Last week’s judgment against Robin Thicke and Pharrell Williams for copyright infringement was significant and correct. Yes, it is difficult for most people, even other musicians, to understand what actually happened. Most of the discussion you have seen in social media and in the press consists of inadequate arguments, whether they support or reject the decision. This was about…. sampling. Not some creative person sitting at a piano and writing a song with innocent resemblance to another song, it was a deliberate stolen construction that lost in court.
It needs to be said that there is nothing wrong with being inspired by great artists or having evident influences in a song. That is different than incorporating song specific elements of a work into another work to deliberately copy that song and evoke it in the listeners’ mind. The first is a compliment, the second is theft.
In this case, with the song “Blurred Lines,” the issue was a very sophisticated theft. That is what makes it difficult to understand, even if an average listener can easily tell the similarity. What the Thicke and Pherrell track did was reconstruct the distinctive percussion of the original “Got to Give it Up” by Marvin Gaye and lay a similar “song” on top of it, purposefully similar enough so that an average listener “recognized” it.
The defense argued that there was not enough likeness to the sheet music version of the original. However, what the jury learned is that this has not been the standard for a long time. Most commercial music is copyrighted as a “sound recording” and not as a composition. The sound recording includes the entire performance, engineering, arrangement, as well as the underlying composition.
If Thicke, Pherrell, et al had copied the actual percussion from the original recording and used the sample without permission, no one would have stood for that. The question is whether you can purposefully reconstruct a sample to sidestep that settled law. The answer was no.
Drummers should not worry if they play in the style of Keith Moon under their band’s original song. But if you reproduce his actual percussion performance of “The Magic Bus” with music specifically meant to remind people of that classic by The Who, that is not an original work anymore.
And as a matter of opinion, as a songwriter and producer myself, artists should be creating original art or doing loving covers of others’ works. Even credited samples can be used in an original way. Blurring the line is just not art.
Dropkick Murphy wants Wisconsin Governor Scott Walker to stop using their music at his events. He has been using their cover of the Woody Guthrie song “Shipping up to Boston” as his walk on theme. Beside the obvious irony and tone deafness by the Republican event planners, the band has asked his team to stop and their fans are having fun poking the governor on Twitter. Considering that Walker is strongly anti-union and the original song is by Woody Guthrie, a union activist in his time, it is fair to accept the band’s revulsion of this use of their version as quite genuine.
But there is a problem. The song is out in the commercial world and anyone who pays correct royalties can play their music. There are uses that require direct permission, but the band does not have a business rationale here that is defensible. They may have strong feelings about the political usage, but they simply can’t control it.
Who remembers that Reagan used Springsteen’s “Born in the USA!”? All The Boss could do was comment that the Gipper had obviously never listened to the lyrics.
Secret Studio strongly supports a free market with no discrimination, no censorship of music, and the ability of any customer to license the use of it. So what could Dropkick Murphy do that would demonstrate their politics, presumably having a negative impact on this politician and the issues where they disagree? I say that they should use the market to their advantage. If their politics are an important part of their identity as artists, they can put their money where their mouths are. I mentioned Springsteen, and he does. He includes advocacy and activism as a component of his “business model.”
The band could direct all the revenue from the Walker related royalties to go to an organization that HE is fighting in his political world. Fund some union supporting political PAC. Maybe give money to the Wisconsin Democratic Party. The Walker folks will drop the song soon enough, or, if they don’t, you can fund activism against him. But you can’t have your cake and eat it too. Give cake to his enemies if it is that important to you.
To download the complete album, Uncle Lee Night Night Music, you only need to click on the link below, save and unzip. There is no signup. All of our email and social media are opt-in only. We do not track that you did the download. You do not need to stream it from our site or look at some pop-up advertisement before the download is activated. We actually pay MediaFire extra so you do not have to see their ads. We do recommend them as a vendor…. And the music is actually licensed for your unlimited personal use. So long as you are not using the music for commercial purposes, it is licensed almost like a Creative Commons piece of intellectual property.
In this case, it is a complete album with liner notes, art, and all of the uncompressed .wav master music files in a zip file. So you will need to unzip it to your music library on your device or computer. These are PDDs, (Permanent Digital Downloads). The files are yours to collect, store, copy and enjoy.
I also have each individual song as an available download in MediaFire, These do not need to be unzipped. Here is what it looks like in MediaFire:
All of this content is mine (personally, but we have other artists in our catalog) as the artist and author. But it has been formally “assigned” to Secret Studio®, LLC, which is the only way for something to be published. Most independent artists mistakenly believe that because they own it, they can automatically be the publisher as well. But that is wrong. You have to have two separate parties and an agreement for something to be published in the technical music business sense. My contract with my own company is unique as far as I know. It is designed to allow me to distribute PDDs legally for free for personal use by my audience and still protect my content for enforcement of commercial royalties. All of this content is….. BMI.
