songs, unless that child happens to be a Don Henley protegee.  That is the difference between most of the music ony MySpace, for example, and the music that is generally downloaded on iTunes.  There is a tremendous difference in the value of the spontaneous, albeit creative, songs of a child and the intricate lyrics and melodies which are the product of a genius the likes of Don Henley.  That is precisely why almost 100% of the product downloaded from Napster in the early days was product that had been recorded and marketed by major record labels.   It had intrinsic value.

Let me illustrate these principles with an example from the world of physical property.  Person A has a piece of property populated with a lot of trees.  Person B, owns the lot next door, which is flat and has a nice stream of water running around its perimeter.  Person C comes along, see this situation and, overwhelmed with creativity, cuts down Person A’s trees and builds himself a house on Person B’s lot and claims it as his own.  When Persons A and B confront him, stating that the law says he cannot do what he did, Person C responds that his creativity is being strangled by the law and, therefore, the law should be abolished.  Is Person C making a good argument?  Is Person C likely to prevail in court?  No.  Yet, this is the argument of the Free Culture Movement and, in some ways, of the Creative Commons.

Just as the law creates real and enforceable property rights for a person who owns a plot of real estate, the law creates intellectual property rights so that person can own an intellectual creation and enforce his rights to the exclusion of those who usurp it.  Abolishing the one makes no more sense than abolishing the other.   Abolishing the intellectual property right a person has in a copyright, therefore, devalues the creation.

Now, imagine that Person A’s lot was, instead, full of reeds and twigs and Person B’s lot was full of ravines, rocks and arid soil.  Person C would never stop to take a second look!  The barron options now before Person C would NOT inspire creativity in most people.

As further illustration of this principle of intrinsic value, ask yourself whether the Jesus video referred to earlier would be nearly as popular, nearly as creative, if the actor’s own singing voice had been used in place of Gloria Gaynor.  The answer is probably no, because the reason that the video of Jesus Christ singing Gloria Gaynor’s “I Will Survive” is so popular is because it incorporates a copyright that already has intrinsic value and, therefore, adds additonal value to the video.  The arguments of the free culture movements omit or overlook this concept of intrinsic value. 

What I do like about Lawrence Lessig’s movement, Creative Commons, is that it is, in the final analysis, based on the principles of the Copyright Act, i.e., that the copyright has value and that its owner has certain exclusive rights, which he can assign to others.  Lessig’s solution is essentially using existing copyright laws to create a unique license that attempts to strike a balance between fair use and full copyright reservation.  In the end, however, the license are based on the rights already granted in The Copyright Act, proving that the copyright laws as they currently exist allow for the very thing that these groups seek.  I cannot agree with him more in that respect.

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I have often advised my clients in the past that the new direction for independent artists is what I refer to as “guerilla” marketing, meaning finding alternative means of marketing your product.  One of the most explosive methods of doing that over the past few years has been the Internet.  One of the problems with marketing yourself on the Internet, however, is how do you get people to come to you?  The void of the Internet is so vast, that finding an artist whose sound is something that matches your musical taste is even more difficult than finding a needle in a haystack! 

So, it is a beautiful thing to see an artist actually breaking into the Billboard charts catapulted in large part by her success on the Internet, particularly her MySpace page.  Her success story gives hope to every artist whose desire is to put out a record, throw it up on the Internet, and have people flock to listen.

Enter Indianapolis, Indiana singer-songwriter Sally Anthony whose  “eTeam” of over 125,000 fans, including over 40,000 friends on MySpace, helped propel Anthony to stardom.  Thanks in largem_6c31918cf33c79bad2c07905f6783a30 part to that online community, Anthony’s first album, Vent, released in 2004, sold over 175,000 physical and digital copies.  Two releases from that album spent months on the R&R pop chart.

Her new album, Goodbye, released October 23rd, has already sold 14,000 digital copies.  It has already reached the top of the pop charts at walmart.com, FYE Digital and iTunes and on November 7th landed at No. 9 on the Billboard Heatseekers Chart.  The album is being distributed by her company, Gracie Productions, through Imperial Records/EMI.

Anthony is succeeding because she is treating the music industry as broader than just the radio promoted, hit-driven, plastic disc business the major labels seem stuck in.  She is viewing the music industry as an entire package, generating buzz wherever she can, from the ground up rather than from the top down.

