ASCAP’s Buggy Whip Protection Act

dima2.jpgI caught word of the excellent Royalty Week interview with Digital Media Association Executive Director Jonathan Potter via Radio and Internet News. RAIN reported on DiMA’s response to the CRB decision; Potter’s take is exactly the same as mine:

I think the marketing departments and the promotions departments at the record companies are at war with the finance guys and the lawyers. The lawyers want to confirm that they have the right, and they have the ability to cut anybody’s throat whom they don’t like that day—take them to court. The finance guys need money. Their business is falling off a cliff, they need current revenue. The marketing and promo guys say, “Wait a minute, we should be giving these guys the music, and letting them play it. And begging them to play it.” The record companies need to figure out the business of the future, and they’re still figuring it out. And I think that Internet radio is suffering as a result.

“Begging them to play it.” Web radio has the potential to reach more listeners, and with more focus, than ever before. Yet Scarecrow John insists there’s no promotional value.

Potter’s thoughts on another matter, the recent ASCAP suit requesting an broad expansion of the definition of a “public performance,” are also dead on. If the court grants ASCAP’s request, listening to a song on an iPod would be considered a public performance subject to royalty.

Potter sees this desperate act as an inappropriate response to a dying business model:

Creators of new technologies, those creators of new business models, should not have to pay those who relied on the old business model merely because they changed the way things operate. The manufacturers of the automobile did not have to ensure employment for the employee of the buggy whip company when the automobile put the buggy whip out of business. And I’m not being harsh, this is reality, it’s economics. If you fly an airplane to get from New York City to Boston, the owner of the toll road in between can’t say, “Hey, transportation of any form needs to pay a toll on my toll road, because you could have taken my toll road.” The answer was I didn’t, I flew.

Read the entire interview at the Royalty Week website. You’ll need to the Acrobat Reader to view it.

8150 Lawsuit Foments Intense Copyright Discussion

copyright.gifMy recent Local Rhythms post on the legal action taken against Vail’s 8150 club has generated a surprising amount of feedback. Most responses side with the artists, and many of them are factually false. It’s a very interesting discussion, and after stripping the lies away (the bands aren’t getting sued, the club is; Zeppelin members are signed as plaintiffs, so their names aren’t being used by the Vail Daily simply to get attention for a sympathetic scofflaw), many good points are made.

I should point out some facts left out of my article. There are two types of cover bands. One inserts a favorite song into a set of originals, or more to the point, learns how to shape originals by playing a variety of music from artists they enjoy. Sometimes this is an icebreaker for groups who have their own material but are too self-conscious to play it for a strange audience.

Monetizing the music they play would, in my opinion, destroy a lot of bands who typically get paid little or nothing to perform in the first place. There’s a great discussion going on at coverville.com that addresses this situation quite cogently. I’ll repeat one of the better posts here:

I’m in a band. A cover band. And in my home town of Ottawa, Canada, 90% of bands are cover bands. I can only imagine what it’s like for the rest of the world.

If the nightclub recorded the bands and made money with the recordings, that’s a different story. It’s copyright infringement since it lessens the commercial value of the original songs — by stealing money away from the creator.

But if it’s not, this falls under “fair use” of the copyright law. And I would even add that, the money the club owner makes is not from covers being played (which probably is the argument, here), since they are providing services, atmosphere, location, etc.

They are paying the bands to perform. Bands should be the ones held liable, not the club owners. And even then, I believe they shouldn’t. Do bookstores pay licenses for people coming into their stores only to sit down at the coffee shop and read books for free? I mean, they provide the location, amenities, and even a good crowd. Or what about a book review in a magazine read in said bookstores? What about music playing over the sound system playing at the music while they’re reading?

I’m not a intellectual property lawyer by any stretch, but as a writer myself, I know enough of the law to know this to be true in most cases.

This is going to turn out like the whole Metallica/Napster fiasco. And as we know, this didn’t stop anything.

Admittedly, this situation is different. Or is it? Labels attempt to intimidate their fans. In this case, clubs, bars and restaurants who hire cover bands will suffer the brunt of a decline in clientele when they are forced to hire original acts — unknown, or expensive (if popular), original acts.

The nightclub owner is not the ones who suffers. Again, it’s the fans. And it’s a tragedy.

Nevertheless, this is setting a dangerous precedent and bands will be facing a monumental task if they were to clamp down on every club with cover bands. And it’s not great marketing, either. You hear a song from a cover band at a club, you’ll be tempted to buy the original — or the album where licenses ARE paid to the original creators/labels.

Again, an egg-and-chicken dilemma.

On the other hand, there are bands like Lez Zeppelin, Hell’s Belles and Rain that ape famous bands like Led Zep, AC/DC and the Beatles – and make a lot of money in the process. Those are the groups ASCAP should be going after.

Because I write about a local music scene with many aspiring bands who have day jobs, and club owners who are sympathetic to them, I tend to side with the underdog. ASCAP isn’t a saintly organization, fearlessly representing defenseless artists. How many performers even own the publishing rights to their songs? The stories of ASCAP’s predatory practices are legion on my beat.

