The SoundCloud Purge of 2015

I recently saw a Vice article about how SoundCloud was beginning a major purge of music on their website which was suspected of copyright infringement. In the article the author even alleges that the whole thing has to do with the fact that SoundCloud wants to monetize. While that may be true they want to monetize anyone with a basic knowledge of copyright law pertaining to music understands why they would need to do this purge either way, and it's quite simple - any music the website hosts which infringes on copyright could lead to a massive lawsuit for SoundCloud. In fact it's quite surprising it has taken this long for something to happen and it seems to be a quick response as the major labels threatened to sue SoundCloud in June of this year, just two months ago.

In the comments of the article on facebook I saw what amounted to a lot of people showing their absolute ignorance in music law, copyright law, and general intellectual property rights. Even more they seemed to ignore the fact that these laws exist to protect musicians and artists from having their works pirated. While I hate to be that guy who says "Well, it's the law", it is the law and it is there to protect musicians and their intellectual property. The most surprising thing was how some of the users tried to justify it by saying they were promoting the music they were using so it should be fine.

"How about the idea that DJ's are promoting that music. It's no different to it being played on the radio. Single tracks sure, but mixes of tracks? Mix tapes are the way most of us discovered music but in the digital era that's being policed with sledgehammer tactics. If I buy a track, why shouldn't I be able to post a mix containing it?"

I think one of the reasons people seem so arrogant about pirating music is it is seemingly a victimless crime and the few victims who are publicly seen are usually big-name rockstars who are extremely rich, so people brush it off without thinking about all the unknown musicians who rely on their royalty checks to live. Something I found interesting was how many people didn't understand that radio, venues, festivals, podcasts, and even restaurants had to pay licensing fees to play music or allow bands to cover songs at their establishment. One guy argued -

"That licensing model doesn't work for DJs, small radio stations, podcasts or events (all sizes of nightclub, festival, concert, etc.). It also doesn't accept that without these people and events much of this music would have little to no audience." 

It's kind of mind-boggling to know that a seemingly majority of DJs and Producers, who sample more than almost anyone else in the music industry, have such little knowledge of the law which pertains to their field of work. I can understand some naivety in the laws but to not understand the basic idea that you can't use someone else's intellectual property in a publicly presented work without getting proper licensing is crazy. I think in the end it really comes down to the fact that many people, including many musicians, DJs, and producers, don't truly see music as a business as well as an art form - they see them as completely separate. 

Songwriters Equity Act 2015

On March of this year multiple Senators and Representatives Reintroduced H.R. 1283 and S. 662, which is also known as the Songwriters Equity Act (S.E.A.). This legislation was originally introduced in 2014 but has found backing from members of both sides of the aisle. What the bills essentially do is require the Copyright Royalty Board Judges to establish rates and terms that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and seller, when setting royalty rates under the compulsory license available for the reproduction and distribution of musical works (a.k.a "mechanical license"). When they are establishing such rates the judges must base their decisions on the current marketplace and economics  as well as information presented by the participants.

What this means for songwriters is that the courts must establish digital performance rates based on fair market values, something songwriters have been trying to fight against since the digital age has affected the music industry. ASCAP even released a video (embedded below) and hashtag #StandWithSongwriters that emphasizes how one million streams earns a songwriter only $90.

Some people believe this bill doesn't go far enough and we really need to get rid of the Credit Royalty Board altogether to allow for a free marketplace. In 2012 a D.C. Circuit Court even found the 3-judge panel to be considered Unconstitutional, with the Senior Judge's opinion stating;

"Intercollegiate Broadcasting, Inc. appeals a final determination of the Copyright Royalty Judges (“CRJs” or “Judges”) setting the default royalty rates and terms applicable to internet-based “webcasting” of digitally recorded music. We find we need not address Intercollegiate’s argument that Congress’s grant of power to the CRJs is void because the provision for judicial review gives us legislative or administrative powers that may not be vested in an Article III court. But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause, U.S. Const., art. II, § 2, cl. 2. To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010), by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. With such removal power in the Librarian’s hands, we are confident that the Judges are “inferior” rather than “principal” officers, and that no constitutional problem remains. Because of the Appointments Clause violation at the time of decision, we vacate and remand the determination challenged here; accordingly we need not reach Intercollegiate’s arguments regarding the merits of the rates and terms set in that determination."

The future of the music industry, streaming services, and intellectual property rights as a whole is still hard to determine as newer technologies keep changing the intellectual property landscape. One thing is certain, change is bound to happen soon. 

