RAFLAW Journal

You can't give 'em away, sell 'em or throw 'em out!

2008-04-10T09:35:00.009-04:00

Record companies and the RIAA have been making some pretty strange arguments over the past couple years, and the courts have even bought some of them. Some courts have recently held that making a copy of a sound recording available - even if no one copies it - is a copyright infringement. But this latest one, really takes the cake, or perhaps as the labels would have you believe, receives the cake on a permanent loan.

Universal Music is involved in a lawsuit with Troy Augusto, a guy who makes his living by selling "promo CDs" on eBay. He buys them in used records stores or at other online sites. These are discs that may contain just a single song, maybe a remixed version of a song, or maybe the whole album. Record companies send these out to DJs and other radio station personnel, writers and critics, and pretty much anyone else they think might help them to sell their product.

According to Universal, they don't keep track of who they've sent them to, have never asked for the return of a single disc, don't expect anyone to return them and have never received a single return. But, like all the record companies, Universal stamps these discs "Promo Only - Not for Sale" or something like that.

Whether that notice is actually binding on anyone is the major question before the court. I tend to agree with those who say that the discs are a gift and the recipient, as the owner, can do anything but copy them. (Read the EFF memorandum here.) But I follow the other side's argument, to a point. But here's where Universal really steps off:

In their memorandum in support of their motion for summary judgment, which I quote, Universal discusses the disposal of promo CDs. (By the way, unauthorized distribution=copyright infringement in lawyer speak.)

Augusto testified that 'a common way to dispose of them' is to give unsold promotional CDs away, or he may throw them away...Both are unauthorized distributions.

In other words, Universal Music has asked the court to believe that throwing out a promo CD is copyright infringement.

Wow! Forget college downloaders! It's time for the RIAA to round up everyone who ever worked in radio. Round up everyone at Rolling Stone, the Village Voice, the New York Times... Round up every hipster and tastemaker on the planet. These people have deep pockets!

Back when I was the program director at my college radio station, we used to routinely throw out stuff like Air Supply and Little River Band. They were vinyl back then, but they were stamped "Promo Only." We joked about a violation of federal law, but we never thought it was the Copyright Act. We just thought it was the unauthorized disposal of hazardous waste.

Silly Seinfeld Slander Suit

2008-01-08T10:24:00.000-05:00

Maybe it's kind of dicey when your wife is the defendant and you're a comedian, but I saw nothing wrong with Jerry Seinfeld's appearance on The Late Show with David Letterman back in October 2007. At that time Seinfeld denied that his wife Jessica had plagiarized from Missy Chase Lapine's The Sneaky Chef when she published her own cookbook of kid friendly healthy recipes, Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food.

He also made a few comedic comments, as a comedian is prone to do. Maybe Jessica copied, maybe she didn't. As my brethren at the bar would say, I have insufficient information to confirm or deny that allegation. But I do know this: there's some seriously humorless people out there and a whole lot of them are plaintiffs, lawyers, and plaintiffs' lawyers.

Take plaintiff Missy Chase Lapine for one. In addition to her plagiarism suit against Ms. Seinfeld, she is now suing Mr. Seinfeld for slander, based on his comments on that October evening. Jerry started by complaining about "nutjobs" who bother celebrities, did a lengthy riff on vegetable plagiarism and how his wife must have burglarized Lapine's publisher, and finished up with a punch-line about how Missy Chase Lapine might be a wacko or nutjob, and that he's worried, because many people with three names go on to become assassins. Perhaps not Jerry's A material, but I got a chuckle.

[Fast forward up to 5:50]

Missy claims she's not a public figure, and that Seinfeld's comments were a "malicious, premeditated, and knowingly false and defamatory attack."

Not a public figure? I wonder... If you are a published author, and you file a public lawsuit against a public figure's spouse, and you publicize your lawsuit... aren't you a duck? Don't comedians comment on people in the news - famous or not - all the time? Do the rules change if your spouse is a party to the lawsuit upon which you comment? Aren't you entitled to express opinion?

According to the Washington Post, Lapine's complaint alleges that "a reasonable person watching Seinfeld on Letterman's show would conclude that he had described Lapine as mentally ill with "potentially violent or, at a minimum, hostile, tendencies, proclivities and activities."