So enjoy the free download. This album is all acoustic piano, mostly improvised in a New Age style. It is very pretty and my friends and relatives like it.
Last September 9th, accompanied by much buzz, mostly purchased by one of the largest corporations in the world, U2 released its latest album ‘Songs of Innocence’ on iTunes. While it was advertised as “free,” it was really another dying gasp of the music industry as we know it…. And on some unconscious level, iTunes users realized that this was a stunt and not the beginning of free music on that system. The stunt failed.
It has been discussed in many other places how the result of this stunt was to discredit U2, making them into a disliked brand for the first time in their career. It is also not clear that Apple received their marketing bang for their buck in doing this. Keep in mind that Apple paid U2, (their company, publishers, etc.), $100 million to promote their album this way. In the end, Apple had to release instructions for removing the U2 album from users’ catalogs!
To Secret Studio, it is very clear why this happened, although someone had to try it first to see that this would be the result. In a phrase, this was not a free album release. Apple does not have a free section of their iTunes catalog even though many indie artists would love to have the audience that a free section would give them. People understood that this was more like Apple asking them to enjoy the commercial…
There are ways for artists to license their music for legal free download. U2 did not do this. In contrast, The Secret Studio publishing model does this and the Creative Commons community also has tools for artists to publish and release their works for free legal use by the audience. There is a challenge in retaining commercial rights, separate from the free distribution, enforcing those rights for radio play, use in movies and TV, and other media where royalties are generated. We have developed this separation between commercial rights and free legal distribution in our contract and there may be others who have done this. Even most major acts make most of their revenue from live performance anyway. So music sales are increasingly of interest mainly to the record companies and not the artists.
But Apple does not want to deliver free content from artists, many of which would gladly grow their audience in exchange for the loss of otherwise trivial revenues from music sales. As an unknown, after all, how much music can you sell? But a legal free section would get traffic. Remember Napster? How about a legal version? Even major labels complain about dying music sales revenue. Is music sales even where new artists should be investing their efforts?
If Apple really wanted to innovate, they would create a legal free download option for artists and users in their system. But pushing an advertisement to their entire user community was not innovative. It was a failed marketing campaign.
Publishing Independent Artists – Barriers to the Future of Music
By: Lee Altman, Member, Secret Studio, LLC & John D. Pellegrin, Esq.
January 9, 2015
Recent headlines describing the current state of the music industry are both predictable and inevitable. And it is not good news for artists who aspire to reach a mass market by following the aging model of “getting signed” by a major label. These trends and barriers make it difficult even for major label artists to make money and justify themselves in business terms. The closing window for new artists through A&R, the pressures on royalties and sales, the increased removal of the audience from owning and collecting music they like; these trends are accelerating, not stabilizing. There may be innovations in the wings that can change this dynamic, but the industry and artists are clearly stressed at this time.
Gene Simmons was recently quoted as saying that Rock is dead as a genre1, not because it is unpopular, but because the industry is not investing in new artists in that genre. Taylor Swift has amplified an ongoing discussion of artist revenue in the new digital distribution environment by removing her content from Spotify2, a major streaming service. And those steaming services are becoming a significant distribution channel, often bundled with other services for our devices3. Those channels are becoming increasingly competitive, further challenging the potential for those revenues making it through to the artist.
Gene Simmons’ comments in his recent Esquire interviews discuss the death of “rock” as a genre. Mr. Simmons is one of the most successful musical artists of all time, based on how much money he has actually made. Because of the excellent management that his act “KISS” has enjoyed over the years, including favorable record deals, merchandising, and a touring machine that is a high grossing act to this day, he has more insight than most commentators.
His main argument is that diminished revenue, mainly from the digitization of music, has negatively impacted the artist development process. The music industry has developed new artists through a process called A&R (artists and repertoire), for most of its history. This department finds, develops, makes decisions about materials, publishes, finds producers, and records new artists. The label is then able to sign and promote a finished product. In essence, an artist is “signed” twice, once by A&R and then by the label, itself. Increasingly, and because of shrinking revenues, A&R is evaluating celebrity instead of talent to maximize their potential and limit the risk of their investments. The capital required to stage a major tour is also a cost traditionally footed by the label. Obviously, a contestant on American Idol or a like show, especially a winner, is a lower risk investment than a talent without an existing audience.
With the window for new artist acquisition so small, even American Idol contestants are not sure bets and few have become sustainable acts. (per Wikipedia) In fact, only 69 contestants from all of American Idol’s contestants have released albums, only 19 of those have released a third album, and only 14 have gross sales of over a million units for ALL of their albums. And the entire purpose of this show is to discover new talent. But it gets worse. Very few songs on these albums were written by the artists, so they would have received no royalties for those songs. In fact, they would mostly make their compensation essentially as a hired musician. If the entire history of American Idol has yielded only a handful of artists who can viably release a “next” album for their label, how does an independent artist even imagine success? Is Gene Simmons right that an aspiring rock artist faces a dead genre? If he is correct there is no investment within that genre, and even artists with the head start of some manufactured celebrity are unlikely to become established artists, then the answer is yes. The music industry is not going to create new rock stars.