8 Things Every Musician Should Know About Music Publishing

One of the most overlooked and complex aspects of the music industry today is music publishing. Many musicians have no clue what exactly music publishing entails or why it is so important. The biggest reason any musician should understand music publishing is because music publishing is how musicians make money for their intellectual property. Here is a list of 8 things every musician should know about music publishing.

1. Musical Composition vs. Sound Recording - When it comes to music publishing this is a concept so important the copyright office has a singled-out page about it. The musical composition is the specific ordering and structure of musical notes, sometimes accompanied by words. The sound recording is a phono-record copy of the composition being performed in some manner. Basically, the musical composition is the actual song and the sound recording is the recording of the song.

2. Publishing Share = 50% of the song - When a song is created it automatically has two rights associated with it; publishing rights and songwriter rights. Publishing rights represent a 50% share of the song and songwriter rights represent the other 50% of a song. If a songwriter publishes their own work they will own 100% of the song. If the songwriter signs a co-publishing agreement for a 50/50 split, the songwriter owns 75% of the song. This is because the most any publishing contract can cover is 100% of the publishing rights which only accounts for 50% ownership of the song.

3. Length of Copyrights - The length of the copyright for a song lasts until 70 years after the death of the songwriter(s). If there are multiple writers then the 70 years is determined to last after the death of the last surviving author. So if you write a song that becomes a hit and it has lasting effects, your great-grandchildren or even 2nd-great grandchildren could be receiving royalty checks from your work.

4. Performance Rights Organizations - Also known as PROs, these are organizations who collect royalty fees for artists and distributes them amongst the artists accordingly. In the USA there are three societies; ASCAP, BMI, and SESAC. Most artists join ASCAP or BMI because they offer open membership but if you want to affiliate with SESAC you'll have to submit an application for consideration. In order to join any of these you will need to have a composition released in an area which the PROs issue licenses; radio, television, film, interactive streaming, mechanical reproductions, or public performance (not a performance as in you playing it live, this refers to restaurants, shops, and businesses playing songs over their speakers). The societies are currently working to pass the Songwriters Equity Act (SEA) which would re-establish many current rules including the statutory rate for mechanical licenses and royalty payment for interactive streams (i.e. pandora, spotify, etc).

5. Mechanical Licenses - A mechanical license is the licensing of a copyrighted musical composition for use on CDs, records, tapes, and certain digital configurations. You can think of it as a mechanical reproduction of a copyrighted musical composition or the sale of one. A mechanical license does not give the right to sample from any phonorecord of the original recording, it just allows the reproduction of the composition. In the USA these licenses are mostly issued through the Harry Fox Agency but there are smaller agencies who also collect the royalties from mechanical licenses.

6. Synchronization Licenses - A synchronization license is the licensing of a copyrighted musical composition for synchronization to a visual media outlet. In layman terms it is a license to use a composition in a tv show, movie, video game, advertisement, promotional video, or any other visual media. Similar to the mechanical license a synchronization license does not give the right to use any part of the studio sound recording, this would require a Master Use License issued by owner of the recorded work (often a record label).

7. Publishing Contracts - Signing a publishing contract is kind of similar to a record contract in that you are given an advance (basically a loan) which is often recouped through the royalties earned. A music publisher's main role is to collect royalties for the songs in it's catalogue and distribute them accordingly. Many music publishers also actively sell the songs in their catalogue and maintain relationships with other personnel throughout the entertainment industry who buy music. MOST IMPORTANTLY, you do not need to sign a publishing contract to copyright your music, license your music, or collect royalties for your music. Signing a publishing contract is very risky and should be done only after consulting your lawyer (if you are offered a deal and don't have a lawyer, find one). It can be quite profitable to team up with a music publisher as they can help advance your career quite heavily but it isn't necessary.

8. Copyright Royalty Board - Also known as the CRB, this is the board which decides the royalty rates for copyright statutory licenses. The board consists of three judges who are appointed by the Librarian of Congress. The board currently consists of; Suzanne M. Barnett(Chief Copyright Royalty Judge),David R. Strickler, and Jesse Feder. Each judge must be an expert in either economics (Strickler), copyright (Feder), or adjudication and trial procedure (Barnett).

7 Things Bands Do To Make Promoters Frustrated

Having played the role of booking agent, promoter, and musician for a decade I've found that many bands will do things that promoters absolutely hate and have no clue why the promoter is angry. Promoters have to worry about a lot of factors for each show and having a band who doesn't respect or understand their role in everything makes the process that much harder. And this isn't just limited to local bands…this includes touring bands as well. A lot of this stuff will frustrate anyone who works with the band and can often lead to people in the music industry ignoring you and your band because they see no potential.