Yes, any sentient being would conclude that he had described her as such. I think the proper question is, "Would any reasonable person conclude that Seinfeld was stating any of the above as fact?" It sure sounded like jokes to me, and apparently to the studio audience as well. Yeah, it all depends upon whose ox is being gored, but sometimes it's just bull...

I hope the court dismisses this part of the complaint with just a four word opinion:

No suit for you!

Rock On, Honorable Ones!

2007-12-19T16:18:00.000-05:00

Just this afternoon, Judge Nancy Edwards denied the Romantics motion for an injunction. She promises to publish an opinion forthwith. Guitar Hero will continue to fly off the shelves well past Christmas. I would expect the Romantics suit to whither and die in a matter of weeks, because it appears to be a particularly odious piece of work.

What makes the Romantics lawsuit against the makers of Guitar Hero, the wildly popular video game, so egregious is that a reading of the complaint and the facts they allege leaves one with the distinct feeling that none of the people they are suing did anything wrong. In a nutshell, the one-hit wonder Romantics are upset because a video game company -- which is paying a handsome royalty for the use of their one hit -- hired musicians to make a new recording of the song, which the Romantics think sounds too good.

A little background on the arcane issues of music licensing: when you hear a song in a movie, on TV, or in a video game, or just about anywhere besides on the radio, there's probably a whole lot of different people getting paid. The people who wrote it get paid. The people who publish the song (who may or may not be the people who wrote it) get paid. The people who played the instruments and sang get paid. The people who own the recording (usually a record company) get paid. When a song is played on the radio, only the people who wrote and publish the song get paid. Which is why, for instance, when you hear I Don't Want to Miss a Thing on the radio, it's Diane Warren, and not Steven Tyler who says "cha-CHING!" It's also why, for the most part, the guys in the band who don't write ride the bus, while the guys who do write own the bus. Anyways...

Guitar Hero Encore: Rocks the 80's, like all the previous versions, allows the player to simulate playing guitar parts to a variety of popular songs that have been properly licensed and re-recorded by studio musicians. The Romantics seemed to be quite surprised to find out that What I Like About You was included in the game. I'm quite surprised they didn't actually already know, since someone in their camp issued a license or it never would have happened. And, it was probably a synchronization license, which means that it was negotiated with the publisher; this means someone could have said "No!" if they wanted to.

Whoever is in charge at the Romantics World Headquarters would also have to know that they were never asked for a master use license -- permission to use the Romantics version of the song --so they knew that their recording was not going to be used. (What I really want to know is who handles this stuff for the band, and why someone from in the band didn't know all this stuff way ahead of time, or why someone in the band hadn't already seen and approved the game? At least that's the way I do it with groups I represent.) Maybe the boys sold out all their rights to a publishing company long ago; if so, tan pis.

In their law suit, the Romantics claim that they "were informed by fans that the [g]ame contained the [s]ong as performed by..." the Romantics. If were really the group's recording -- used without proper permission -- that would be a problem. But it's not the Romantics, and the Romantics know it! In the same paragraph of their complaint, the Romantics say they "learned that the [s]ong was not the [original recording]..." and that the game maker had been promoting the game with language that said "as made famous by the Romantics."

Doesn't everybody know that as made famous by means it's not the original recording? The Romantics knew. Read this from the complaint: "In the music industry, the phrase 'as made famous by' typically means the song is not the [original recording] but rather an imitation." Um, duh? So isn't the game exactly what it says it is? And properly licensed as well? (Another aside. You know those "Now That's What I Call Music" CDs? All the hits by the original artists? Well, back in the sixties some real smart rip-off artist used to put out albums of hits and advertise that they were the hit songs "Recorded by The Original Artists." Problem was The Original Artists was the name these guys came up with for a bunch of lame studio musicians who were doing crummy re-recordings! You can't do that anymore.)

The Romantics rely on a couple of lawsuits where recording artists were imitated and won big money. But, the facts of this case appear to be completely different from Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992). Neither Ford nor Fritos ever said that it wasn't the actual artist. Ford wanted you to believe that Bette Midler was crooning about cars. Lays wanted you to believe that Tom Waits was growling about Fritos.