Prince, The Clash, and many others have famously criticized their own labels for treating artists like property, a very old and valid criticism. But these were criticisms of how the artist was treated within the industry model. The new critiques are different and fundamental to the entire model. The question now is whether music is even viable for artists when major labels can’t afford to find, develop, and promote them?
Simmons asks rhetorically if any significant rock artists have even emerged since 1984. After asking about iconic artists from 1958 to 1983, he asks: “Now from ’84 until today, name some. Just give me a few — artists that, even after their passing, are or will be inescapable.” His answer… very few. And he blames the diminished revenue from the sale of the music itself as the cause of the loss of A&R resources and the smaller pie artists compete for, making them less sustainable once the rare few make it.
1984 is a good watershed to mark the end of the record industry (as it was for a period during the 60’s and 70’s). It is significant because of the adoption of CDs and the rise of music video. CDs were the first digital format. And video production raises the bar for new artists entering the market with a complete product. And we are now two generations past that change.
After CDs digitized the music files, we got Permanent Digital Downloads, (PDDs). Legitimate licensed distribution of PDDs, such as iTunes, have increasingly supplanted sales of physical product. And this distribution type is misunderstood. Those licensed files are PDDs in name only. You are actually licensing access and use of your copies. You can sell your old vinyl albums and CDs. You cannot sell your iTunes files.
PDDs also have the disadvantage for interested parties of being easy to share or pirate. Unlicensed distribution, usually symbolized by Napster, also became part of the landscape. This further undercuts the older model that KISS and Simmons succeeded under. Of course, most artists still failed in the 70’s. But if they sold albums and received airplay, the publisher and writers were paid. Some were paid well.
PDD sales all go to the publisher who places works in the distribution library. Artist contracts vary widely, but there is no standard compensation like the mechanical royalties that were used directly or as a contracted pass through in the physical media sales. Independent artists who place their own content on iTunes and other distributors, using services like CD Baby or Tunecore, actually get a better and more straight-forward pass through than most signed artists. But they are typically lost in plain sight and unable to generate sales like a major artist.
The third generation, streaming services, are now taking up space that PDDs were filling only a few years ago. And compensation for usage of these cloud based systems is done differently than even PDD sales. It seems more similar to how radio play is paid, but there are major differences. First of all, radio pays real old-fashioned royalties to the authors of the works played. Radio royalties are calculated assuming there is a mass audience for every play. Streaming, however, can be measured by the individual play. Also, Streaming services use a revenue sharing model, not a payment rate.2
The payments for streaming are so low in practice that you now see why Taylor Swift (and her publisher) pulled her content from them2. Her team believes they will make more money by forcing their audience to use one of the other distribution channels to access their content. Is it possible that streaming will become a second tier music library where only old and barely commercial content is available? That is a possibility as artists and publishers react to this change.
The key difference in the movement from physical products to PDDs to streaming is who gets paid. Physical product was easily controlled and the label paid artists and writers royalties per unit produced. The method varied between individual contracts. Most were modeled after mechanical royalties under BMI, ASCAP, and the like but tied into the contract. The luckiest artists with the best lawyers simply received the actual royalties, themselves. iTunes, the next generation, pays no royalties to BMI, ASCAP, et al. There is direct payment to the publisher who placed the work on the service. Signed artists have to depend on their contract to govern their distribution. Streaming, the third generation, even further removes the revenue from the artists. The “majors” (Sony, Universal, E.M.I., and Warner) assigned their entire catalogs with non-disclosure contracts that pay them a proportion of Spotify’s revenue based on actual plays for them to split among their artists2. So the immediate artist publisher is not even a party to this arrangement. Artists then have to trust their label for compensation.
Independent artists have it a little better. They can assign their works through Spotify Channel partners, (again, Tunecore is an example) and they are paid directly by those partners, based on whatever the formula is for their individual volume, country of play, the channel partner’s agreement, and other factors. At least this is driven directly by volume of play, even if the rate varies in many ways between and among artists.
Major streaming services like Spotify and Pandora do generate revenue and pay licensing fees. They are not somehow malevolent or hostile to artists. It is more important to observe how they completely remove music fans from the concept of ownership and collecting. These cloud based services now convert your device into a portable music library. Recently, T-Mobile made a play to integrate these services directly into their package by paying your data fees for use of Spotify. A user still needs to have a free or paid Spotify account, but your data access is free. There is a race to the bottom for the prices offered to consumers for their music access.3 And collecting actual copies of music is increasingly old-fashioned and passé.