I predict that we will start to see more and more of these types  of breakthrough artist as the popularity of YouTube, Facebook, MySpace and other online communities grow in popularity and as the pioneers of the Internet find more creative ways to index diverse product, match it to the tastes and purchasing patterns of Internet users, and make recommendations – sites such as  LivePlasma, Pandora, Audiobaba, Last.fm, MyStrands and, of course, Amazon,

As radio fades into the annals of history alongside the monolithic corporate conglomerates that are r060719_Books_longtailChartecord labels, these innovative types of indexing sites will help those artists in the deep dark recesses of the “long tail”  find an audience for their music.  By the way, if you haven’t read Chris Anderson’s treatise on this subject, The Long Tail, buy a copy and dissect it now.   The long tail consists of that product that is not in the mainstream — not on the shelves of Wal-mart — but product that is still sought after and purchased by people.  Maybe it’s only ten people per month, but people still want and buy it.  It is the millions of artist that fly below the radar of the “hit-driven majors.”  These are the artists who can benefit from the exposure the Internet can provide.

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What songwriters can do to improve their negotiating strength in an entertainment deal

A very common theme among my songwriter and artist clients is the subject of how they were “ripped off” by their record label and/or music publisher (for purposes of this general publication, I’ll refrain from using the actual, more vivid terms often used to describe the process!). They often feel as if they have not received the benefit of the bargain.

As an attorney who negotiates deals for these types of clients on a routine basis, however, I am frequently placed in the precarious position of walking a tightrope between trying to obtain as many concessions as possible from the opposing party while not pushing so hard as to, in my clients’ words, “blow the deal.” My clients want the best deal possible, but are very rarely willing to walk away from a deal if the terms and concessions are not good. As any good negotiator can tell you, your deal is only as good as your best alternative to the negotiated deal.

In some ways, this willingness to settle for less in order to salvage the deal feeds the very beasts songwriters and artists need to tame, i.e., the record companies and music publishers. Artist think that record companies have the ability to give them instant stardom – in fact, that is the dream of almost every struggling songwriter and entertainer. On the opposite end of the spectrum, however, record companies most certainly know that many artists are willing to “sell their soul” in order to obtain a deal.

The infamous controlled composition clause is the perfect example of how far an artist is willing to go for “the deal.” The United States government requires that a copyright owner be paid a minimum statutory rate for the mechanical reproduction of their creative work. The record label, however, turns to the artist and says, “Despite the government minimum, will you consent to accept only seventy-five percent of that to which we’re required to pay in order to get a deal?” “Furthermore,” the record label says, “we’ll only pay you seventy-five percent of statutory rate on ten compositions, no more, o.k.?” As incredulous as those questions might sound, the majority of artists throughout the history of the controlled composition clause have answered “yes” to those questions. From the record companies’ perspective, this negotiation process is just good business.

This disregard for the government’s requirements does not often occur in other industries outside of the music industry. If a company interviewing a potential employee suggested that the employee agree to an hourly rate that is less that the minimum wage, the employee would balk, and most likely the company would be reported and fined. The difference, of course, is that the employee in this scenario has a multitude of alternatives, as there are numerous companies to which he or she can apply that will pay minimum wage. That is not the case, of course, with entertainers. It has been said one’s odds of getting struck by lightning are greater than the odds of getting a record deal! Most entertainers are desperate for “the deal.”

So, the question then becomes “What is the deal worth to the songwriter or the artist?” Is it worth giving up possession of your songs without the possibility of reversion in order to receive a monthly draw in order to get that publishing deal? Is it worth giving up twenty-five cents on every mechanical dollar earned in order to receive a cash advance and the remote possibility of future royalties from a major label in order to get that record deal? If the songwriter or artist has no alternatives, then the answer to those questions may very well be yes. Or, it may be that no deal is worth giving up such concessions. The answers to these questions are as diverse and individual as the artists and their particular situations.

In order to better understand their own position, then, songwriters and artists should carefully consider their “sacred cows”– i.e., the points on which there is no negotiation – prior to entering negotiations. The difference I have witnessed between fresh young songwriters and experienced writers who have been around the Row for a while is the wisdom to know what is important to them and what is not. If a songwriter has a young child, she is likely to be more willing to walk away from a deal without a reversion clause than is a single songwriter with no family obligations. The recording artist who has a track record of selling more records the first time out than any other artist is in a better position to walk away from a deal that includes a controlled composition clause. The potential recording artist who has offers from three major labels is in a better position to obtain a higher royalty rate than the artist who has been offered a development deal.

The point is, the songwriter and the artist should think about what is important to them in terms of a deal and carefully consider their “bottom line,” the point at which they are willing to say “”no deal.” These issues should be discussed with an experienced entertainment attorney. Develop two lists with your attorney: (1) a wish list of provisions for improving the deal and (2) a “drop dead” list of items which must be included in the agreement or the deal is off, which hopefully includes a good alternative to the negotiated deal. Remember, the more alternatives a person has to the deal in hand, the better his or her negotiating strength.

This article originally appeared in the print edition of Law on the Row, Volume 2, Issue 1, on March 21, 2001.