Industry information that you can actually use
August 2004
BMG/Sony merger, can it actually be good for the indies?
Schwarzenegger to recording artists, "Go audit your label!"
Guthrie song "slandered" for use in political satire?
WOODY GUTHRIE AT THE CENTER OF COPYRIGHT CONTROVERSY His song finally reaches correct audience after almost 75 years. =========================================
If you haven't seen it yet: "This Land is Your Land" is being used for perhaps the funniest political parody of this election year. This is a must must-see regardless of political views.
Even though the late Woody Guthrie (1912-1967) wrote the original song as a political satire, his estate (actually his publishers, The Richmond Organization who bought the catalog) went and got themselves an injunction to force JibJab.com , the Web site that hosts the parody, to cease and desist.
JibJab.com representatives said that they would not. And why should they? If the Supreme Court can call 2 Live Crew's version of "Pretty Woman" a parody, exempt from the necessity for permission of the copyright holders, or payment of royalties because of "free speech," then JibJab's use of Guthrie's melody certainly fits the bill.
Besides, it's really f-ing funny and totally keeps with Woody's sentiments. Legend has it that "This Land Is Your Land" was a Marxist protest song written in response to "God Bless America." The tune was a sarcastic nose-thumbing at big business. Guthrie was stymied that corporations flipped its intentions and used it as a theme to herald American freedom. Hopefully, Jib Jabs' lawyers will dig deep enough into the history of the "parody" exemption in the Copyright Act to learn that the concept of "parody" was created SPECIFICALLY for political satire. i.e: so that satirists criticizing candidates (using the melodies of popular songs of the day in EXACTLY the same way that Jib Jab did) would not be held to owe money to copyright holders.
The irony of the Guthrie estate's actions really underscores the importance of choosing your heirs carefully. Imagine Courtney Love suing for use of a Kurt Cobain song in a compilation about the Grunge movement. Oh wait, I think she did do that. Okay, how about the Hendrix daughters suing the record company over use of a Jimmi Hendrix song in a documentary about the 60s. Oops, I think something like that happened too. Okay, okay, how about James Brown suing his daughters for return of the copyrights he signed over to them because they had him locked up. Dhaaam, that happened too.
Come to think of it, when it comes to family, friends and sharing copyrights I can't think of a positive role model. I'll get back to you on this one.
PS: (My favorite part in the web-flick depicts a Native American being engulfed by a shopping mall. Sad but hilarious.)
Check out the flick: http://www.jibjab.com/
More on Woody: http://www.woodyguthrie.org/biography.htm
Another well researched article on the suit: http://reason.com/links/links072904.shtml
Woody Guthrie's copyright notice "This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do." http://www.cityofsound.com/blog/2002/09/woody_guthries_.html
GOVERNOR SCHWARZENEGGER GIVES EVERY RECORDING ARTIST A BILL
This month the much-anticipated Bill S. 1034 was signed into law by the Governator. This Bill (which we, at the Moses Avalon Company, are proud to say we helped push in a grass roots effort) will override Byzantine auditing clauses in some major label recording contracts that make it damn-near impossible for artists to audit their record companies if they think they are being short-changed on royalties. Prior to this Bill, an artist had over a dozen contractual restrictions on auditing. For example:
1) The label has to approve of the accountant.
2) The accountant can not be auditing any other label or be working for any other artist signed to the label he is auditing (nearly impossible).
3) Artist can only audit the company once during the 15-year contract. But the audit can only go back three years.
4) ONLY royalty statements can be examined, NOTHING ELSE-such as manufacturing records. (Then why bother?)
5) Artist pays for the entire audit, even if it turns out that the label underpaid.
6) The hiring of the auditor cannot be based on a contingency-meaning that the artist has to pay him an hourly fee, rather than on an incentive basis (the way most attorneys and managers in the music business work).
Many of these contract points were rendered unenforceable this month thanks to Senator Kevin Murray (D-Los Angeles) and his Bill. Artists everywhere owe him a thank-you. Labels, on the other hand, are probably throwing darts at his picture.
One label executive who I interviewed in my mind said, "The entire law is a waste of time. We don't deliberately short-change artists. Sometimes mistakes just happen because our accounting software rounds things down to the nearest $1,000,000 in our favor."
In a time when labels are complaining of lost revenues and forcing cutbacks, some analysts are saying that this new law may push them to downsize further, as well as move out of California, where this Bill's jurisdiction resides.
This is not likely. Label execs love the Sunset Strip too much, along with their Malibu beach houses. In addition, the Bill is probably going to follow them. New York will likely consider adopting S. 1034 in the coming years.