Ford and Fritos used imitators, and they never did anything to alert anyone to the fact that these famous people were not endorsing their product. Ford actually tried to hire Midler, and imitated her only after she refused and told them that she did not do any commercials. Tom Waits had a "publicly avowed policy against doing commercial endorsements," and his disapproval of artists who did was well known. In fact, the person responsible for recording the faux Waits had previously asked Waits to record a Coca-Cola commercial and stated that "you never heard anybody say 'no' so fast in your life." But, Hey! Romantics! No one asked you! And it's not a commercial endorsement...

So what's the Romantics beef? When you read the complaint, you get the distinct impression that everything would have been OK if the game maker had used a crappy version of the song! They state that "None of the Defendants have permission of Plaintiffs to perform a sound-alike imitation of the Song." Guys, no one needs to get permission unless they are trying to make people believe it's the original, and that's not the deal here; remember the 'as made famous by' bit? They also claim that "A number of fans have reported to them that they believed the [s]ong on the[g]ame was the [original recording] or otherwise performed by Plaintiffs." Uh-huh.

So the game maker should pay because you and your fans are morons? I gotta tell you, there's a lot more people who know that none of the Guitar Hero games have the original recordings, and everybody knows that if they did, the company would be bragging about it, as they are with their newest version of the game.

What's the story behind the story? It's Christmas time. What better time for some washed up one hit wonders to try to hold up the sales of a phenomenally popular game in order to extract a little extra, if not deserved, cash?

It seems Christmas can bring out the worst in some bands. It was Christmas time some 18 years ago when some over-built and under-brained bodybuilders in an unsigned band named Pump tried to stop all sales of Aerosmith's new CD Pump, because it was "confusing their fans." Oddly enough, when we appeared in court to fight the motion for injunction, the muscle heads told us that for a nice cash payout, all confusion would end. We told them to go pound sand and Judge William Young pretty much told them the same thing in a more genteel but no less forceful way.

I expect to see a massive pounding of sand in the Detroit area in the weeks and months to come.

Contracts like these usually promise eternal youth

2007-04-25T09:32:00.001-04:00

Attention, All Bands! Geffen Records has a deal for you!

I came upon this link while surfing for music news this morning:

If you click on over, you'll find a brief come-on, and a button down to the right labeled "Click Here." When you click there, you are presented with a contract.

Let's look at what you get: someone at Geffen Records will listen to your music. Period. That's what you get. It says "top A&R execs at Geffen Records" will review your music. They'll do this by visiting your Web site.

Let's look at what they get: your music, to do whatever they would like to do with it for free for all eternity (including but not limited to this world and the hereafter.) It would appear that they get to do this, even if they don't use your music in the movie.

Let's look at what else they promise: They might use your music in a movie. They might sign you to a deal. If your music is in the movie, they might use your name or picture. It doesn't say they have to.

Let's look at what else you promise: You will not offer any of the music that they might look at to anyone else for anything else for 90 days. If they decide to use any of your music for free for all eternity, you promise that for four (4) more months, you won't even negotiate, let alone sign, a record deal with anyone.

Let's look at the deal you might get: "For purposes hereof, Artist's services as a recording artist shall include Artist's services in connection therewith as a performing and video artist and producer." That means they take a share of your touring income too. In addition, if anyone in the band turns out to be a producer, it looks like Geffen takes a piece of that too.

One more thing, if they find that this deal isn't quite to their satisfaction, you promise to sign anything else they put in front of you. No requirement that it be reasonable.

The part I like best is the preamble, where they tell you to have it looked over by "an attorney, manager, or the smartest friend you can think of." Interesting. Deals like this should really be looked over by a priest, rabbi, imam or some other spiritual advisor.

Without a hint of irony, the folks at Geffen have even included the HTML code necessary for you to easily offer this deal to your friends and beloveds.

My advice: if you are really so desperate and hopeless that you would consider this deal, just drink the poison now.

If you decide to click over and look at the contract, make sure there's nothing sharp near your mouse or keyboard. It would be a really bad time to accidentally yield a drop of blood.

