The Big Shake Up In Licensing On The Horizon

Everyone acknowledges that the current copyright law that we live under is outdated, but it's been really difficult getting any updates to the law passed in recent years, mostly because of special interest groups and the fact the a complete overhaul is required rather than just a few band aids.

That overhaul just got a little easer thanks to a 245 page report issued last week by the US Copyright Office officially throwing its weight behind some big time changes that would definitely benefit copyright holders.

The paper made a number of specific suggestions, many that will bring some large media corporations (like broadcasters, for instance) kicking and screaming into the 21st century. Here are some of the things proposed.

1. Everywhere in the world except the United States artists get paid when one of their songs is played on the radio (the songwriter gets paid, but not the artist). The artist gets paid when a radio station or streaming service streams online in the US, but not for traditional terrestrial airplay as it's claimed to be "publicity." The broadcasters have successfully lobbied forever about how their business would be destroyed if forced to pay artists while they've raked in billions. Now the Copyright Office finally agrees with what artists, managers, record labels and even the general public has been saying for years - let's pay the artists for airplay.

2. There's a funny loophole in copyright law where a song from before 1972 can be used by radio or streaming services without payment to the copyright holders. There's been a number of high-profile lawsuits (The Turtles successful suit being one) about the fairness of this doctrine, and the Copyright Office agrees that pre-1972 songs should be treated just like post-1972 songs.

3. The amount of money that performance rights organizations like ASCAP and BMI can collect is governed by a piece of anti-trust legislation called the Consent Decree. Basically what it means is that these organizations must offer licenses on equivalent terms, but those terms haven't been updated to keep up with the latest technology or the evolution of the business, so copyright holders are still bound to a rate that's decades old. It's actually a much deeper subject, but the gist is that the Copyright Office is finally agreeing that the Consent Decree should be reevaluated and updated for the Music 4.0 world we live in.

4. Producers get a royalty on units sold, but the payment can either come from the record label or directly from the artist, which means that it can be really difficult to get paid sometimes. The Copyright Office recommends that producer payments now be administered by Soundexchange as a way of freeing the label and artist the burden of accounting, but also making sure that the producer gets paid as well.

There are other recommendations in the paper, but any one of the above will bring sweeping changes to a system that badly needs it. Read the full report.

Vinyl.org - The Netflix Of Vinyl

Here's an interesting idea that's sort of a cross between a record club and Netflix, but it deals exclusively in vinyl. In fact, it calls itself the "Netflix of vinyl." It's called vnyl.org, and for $15 a month they'll send you a stack of vinyl records tailored to your tastes.

First you choose the category that you're interested in, and the service curates album choices for you and sends you a stack. If you choose to keep any of the records, it will cost you $8 to 12 each. If you don't want them, pre-paid envelopes are provided to send them back.

The site is in invite-only beta mode right now, and while it sounds like a great deal, expect for it to see a lot of scrutiny as an illegal rental model. If you take notice, any vinyl or CD rental services that have popped up in the past have been quickly beaten down for breaking copyright laws.

It's legal to try before you buy, but you can't rent with an option to buy, so just how vnyl.org plays this will have a lot to do with if it succeeds or not.

Still, any service that gets more vinyl into the hands of consumers can only be a good thing for artists, as long as it's legal. Check it out at vnyl.org (check the spelling - it's vinyl without the "i").

"We Don't Need More Copyright" Says Tom Bell

One of the things that the vast majority of songwriters are looking for is more copyright protection, or at the very least, a revision of what's already on the books. Chapman University law professor Tom Bell has quite a different viewpoint in that he believes that dialing back copyright law will actually spur greater creativity.

Bell has a new book out called Intellectual Privilege: Copyright, Common Law and the Common Good, and in it he states that the existing copyright law contradicts our constitutional right of free expression. His solution is to use common law instead, which means that we'd use the established laws that cover ordinary property that already exist and work well in courts instead. That would encourage artists to create works that are considered a legal gray area now, like mashups, tributes and parodies.

Have a listen to what he has to say, as he makes a very persuasive argument.

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The Turtles Sue SiriusXM For $100 Mil

If you're like me and like to occasionally sample some of the songs of the 50s, 60s, and 70s on SiriusXM, you may soon find that option no longer available thanks to a $100 million class-action lawsuit brought about by the 60s band The Turtles.

The Turtles had a number of big hits back then that get regular airplay on the Sirius 60s On 6 channel like "Happy Together," "It Ain't Me Babe," and "She'd Rather Be With Me," but the band feels that SiriusXM has not paid adequate royalties on these and thousands of other songs that date before 1972.

On February 15, 1972 all recordings began being protected by paragraph 114 of the Copyright Act, which provides limitations on exclusive rights and spells out the way that artist's are compensated. Unfortunately the law is somewhat murky on what happens with songs before that point, and The Turtles (Flo & Eddie - Mark Volman and Howard Kaylan) feel that Sirius has overstepped their bounds in that regard.