Radio’s ability to break new music has faded; fewer stations even play music anymore. Those fields are fallow, so ASCAP has ramped up nightclub enforcement. When I worked in radio, we lived in dread of receiving the ASCAP diary. Station management went so far as to try and ban their songs whenever possible during the recording period. But they always got their money, because the law was on their side.

Now it’s bars and restaurants on the receiving end of this treatment. If it causes nascent musicians to put down their axes before they even begin, that’s a bad thing.

Local Rhythms – More Reasons to Hate the Music Biz

 

pageopensnyse.jpgVail, Colorado – I know, that’s a strange dateline for a local music column. However, recent news from the Rocky Mountain State is hitting close to home.

In yet another example of a music business utterly bereft of new ideas, the members of Led Zeppelin and Van Halen are suing the owner of Vail’s 8150 nightclub for hiring bands that play cover versions of their material. They’re looking for more than $30,000 per song in damages.

Publishing organizations like ASCAP and BMI earn their money enforcing copyrights. That’s not necessarily a bad thing, but this is ridiculous. Worse than that, it’s counterproductive – at least where the musicians are concerned.

There’s a story of Paul McCartney seeing Jimi Hendrix play a teeth-rattling version of “Sgt. Pepper’s Lonely Hearts Club Band” in a London club, two days after that album was released.

I doubt Sir Paul was thinking about a performance fee that night.

Yet here are Jimmy Page and Robert Plant doing just that. These are the same guys who tried to rip off Howlin’ Wolf on their second album, by renaming his “Killing Floor” as “The Lemon Song” and trying to pass it off as an original. They were sued, and lost.

Van Halen is just a bad Xerox of Led Zeppelin, a band who spent the years before their big break playing – you guessed it – cover songs in L.A. nightclubs. I’m sure they were diligent about paying Roy Orbison every time they played “Oh Pretty Woman.”

Can’t they make nice long enough to complete a cash-grabbing tour like the Police? It makes absolutely no sense to risk losing their biggest fans (you know, the ones so dedicated they learn all of your songs, note for note).

But the reasons for this are sadly obvious. Neither band has made an even semi-interesting piece of new music in over 25 years. Like everyone else in the industry, they’re reduced to repackaging old work to milk past glory. It’s no longer music; it’s an annuity plan.

They should follow Eric Clapton’s cue; grateful for the success that “Cocaine” and “After Midnight” brought him, he made a record with J.J. Cale last year – a class act.

[A follow-up AlgoRhythms post to the 8150 lawsuit]

Who’s making music this weekend?

Thursday: The Wailin’ Jennys, St. Anselm College – A more rustic Dixie Chicks, this band has won several awards in their native Canada. Sweet three-part harmonies lift their bright, natural sound, which begs a question. Why does so much great Americana music come from north of the border? The Lovell Sisters, winners of a recent “Prairie Home Companion” talent search, open the show.

Friday: Have Blues Will Travel, Salt Hill 2 – Last week I talked about plans for Irish music on St. Patrick’s Day eve. Now comes word of music every Friday and Saturday in Newport’s newest restaurant. Tonight, it’s a well-regarded duo playing traditional, harp-sweetened blues. Tomorrow brings R&B, with Mike Benoit and Jimmy Ruffing. In the coming weeks the Eagle Block eatery welcomes stripped down pop (Rich Thomas & Wally Wysk 3/10) , bluegrass (Spare Change 3/24) and, obviously, Irish sounds. Great news!

Saturday: Chris Whitley Memorial Celebration, Boccelli’s – The hard-living Whitley left us in 2005, but his music continues to inspire. Jeff Lang, who recorded with Chris on “Dislocation Blues,” due for release this month on Rounder, headlines the show. Dan Whitley played an incendiary set at last year’s Roots on the River festival; once again he’s back for this, the second annual tribute to his late brother. Josh Maiocco hosts, Melissa Sheehan also performs.

Sunday: Fogey Mountain Boys, Canoe Club – Authentic bluegrass from a group of locals who love to play it. Since we’re on the subject of royalty fees, I wonder if Woody Guthrie lurked around campfires waiting for someone to play “This Land Is Your Land”? It’s doubtful, and these days all his stuff’s in the public domain. Since it’s Sunday, the Boys play for 3 hours. Sit close if you want to really enjoy the music.

Monday: Gaelic Storm, Iron Horse – This wonderful Irish quintet starts March in style with a long run through the region. They were in New London Tuesday, and play the Capitol in Concord tonight and Randolph’s Chandler Music Hall tomorrow. They have a neo-traditional sound that fits everywhere from the Dublin (Ohio) Irish Festival to the House of Blues (where they recorded a recent live DVD).

Tuesday: Open Mike with Josh Maiocco, PK’s Public House – Josh took the reins from Ezra Veitch last year for this Bellows Falls tradition, and he’s holding things down nicely. Anyone who wants to play can step up to the microphone and join in, but you should be aware that your friends and neighbors may be listening at home on WOOL-FM, which broadcasts everything live.