An Open Letter To Fred Amoroso, CEO & President of Macrovision Corporation:

2007-02-16T16:21:00.000-05:00

Are you insane?

Sincerely yours,
The consumers
---

Background:

The president of Macrovision, Fred Amoroso, has posted an open letter, entitled “To Steve Jobs and the Digital Entertainment Industry” on his company’s web site. In it, Mr. Amoroso, whose company was, and is still, responsible for the failure of many legitimately purchased video cassettes to play in video cassette players, takes the position that more, not less, DRM is what the consumer needs.

As my old boss used to ask, “Is he on crack?”

Amoroso tries to make 4 points:

1. DRM should be on everything, not just music. “…It is critical that as all forms of content move from physical to electronic there is an opportunity for DRM to be an important enabler across all content, including movies, games and software, as well as music.”

Indeed. It will be great when there’s a lock and key between us and everything we own. Fred envisions a day when we can no longer lend a book, video or game that we have purchased to anyone else, unless we pay again. Why stop at content? Maybe Ford and GM would like to “enable” their cars. Future automobiles will be matched to their purchaser by retinal scan. If you want someone else to be able to drive your car, that will cost more money. GE could benefit too. What if each “user” in a kitchen needed a digital key to operate the toaster, microwave or to open the fridge? Ka-ching!

2. DRM increases consumer value. Yeah, he said that with a straight face.
“…Without a reasonable, consistent and transparent DRM we will only delay consumers in receiving premium content in the home, in the way they want it. For example, DRM is uniquely suitable for metering usage rights, so that consumers who don't want to own content, such as a movie, can "rent" it. Similarly, consumers who want to consume content on only a single device can pay less than those who want to use it across all of their entertainment areas – vacation homes, cars, different devices and remotely.”

Yes, sir. That sounds great. It’s sure working out for mobile phones. Let’s see, in order to have the Pussycat Dolls “Button” as a playable song on her cell phone, my daughter was asked to fork over $2.99. Of course, when she wanted hear it on her computer it cost another 99¢. Then she decided she’d like it as a ring tone – on the same phone where it already legally resided as a full song. This time, for a 30 second clip of a song she’d already paid $4.00 for, she was asked to cough up another $2.99.

Back in the day of physical product, that actually cost money to manufacture, we could play our albums and CDs, wherever we wanted. We could lend them to friends. Now that the cost of manufacturing and distribution is down to comparatively nothing, Fred is so bold as to articulate one of the dirty little secrets of DRM: Fred says it’s good that you now need to buy one for your home, one for your car and one for your ski house! Good for who?

3. DRM will increase electronic distribution. “Quite simply, if the owners of high-value video entertainment are asked to enter, or stay in a digital world that is free of DRM, without protection for their content, then there will be no reason for them to enter, or to stay if they've already entered. The risk will be too great.”

This is an out and out material fallacy. Our friend is begging the question. There is a pre-supposed premise that the video entertainment is of “high value.” If Amoroso wants to ignore declining motion picture theater attendance, price resistance at pay-per-view, and a DVD market where new releases barely garner $19.99 and are soon thereafter sold at $9.99 or less, where people can watch all the movies they want for less than $18 per month, perhaps he can convince himself of the high value of this entertainment. On the other hand, many argue that if this material were priced appropriately, there would be little incentive to copy, share or steal.

4. DRM needs to interoperable. “Truly interoperable DRM will … make it easier for consumers to manage and share content in the home.”

Yes, interoperable DRM would be easier than a million incompatible schemes, but again, Amoroso is way out in fallacy- land again. No DRM is what makes it easier to share and manage content in my home. How about you?

Amoroso finishes up by asking Apple to give Fairplay, the Apple DRM, to Macrovision. (He’s got to be smoking something!)and then quietly sounding the alarm: “Already, consumer equipment manufacturers are introducing advancements in wireless connectivity and the interoperability of devices that are opening the door to new ways for consumers to acquire and view content from many sources.” In other words, “Oh my God, there’s more and more ways that people might enjoy entertainment. Please, can’t we lock it all up now?”