This new law gives artists' lawyers a bigger stick in the playground, but it's only a small gesture in terms of reforming an industry where most artists' contracts are tantamount to indentured servitude. I suggest the following entry for Senator Murray's to-do list: Next stop: heath care, reversion of master rights, shorter terms, oh yeah…
…and better music!
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For more on major label accounting see the Royalty Calculator
THE BMG/SONY MERGER: CAN IT ACTUALLY BE GOOD FOR THE INDIES?
Now, I know what is expected of me here. I know, now that the European Union has approved the BMG/Soney merger, that I'm supposed to be for the little guy, oppose it on principle and side with the indie voices who protested the merger. I'd like to. But If I'm really for the little guy, that means siding with what is in his best interests. And I'm not convinced that this merger is not. A Commission was set up by the EU to determine if the merger would disenfranchise the public or the "industry." After months of deliberation they decided that it would not. This resulted in harsh reactions from outraged people like Michel Lambot, Impala President and Co-Chairman of PIAS Group, who said, "Yesterday we were told that two dinosaurs who reach a combined share of 50% of the market with head offices in New York are neither endangering the development of a European Culture nor the existence of thousands of young and small enterprises." Lambot's point rests in the logic that having only four portals to retail instead of five gives big labels an unfair competitive edge over indies, and, therefore, the art itself is being degraded and the public disenfranchised. (Remember that in order to make an antitrust argument, you have to argue that the PUBLIC is somehow being hurt by the merger, not just that you're being out- marketed by a bigger company.) I've heard this argument before and, at times, I supported it. But this is a little different. In the last 20 years the industry has grown from 20 or so individual major labels, to the umbrella of what we used to call "The Big Six." When Polygram merged into UNI years back and turned the Big Six into the Big Five, 100s of labels were absorbed. Resistance was futile. As a result, 100s of bands were dropped from their contracts. Overnight, many Armageddon theories about the future of music were born. None panned out. Why? Well, because that's only half the story. The other side is that the industry has grown from a top-line revenue viewpoint, and the number of major labels held under the umbrellas of the Big Five grew from 31 to 42 in that time. When Distributors merged in the early eighties, many indies found themselves the target of Big Six capitalization. Distributors, swelling with new cash, went on a buying spree. More development money than EVER was filtered down into the creation of new "one-deep" and "two-deep" and "three deep" labels. (My private lexicon that loosely translates into "major labels," "imprints," and "indie labels.") The infusion of new cash is also what gave birth to labels like Maverick, who ended up developing some rather steadfast acts. And let's not forget about the Geffen cash-infusion into a little, nothing label called SubPop, which created the template for the Seattle boom. All of these were byproducts of the mergers. Okay, so what? All this is fine for major-label land. What about the REAL indies? Because REAL indies don't EVER sell out to a major. Whatever. Most "indie" label owners I know (and I know many) are secretly praying for the day a major offers them $10,000,000 for their catalogue. They just keep it to themselves. Okay, to understand why this merger is potentially good for so-called "real indies," you must first strip away a false impression that the media has created by glossing over an important fact: the BMG/Sony merger pertains to ONLY the A&R divisions, not to the distribution arms. (Although it's clear that this will follow in time.) Major label distribution will still have five major portals to retail for now, but, in theory, there will be fewer A&R pipelines to those five portals. I see why this might be bad for an emerging artist looking for that plantation-slave contract from a major, but I'm at a loss to understand why this is bad for indie labels. This A&R merger means that there are less ports for artists to look to for big advances. Once turned down by the Big Five, an artist looking to be signed has little choice but to seek an indie deal. Now, instead of five places to look for that big advance, there are only four. How is this bad for indies trying to acquire talent? Shouldn't they now be expecting MORE solicitations? Doesn't this mean more choices for indie labels and better bargaining power? And doesn't that then mean that the public gets the best of the best? Bottom line: the presumption that this merger means fewer opportunities for artists than existed pre-merger is probably unfounded. The argument that it disenfranchises the pubic goes down the drain with the argument in the paragraph above. History has shown that the industry expands and contracts like the Big Bang theory. Right now it's contracting to trim the fat. There will undoubtedly be an expansion, probably a large one, in the next few years. When it happens many "indies" will be the beneficiaries, receiving funding from the Big Four (probably the Big Three by then, i.e: WEA/EMI) and their acquisition budgets, bloated and hungry from years of hibernation. It will be party-time all over again. I, for one, will be keeping a light on. --- For more information, please visit: http://mi2n.com/press.php3?press_nb=69185 http://www.mi2n.com/press.php3?press_nb=69148
Mo out.
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