While millions of dollars are a big part of the picture, what might be even bigger is that the suit also seeks an injunction to prohibit any pre-1972 songs to be played on SiriusXM until the suit is settled. That would be a shame, since it sure is fun to hear some of the old songs.

Just for the record, Mark Volman is now an associate professor and director of the entertainment industry studies program at Belmont University, where I have spoken at in the past.

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EMI vs. Artists: The Big Battle Ahead

Leave it to a major label to turn something meant to benefit artists into a potential business busting battleground. EMI was once a welcome home to some of the biggest names in the music business (The Beatles, Pink Floyd, Coldplay and Bob Seger to name just a few), but if they continue on their present path they're going to have the mother of all lawsuits on their hands, according to former MP3.com ceo and industry gadfly Michael Robertson.

It all started a few years back when Congress changed the copyright law so that artists had a chance to reclaim ownership of their works after 35 years (see my previous post on the subject). Obviously there's been a lot of artists who were taken advantage of 35 plus years ago, so beginning in 2013, it was going to be possible for them to get the rights to their songs back and therefore finally collect their fair share of the royalties, thanks to the new law.

But EMI doesn't look like it's about to let that happen says Robertson, declaring that their works were actually a "work for hire," which is a term that basically means "we paid you some money to produce this material for us, and now we own it all and you own nothing." Bottom line, it means that these artists might not only get their rights back, but may not even see another dime in royalties as well.

So who are the artists that EMI is trying to take to the cleaners? Here's a partial list:

Adam Ant
Amy Grant
Asleep At The Wheel
Beastie Boys
Ben Folds Five
Bill Evans
Billy Idol
Bob Seger
Bob Welch
Bonnie Raitt
Boz Scaggs
Crystal Gayle
Daft Punk
Duran Duran
Everclear
Fats Domino
Frank Sinatra
George Clinton
Herbie Hancock
Iggy Pop
Katy Perry
Keith Urban
Lenny Kravitz
Megadeath
Missing Persons
Norah Jones
Paul McCartney
Pink Floyd
Sammy Hagar
And the list goes on and on.

To say the least, if this is really true EMI is playing not only with fire, but with dynamite, since some of the names on the list are extremely well financed and very prepared to do battle. If nothing else, it should make for an interesting couple of years should they follow through on their plans.

For the full list as well as Michael Robertson's insight into this story, go to Hypebot.

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Supreme Court Rejects Music Download Case

On Monday the U.S. Supreme Court denied an appeal on a ruling that could have had serious revenue implications for all songwriters, with virtually 100's of millions of dollars at stake.

ASCAP had sued the United States government in the hopes of changing a traditional Internet download of sound recording to that of a public performance of the recorded musical work under federal copyright law. ASCAP had argued that digital downloads were also public performances for which the copyright owners must be compensated, but a federal judge and the appeals court rejected that argument, so the organization took it's final appeal to the highest court in the land.

"Music is neither recited, rendered, nor played when a recording (electronic or otherwise) is simply delivered to a potential listener," the appeals court ruled.

Being a songwriter myself, I'm all for getting more royalties at a higher royalty rate, but in all honesty, I just can't see how this argument holds water. A live performance and a recorded performance are simply not the same, as any engineer or producer will tell you. They're completely different animals. If the Supremes would have reversed the decision, it would have opened a huge can of worms with CDs, radio and streams eventually having to pay extra, potentially collapsing the whole music distribution system as we know it.

On second thought, maybe this was a missed opportunity to start all over again. What do you say Supremes; care to take another look?

The case is ASCAP v. United States, No. 10-1337, if anyone is interested.

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Songwriters May Soon Get Their Rights Back

Recently there have been articles all over the Internet and newspapers about how songwriters like Billy Joel and Bruce Springsteen will be able to get their some of their publishing rights back very soon.

The reason is that in 1978, Congress passed a new Copyright Law that stated that after 35 years, songwriters would be able to reclaim publishing rights from record labels. That date is coming on January 1, 2013, after which artists will have a five year window from the time their song was created in which they can petition to reclaim their rights. Artists still must file termination notices at least two years before the date they want to recoup their work, and if they fail to act, their right to reclaim their work lapses.

So why would a record label own their publishing in the first place? Even back before so called "360 deals," record labels knew that the real money in the music business was in publishing, so a stipulation of most recording contracts was that they would assign their publishing to the company's publishing company. For a new artist this wasn't such a bad thing, since that usually meant that they got an additional advance, and a large publishing company could place the songs in places (like movies) that a small one didn't have access to.

Still, after you've had some success and you see at least a quarter (maybe even half) of your songwriting income going to the label's publisher, it does give one pause. Today there are so many less expensive alternatives to a major publisher that it would seem that the only songwriters who pass up this opportunity will be those with real estate attorneys acting as entertainment attorneys. Bob Dylan, Tom Waits and Loretta Lynn have all filed petitions already; they'll get the snowball rolling down the hill. Are you or someone you know eligible?

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