From Me To You: The Beatles Hand Over "Apple"

2007-02-06T10:48:00.000-05:00

Apple Corps. ("The Beatles") and Apple, Inc. (the company formerly known as Apple Computer, Inc.) have settled a trademark dispute that has been running almost as long as the tomayto/tomahto dispute.

Dating back to 1978, (Apple was founded in 1976) the Beatles and Apple have feuded over the rights to the trademark "Apple." The resolution of that lawsuit was compensation in the millions of dollars from Apple to the Beatles, and a promise by Apple to "stay out of the music business."

In 1986, Apple computers became "musical" with the addition of startup chimes and other sound capabilities, and in 1989, Apple again sued, claiming a violation of the 1981 settlement. This time the companies carved out various aspects of the music worlds where each would operate without incursion by the other. The Beatles would retain sole and exclusive rights to "Apple" for the distribution of music, Apple would be able to reproduce music, but could not sell or market it in physical form.

In 1994, when I organized the Aerosmith Cybertour, this was the reason that the Powerbook logo, and not the Apple logo, appeared on the tour shirt marketed as part of the promotion.

In 2003, Apple launched the iTunes Music Store, and the Beatles sued again. But, a judge found, in late 2006, that "physical media" was the limitation, and not music in general, and Apple was found not to have breached that agreement with the Beatles. And that's a whole lotta legal bills for what amounted to nothing.

Which brings us to today, and an announcement, which in itself is not unexpected: the Beatles and Apple have come to yet another new agreement over the use of the "Apple" mark. But this agreement has a very curious element in its construction. According to news reports, Apple (the computer Apple) now owns all rights to the trademark "Apple," and will license back certain aspects of the trademark to the Beatles. In other words, the Beatles gave the Apple trademark to Apple after almost 30 years of defending it as their own. What gives?

Since the terms of the settlement are confidential, we can only speculate. I've seen no other speculation so far, but here's mine:

One of the obligations, or burdens as the Beatles may have come to see it, of trademark ownership is to "police" the mark against all infringers. One clear rule of trademark law is that an owner's failure to defend a mark against third party use can lead to the owner of the trademark losing its exclusive rights to the mark, overall. And, even in allowing a third party to use a mark, as in a license, the owner has a responsibility to monitor the use of the mark to make sure that the licensee meets the terms of the license. In other words, Apple may have grown tired of having to police its mark against a very determined and aggressive third party. Had the Beatles failed to maintain their seemingly endless defense of "Apple" against Apple, they may have lost all rights to it, against everyone!

Could it be that the legal fees associated with policing this mark, and the associated expenses of litigation, have soured "Apple" for the Beatles? By handing the trademark to Apple and getting back only the rights that it needs to be a vestigial record company, the Beatles have shifted the burden and expense of policing the mark to the very people who have caused such expense and consternation all along. Now, even if some upstart were to begin using "Apple" as the name of their record company, or a counterfeiter were to distribute Beatles CDs, the computer and iTunes people, and not the Fab Four and their descendants, would have to foot the bill for the ensuing legal proceedings.

So, in a world where Steve Jobs appears to always get what Steve Jobs wants, "We Can Work It Out," has finally replaced "I, Me Mine," as #1 on the Cupertino/Liverpool hit parade.

A Greener Shade of Pale

2006-12-21T08:51:00.000-05:00

Matthew Fisher, the former organist in the group Procol Harum, has won a judgment against two of his former bandmates, awarding him a 40% interest in the composition A Whiter Shade of Pale. Originally penned in 1967, the tune had been credited to Gary Brooker and Keith Reid. It has a perennial presence on classic rock radio, and has been listed by Rolling Stone magazine as the 57th greatest song of all time.

The court found that Fisher's organ solo "is a distinctive and significant contribution to the overall composition and quite obviously the product of skill and labor on the part of the person who created it."

Fisher successfully argued that his distinctive keyboard part was an essential part of the composition, raising his participation to the level of composer, rather than an arranger or performer.

Brooker and Reid claim that this decision makes it "open season" on composers and that now anyone who played on a recording could make a claim for joint authorship.

Commentary: Ironically, Fisher's haunting keyboard part was not wholly original to start, lifting several bars from Sleepers, Awake, one of the movements in Bach's Suite No. 3 in D Major. Nonetheless, in creating a derivative work in a public domain composition, and bringing it to Pale, Fisher did create an otherwise copywritable piece.