In this environment, major labels still exist and there are still genres where the A&R model of finding, developing, and promoting artists is still operating. There are avenues to celebrity-like TV contest shows. Country and urban labels continue to identify and release new acts1. The question for artists is whether they can ever navigate this increasingly difficult barrier to entry. And how do they support themselves while they try to get there? Should they put their songs on iTunes? CDbaby? SoundCloud? Spotify? Will anyone find them besides their existing audience? Realistically, there is no evidence this ever reaches a tipping point leading to mass sustaining audiences.
Simmons does point to a counter example worth examination. “But, strangely, today, everything pales before Psy’s “Gangnam Style.” Look up the numbers on that song. He blows everyone else out of the water.1” “Gangnam Style” was a global, money making hit. Its video went viral and children around the world learned the dance steps. Here then is the new model for breaking through — the viral hit. This may become the replacement for the A&R model, a “YouTube solution.” The access issue for artists could conceivably be transformed by the viral model. By definition and instant result, a viral hit IS reaching a mass audience.
The barriers for the viral model are different and the bar is still extremely high. And Psy may not be a perfect example of a “new” artist. He was already a major label artist, well established in the South Korean pop world, with the resources to make his outstanding video. He had the publisher and management in place to capture the viral response and capitalize on the moment.
Keep in mind, the other key obstacle is that you have to produce something truly outstanding to cut through the noise of every other independent and major label artist you are competing with.
So we enter the fourth generation. This is our rock star of the future. They are already self-produced and self-published. They launched their video and it goes viral. They are ready to disrupt the system, which is after all a very rock sentiment.
It is possible to self-publish and self-manage effectively, even when you are practicing in your basement or garage. The next rock star has to do this. They have to own their works to capture all of the revenue. They have to become an industry unto themselves. They have to be ready to capture their viral moment, just as KISS was prepared when they played that showcase long ago and were “discovered.” Their plan is to disrupt the music industry. They are not gaming to become a signed artist. They have gone directly to a mass audience.
So what would a fourth generation of digital music look like for our future stars? They distribute PDDs…. Real PDDs. Permanent files their audience can collect. It is extremely easy to do on a basic hosting service. They ignore the failing market for “music sales” entirely to distribute free legal downloads. This is the next innovation, a contractual revolution. By self-publishing, our star can choose to distribute unlimited free legal downloads for personal use by his/her audience and still retain the normal rights for commercial royalties. A single link on the artist’s own website or embedded in the artist’s own social media provides unlimited global distribution. And the artist encourage his/her own fans to share. There is no pirating.
Because of this hit, our star gets radio airplay, has music featured on TV, in film, and used in advertisements, just like today’s major artists. The new artist collects….. royalties! Interestingly, these revenue streams are not broken in today’s industry. Once our star hits the mass market, the moment IS captured. Voila! The next rock star.
The Future of Music Coalition recently did an extensive study of how independent artists actually make money. Revenue streams include crowdsourcing, gigs, merchandise…. and all of these would be increasingly viable with a larger audience. Our star is ready before they go viral. Now, sales of merchandise skyrocket, attendance soars, crowdfunding the next project actually works, and every fan is a social media asset.
If an artist actually overcomes these new model barriers and finds that viral success, it will be even more bad news for the music industry. All of the tools to implement the viral scenario discussed here already exist. A self-published, self-managed, self-produced artist will make no money for the existing structure and further accelerate the trends that seem so ominous now. But perhaps in exchange we will see the next rock star rise in the next digital generation.
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About the authors: Lee Altman has some 30 years of experience as an independent artist and publisher, and is an innovator in the field of marketing/promoting various musical recording artists through the Internet and social media. Mr. Altman may be reached at 703.994.8033; email@example.com , http://www.secretstudio.co
Secret Studio® was originally founded in 1992. What began as an underground label for the founding artists/entrepreneurs has seen them become thought leaders/innovators in the area of technology and publishing independent/non mainstream music.
John D. Pellegrin, Esq. has some four decades of legal experience in Intellectual Property law (copyright, trademark, and patent referral/coordination). Mr. Pellegrin may be reached at 703.250.1595; firstname.lastname@example.org; www.lawpell.com.
1) Gene Simmons: ‘Rock Is Finally Dead’
The Kiss rocker expands on his thoughts about the past, present, and future of recorded music
By Nick Simmons September 4, 2014 Esquire
2) Taylor Swift versus Spotify: Why her bold move won’t work for other artists
By Emily Yahr November 3, 2014 Style Blog Washington Post
3) The Switch
T-Mobile adds Google Play, Xbox Music and more to ‘Music Freedom’
By Hayley Tsukayama November 24, 2014 Washington Post
Join the #Revolution. Secret Studio®, LLC is the future of independent music publishing.