1. Bands Who Don't Understand This is a Business - Yes, this is a business. While every show promotor usually starts for the love of music they need to actually make a profit at their shows in order to continue doing their job. Every good promotor is not only investing a lot of time spreading the word of their shows but they are also investing a lot of money. The biggest thing bands do which show they don't understand this concept is expect the promotor and venue to do ALL the promoting. This leads me to my next point...

2. Bands Who Don't Promote Their Shows - Not promoting a show you've been booked on is a slap in the face to everyone involved in the show, especially the promotor who put you on the line-up. It isn't hard to promote. What makes me especially crazy is when I call a band out for not promoting and they insist they have been "telling all their friends." That's great but that's about the lamest way to promote and a sure fire way to never build a fan-base beyond your close friends. Post on your facebook, twitter, instragam, or whatever. When you get new fans who don't know you they will often connect to your social media pages or check your website. If you don't announce your shows then how will they ever know about them? And don't wait until the week of the show to announce it, give your fans time to schedule it in so you don't have one of those nights full of people telling you they were busy and couldn't make it out. No promotor or venue can reach your fans as easily as you can and there is no reason to not post about your shows online. But DON'T LIMIT YOURSELF TO JUST ONLINE PROMOTIONS!

3. Bands Who Don't Use Street Promotion - While online promotions and social media is wonderful it doesn't come even close to the power of street promotions. Unfortunately many bands think street promotions is simply printing flyers to put up at local coffee shops and music shops. While that is part of it you can also print off handbills of the show flyer and hand them out around town. My favorite thing is to bring an mp3 player so you can play your tracks for people you meet who are interested in coming out. Even if the people don't come out they now have heard of your band which is the first step in creating a local buzz. Once that buzz is going you've got to keep it up by promoting your band!

4. Bands Who Don't Promote Themselves - I will never understand why bands love to skip this step. I've seen some great bands who start to build a local fan-base from playing shows and then just plateau because they don't actually market themselves. If you want your band to be taken seriously and actually go places you need to understand the band is a business and all businesses need marketing to find customers. Hand out free CDs at shows, malls, college campuses, or anywhere that it is allowed. Make a press kit to send to radio stations, magazines, reviewers, writers, and other music related platforms to get some press. If you don't have recordings then go get some done in a studio so you have a professional sounding product. I once heard a saying that I think is a great segue into my next point, "Bands should be spending money on 3 things; equipment, recordings, and promotion."

5. Bands Who Don't Invest In Themselves -  When I say invest I mean literally putting money into the band fund. When I say this many musicians will instantly think of all the money they have spent buying equipment or recording. That's great but you are basically spending money on making a product that you aren't properly marketing. Every band should have a budget set aside to put towards marketing and have an actual business plan thought out (writing it out is even better). Each member should be putting money into this or you need to work out a deal between each other so you aren't at each others throats a month later. Start out small with social media marketing on Facebook, Twitter, etc. Music based websites like Reverbnation and Purevolume also offer different opportunities to help promote your band. Order merchandise to hand out for free, especially CDs so they don't have to look for you online to hear your music. See how much ad space costs in local radio, newspapers, magazines, and blogs. Don't limit yourself, think outside the box and look for opportunities which present themselves. If you aren't willing to invest in your band why would anyone else?

6. Bands Who Overbook Their Hometown - This is one of those things that frustrates everyone; the promotor, the venue, the bands, and even the fans. Most local bands, especially today, don't have very large draws and by overbooking your hometown you are thinning out your crowd which ends up hurting both shows. Some promotors and venues will kick a band off of a show if the band books another local show too close. I've had two separate bands I had booked on a show book another show in the same city on the same weekend, one of them was even playing a third show in the same city the next weekend as well. That is a surefire way for a venue or promotor to lose interest in working with them again. The rule of thumb for this is called 30 and 30, as in 30 days and 30 miles. This means you shouldn't book a show within 30 miles and 30 days (15 days before the date and 15 days after) of a date your band already has booked.

7. Bands Who Don't Understand The Music Industry - The music industry is a very complex beast with all kinds of twists and turns that each musician who wants to do this professionally should understand but many have little interest in doing this. The six previous points all tie into this but on top of all that a promotor will have little interest in working with a band who doesn't know what they're doing. If you want to really get serious look into forming your band as an LLC, talk to local managers and agents, research local entertainment lawyers, read up about licensing and publishing, and just learn as much as you can about the industry. I suggest reading "What They'll Never Tell You About The Music Business" by Peter M. Thall to get a really good overview of the whole industry.

Check out the follow-up article "7 Things Promotors Do To Make Bands Frustrated"