That notwithstanding, this case should have little impact on composers and musicians who follow some fairly simple practices. Individuals who are composing music together should always have a co-administration agreement in place, in advance of any writing sessions. Musicians recording together should always have either work-for-hire agreements or an intra-band agreement in place before rehearsing or recording music. Finally, at the conclusion of rehearsals, and prior to recording, all musicians involved in other than a work-for-hire relationship should have a full and frank discussion about ownership and division of rights in each composition. It is almost always easier to give or get a 10 or 15% interest in a speculative dollar than in a real one.

With up front discussions of prospective rights resulting in an agreement prior to recording, no composer should have any concern about future claims of ownership. While Fisher is turning cartwheels cross the floor, Brooker and Reid think this decision goes beyond the pale. In reality it doesn't; this case does nothing more than highlight the hazards of inadequate preparation and alert all musicians and composers that they should talk to each other and a lawyer, before, not after, the fact.

You make me want to lala...

2006-05-16T13:36:00.000-04:00

There's a new player in the Consumer vs. Big Music game and its name is lala. Take a look at this and read all about it.

Basically, lala purports to be an online facilitator of CD trading. In other words, you tell lala what you have and what you want, and then for $1.49 lala will take one of what you have and send you one of what you want. Sounds good, doesn't it?

Unlike file sharing, where you violate copyright law by making a copy of the song, with lala, you give up ownership of the whole polycarbonate mass of atoms we call a CD. Unlike the compositions embodied thereon (which you don't own and can not copy) and unlike the sound recordings of those compositions (which you don't own), you do own the CD. And you can do many things with it, legally, and without paying anyone a red cent more.

You can listen to it whenever and wherever you want. You can turn it into a coaster or a Frisbee. You might even be able to make a backup copy under the Fair Use Doctrine (but not according to the RIAA.)

You can give it away or sell it. You could even sell it for more than you paid for it. Of course that was more likely in those halcyon vinyl days when things really did go out of print. You could trade it for a handful of magic beans, or for a cow, or even for a different CD. The only catch is that if you give up ownership of the CD, you give up the license to listen to the recordings of the compositions on the CD.

So, here's where lala fits in. You are simply trading CDs you don't want with other owners of CDs they don't want. Or are you?

I'd like to help lala write their FAQ:

Q: Like, hey, I was just thinking with my brain for a minute... couldn't I just rip my CD before I trade it off?
A: No, that would be illegal.

Q: But, hey, who would know?
A: You and your god.

Q: Well, like, hey, I'm good with that.
A: Well, sure, we thought that you would be.

And that is exactly what lala is hoping, no matter what they say.

Just like the Don't Steal Music pasted on every iPod box, lala pretends it's all about being fair and above board. But, the iPod still plays ripped music on the assumption (nudge nudge, wink wink) that you are only ripping tracks from CDs that you own. Apple could have made it so that iPods only played DRM protected music, but then no one would have bought them, because that is not what the people wanted. (Remember that phrase - or variation of it: Give the people what they want, because we'll be coming back to it.)

lala's founder has a similar entreaty at the website: I ask you to do your part by doing the right thing: remove songs from your iPod or PC if you've agreed to send the CD to another member.

Yes, certainly, right after I erase all the cassettes I made of my friends' albums, and watch all the ads I skipped on this season's Lost before I erase them all from my TiVo.

So let's just call a spade a spade. lala is all about having people do what people do inside their houses, and about having people do what people do outside of their houses: whatever they want without causing physical injury to another inside, and following the law outside.

And let's hear it for the founders of lala for hoisting the RIAA and Big Music on its own petard. These guys are not paragons of virtue; they're not fighting the good fight against the monolith. They're American capitalists trying to make a buck. They're funded by Bain Capital fercriseakes!

For what seems like eons, the labels have been hammering away about abuse of fair use. Civil liberty, constitutional and other non profit groups have been battling Big Music on this front for years. If any praise goes to lala it is because they have joined the fight, whatever their motive, and opened up a whole new front. Just as Lincoln did not free the slaves because slavery was wrong (he did it to foment rebellion in secessionist states) lala and Bain have not joined this fight because it's right. They've joined the fight to make a buck.

The fight continues but on two fronts now. Press on with fair use, but let's hit them with First Sale. Let's beat them with their own statute. How are they going to fight this one?

Must they fight it? What about giving the people what they want? People want the jukebox in the sky. People do not want to own or house CDs. People want to be able to hear what they want, when they want, where they want. Survey after survey says they'll pay a fair price for that. And, study after study indicates that a subscription based system of music distribution without physical product would result in more profits for the Music Industry than it has ever seen. Give the people what they want!

The whole premise of lala, despite what they preach, is that no one wants the damned CD! Get it, rip it and get rid of it for something else you can rip. I'll bet that if you had the option to just get the best files for a couple bucks, instead of getting the actual disc, there'd be a whole lot of happy takers. Oh, yeah, that'd be called iTunes. Give the people what they want.

On the upside for musicians - and it is the musicians who are oddly ignored in this constant tussle - lala promises 20% of its revenues to the recording artists. (How it will allocate these funds remains to be seen.)

It would appear that canning lala and its progeny may require a special law, otherwise, you'd be paying Ford every time you trade in your Pinto. Would Congress pass a law that says once you buy a CD you must own it forever and not give it away or sell it? What are we going to do? Register them like guns? (I'd advocate a 20-day waiting period before anyone could purchase the Pussycat Dolls!) Could you make it illegal to organize a market for goods? Seems to run afoul of what a lot of Americans do every day to put food on the table.

But even with a law, how is it to be enforced? Whereas when you trade in your Pinto you obviously can no longer drive it, just how do you make sure that people don't trade discs that they still have copies of? Can you see Orin Hatch's storm troopers snatching iPods out of the hands of kids at the arcade?

Aha! Booty Drop! Booty Drop! Let me see your booty drop... papers!

Elliot Spitzer for President!

2006-05-12T11:51:00.000-04:00

Now that NY Attorney General Elliott Spitzer has definitively put an end to payola in the music business, it is hoped that he can put his keen eye for malfeasance and sharp sword of justice to more universal (sic) causes.

Once he discovers that, contrary to the world's expectations, Tehran is engaging in a concerted effort to develop nuclear weapons, he can convince Iraq to enter into a consent decree to once and for all halt its proliferation plans.

Or, if he discovers that big oil companies, contrary to consumer's expectations, are reaping record setting profits by manipulating supplies and fixing prices, he can get them to agree to stop and never do it again.

Or, maybe on a smaller scale, if he finds out there's gambling at Rick's (and don't I know we'd all be shocked to learn that) he could put an end to that too.

I know I sleep better at night with Mr. Spitzer not only watching out for me, but really doing something about it!

Petty Puts Kibosh on Fan Club Scalping

2006-05-12T08:13:00.000-04:00

Congratulations to Tom Petty for standing up to scalpers - and policing his fan club:

Rolling Stone: TOM PETTY management and Ticketmaster have canceled more than 400 pre-sale tickets for the classic rocker's June 26th and 27th St. Paul, Minnesota shows (with PEARL JAM) after fans complained of finding jacked-up prices on scalper and other secondary market sites. An estimated 800 tickets for Petty's June 20th concert at New York's Madison Square Garden have also been canceled...

In 1981, after finally emerging as a superstar after 2 under-noticed albums and the breakthrough Damn The Torpedoes, Petty held up the release of his follow-up, Hard Promises, refusing to allow his label to jack up the list price to $8.98, as they were attempting to impose a sliding scale, charging more for albums from so-called superstars than they did for others. [Note to Labels: it didn't work then, it won't work now. Steve Jobs is right. Knock it off.]

Now, after finding that scalpers had joined his fan club in order to purchase great seats at list price, and then auction them off to real fans, Petty's team has taken the unprecedented step of canceling the tickets! The new procedure for fan club ticketing is said to involve will-call pickup on the day of the show, with proper ID. Props to Petty and his management for doing something more than talking, and less than auctioning off the best seats ala Madonna.

Note the $8.98 airbrushed in just off Petty's elbow

This problem of simultaneously being able to get good tickets into the hands of hard core fans and keeping them out of scalpers' mitts is a thorny matter that we wrestled with back in the mid-nineties when running the Aerosmith fan club, Aeroforce One. Back then, we, along with U2 and believe it or not Barry Manilow, were pioneering the preferred seats for fan club members concept.

After much thought and many scenario run throughs, we settled on a policy that allowed any fan club member to purchase in advance of general sales, at face value, 4 tickets to every show on the tour. But, they had to pick up the tickets at the box office the evening of the show, with proper fan club ID and a photo ID. The promoters hated the extra work, and probably the lost revenue from scalping their own primo seats, but the fans loved it. And, from all accounts and careful observation, it worked. I'm sure we didn't beat all the scalpers, but... we did beat most.

By working with local security to monitor scalping on or near venue premises, and by using recruited fan club members to check with people in the seats we knew we had reserved, we knew that we had more than adequately succeeded. The satisfaction in our fan club resulted in increased sales of travel packages and ancillary merchandise, and positive word of mouth that no money can buy.

Other touring acts are strongly encouraged to follow Petty's lead here, and not Madonna's.

Is it so hard to remember that the object is to put dedicated fans in the best seats at no more than face value pricing?

If you can't get your head around that, you'll never understand our club's free ticket upgrade policy. I'll save that for another day.

Another nail in the coffin...

2006-05-01T08:48:00.001-04:00

A quick read of the complaint in the Allman Bros/Cheap Trick lawsuit against Sony BMG leaves this correspondent ready to issue a summary judgment. The only problem with that is we would be denied the delicious opportunity to hear what Sony has to say for itself.

In paying only roughly four of every ninety-nine cents, Sony uses the following arithmetic. First, they pay on only 85% of sales. This is to allow for free and reduced price goods, breakage and returns. (I know a lot of my MP3's come broken, and many consumers must take advantage of that liberal iTunes Music Store return policy!)

Next, they deduct twenty five percent from the gross, for manufacturing and packaging expenses. (I know I really dig the fancy package that my MP3's come wrapped up in. And, they're so much easier to open than those darned CDs. That engineering must have cost Sony a fortune!)

Finally, in the most cynical of all moves, Sony deducts another 25 to 50% of the gross since the download is a audiophile recording! A downloaded MP3 or AAC is an audiophile recording the same way a T-Shirt with Munch's The Scream on it is a fine art print.

Dickey Betts exits a Sony accounting meeting

We can only hope that every recording artist signed to Sony joins this lawsuit. This can help bring to light the remaining ludicracies of major label agreements. When consumers learn that even when they buy music the artist still doesn't get paid, the RIAA will have to grasp at more straws to justify its heavy handed attempt to resusitate the Major Label dinosaur by strangling consumers.

Hey, it's May Day! Workers of the world and recording artists unite! Cast off your chains... Oy vey.

Red Herring on Satellite & Internet Radio

2006-04-25T11:51:00.001-04:00

This Red Herring article is interesting in that Mr. Bronfman actually has a point (other than the one at the top of his head.) Radio has paid for all of its content other than music - Howard Stern being the poster boy.

If the model of Jukebox in the Sky is to work, just how does radio expect music to be compensated? My take on the Jukebox theory is that consumers will pay a reasonable monthly fee to the distributor, who will in turn pay the content providers.

This does not mean that the labels should automatically be the gatekeepers for the artists, but somehow, funds need to stream back to composers, performers, and master owners - the ones who have invested time, effort, money and heart.

Radio's virtually free ride is virtually over. Now that radio delivers digital quality tracks (and PVRs, or is that PMRs?) it is hard to argue that a performance fee covers it all.

We are just down the road from on-demand streaming, and when that day comes, physical ownership of recorded music becomes irrelevant at best, onerous, tiresome, and a waste of space being more often the case. On that day, without fair fees being paid for use, just how are musicians supposed to eat?

I remain a vocal advocate of the play live/get paid model, and I still maintain that will be the artists' primary revenue stream. Nonetheless, to the extent that money is already changing hands, let's make sure that the right palms get crossed.

Yeah, yeah - radio should be free. But it's not. So why should radio keep all the money?