2.19.15 IN WHICH THE COPYRIGHT OFFICE FIXES EVERYTHING

This article originally appeared in the 2.19.15 issue of Metroland

            In my last column we talked about the Flo & Eddie lawsuit seeking performance right payments for pre-1972 recordings.  The lawsuit is going very well for them, and as I explained, it highlights what a putrid and stupid mess copyright law has become, especially regarding music.  If you wanna go back and review the article now, we’ll wait.

            Tap tap tap... OK, on the same day my article ran, the Copyright Office (the federal agency that oversees all things copyright) issued a 250-page report entitled Copyright and the Music Marketplace, calling for a massive restructuring of how music is licensed and how musicians and songwriters get paid.  Sort of.   I think.

            When the report came out on February 5, everybody in the music biz trumpeted its existence.  A few hardy souls even made cursory comments about whether it was good or bad, based apparently on what is contained in the 13-page executive summary of the report.  Since then it’s been radio silence all around.  None of my go-to sources have said a peep, and I could find only a small handful of obscure blogs have attempted to sort it all out and explain the report comprehensively.

            I think a lot of this has to do with the complexity and mundaneness of the issues.  I’m not sure it’s possible to sit down and read the entire report without losing one’s mind and entering a state where violence and substance abuse seem like the only answer.  Heck, that’s how I felt after just reading the executive summary.  But let me try to, in the space allowed, impart at least a little of what I think is going on here.

            First the report recognizes that the current system is broken.  There are rules that date back to the days of player pianos, there are internet-specific rules that were made before anyone really realized what the internet was and what it could do, there are distinctions made that are artificial and nonsensical, and there is a tendency for secrecy among big players that benefit the big players at the expense of everyone else.

            The report explicitly recognizes this, and notes that consumers are rapidly switching from owning music (CDs and downloads) to accessing music through streaming services (like Spotify and Pandora) and how the current and outdated structure of payments doesn’t compensate musicians and songwriters at nearly the same rate as before. The report appears to suggest a consolidation of rate-setting under a single tribunal at the Copyright Office, and an effort to treat various types of music delivery (radio v. streaming v. physical delivery) as functional equivalents (which they are) and give them equivalent pricing structures.

            That sounds good to me.  We’ve now got a situation where the license fees from radio / TV/ nightclubs, etc. to ASCAP and BMI are set by a couple of federal judges, the price of using a song on a recording is set by Congress (if you’re using the entire song) or by private negotiation (if you’re using part of the song), and where Pandora pays marketly different royalties than Spotify, simply because Pandora won’t play the specific song you feed it (it only will play similar songs) while Spotify does.  It’s really just plain dumb.  And expensive.  And unpredictable.  It makes sense to have all this set by one dedicated body that has the expertise to do it.

            There were a number of other specific proposals that were good.  Like extending federal copyright protections to pre-1972 sound recordings.  This would take care of the multitude of issues we discussed last week arising from the Flo & Eddie litigation.  Like imposing on broadcast radio a performance license for sound recordings, which would put broadcast radio on par with the various forms of digital transmissions, would provide performers with a much needed income source, and would free up for US musicians foreign airplay performance royalties that are currently being withheld by foreign performing rights groups because the US (almost uniquely in the civilized world) refuses to pay them.  Like transparency in licensing and music use.  The most valid complaint about Spotify is that it doesn’t disclose how it determines its pay-outs.  Does anyone know how ASCAP whacks up its money?  Shouldn’t musicians know who is listening to their music, so better to whip up marketing strategies?  The report suggests that market participants disclose huge amounts of information about the deals they make, where the music goes, and the calculations used to determine where the money goes.

            Not that the report’s not all good, of course.   It really seems aimed at perpetuation the music industry as we know it.  Who knows how it will all shake out, how it gets through Congress (which needs to OK much of what’s proposed), and how long it will take.  What I’m not sure it does is ensure that the music marketplace will be fair and navigable to the smaller players, the indies, and lone rangers who make music because they have to and can’t be bothered becoming technocrats for the sake of getting the music to market.

            We’ll see.

Paul C Rapp is a high-altitude attorney and budding cheese aficionado who is pleased to be travelling to Harrisburg PA this weekend to give presentations at the Millennium Music Conference.

VALENTIME'S DAY 2015

It was 35 years ago today!  Blotto released its first EP Hello My Name Is Blotto What's Yours?  I took my boom box to work at the Empire State Plaza and had Q104 playing low ... Ellen McKinnon didn't play it, neither did Dan Boyle.  I was walking home to have lunch a little after noon and it happened: John Cooper played our version of Stop In The Name Of Love... and we were on the radio.  With my boom-box on my shoulder bro-style, I was mesmerized, so much so that I stepped into traffic on the corner of Hudson and Dove and nearly got run over.

We had a record release party that night at the Hullabaloo, which was a blast.   It would be months before we learned we had a real hit on our hands with I Wanna Be A Lifeguard; we were just a hard partying, silly, half cabaret, half rock band that made sure we all had a good time every time.

Anyway, one of the big regrets we've always had was that we didn't have a good live video of the band.  I have a vague recollection of a multi-camera shoot at a big Washington DC club called The Wax Museum, but nobody's ever seen any footage.  Then about a year ago I got a Facebook message from a guy named Charles Johnson that he had a copy of Tonight at Toads.  Apparently there was a television show in New Haven featuring bands playing at Toad's Place, one of our regular haunts, and there was an episode featuring us!  Who knew?

The show is from very early 1982; we'd driven to the gig from White Lake Studios in White Plains, where we were finishing up what was to become our album Combo Akimbo.  We were all wearing the embroidered bowling shirts I'd given out for Christmas a few weeks before.  The one thing I remembered from this gig was that at the time Portrait Records was trying to sign us, and a couple people from the label drove up from NYC to see us.  They brought this crazy little girl to our dressing room-- she had crazy hair and yelled a lot and clearly thought we were great.  I recognized her about 11 months later when Johnny Carson introduced her on her national television debut singing her new song Girls Just Wanna Have Fun.

Anyway, here it is, enjoy.  Thanks to Charles Johnson for digging it out and to Rob "Bert Blotto" Richter for cleaning it up!

2.5.15 I CAN'T SEE ME SUING NOBODY BUT YOU

This article originally appeared in the 2.5.15 issue of Metroland

Maybe you’ve heard about how The Turtles’ Mark Volman and Howard Kaylan (a/k/a Flo and Eddie) just won a big lawsuit against Sirius radio that will entitle them to all kinds of money related to the satellite broadcaster’s use of their recordings.  Maybe you thought oh good for them, they’re stickin’ it to the Man, musicians should get paid more by the greedy corporations, power to the people right on, etc..  Which is a sane reaction until you realize what this really is all about.  And what it’s all about is what a steaming pile of crap our copyright laws are, how they’ve been hijacked and warped by lobbyists, and this ruling (and several more recent rulings that follow it) are just the copyright karma chickens coming home to roost.  It’s messy.

            Explaining this in 800 words is gonna be tough, but here goes.  It concerns sound recordings, which have long had a dicey relationship with copyright law.  Sound Recordings are considered derivative works of musical compositions and weren’t covered at all by federal copyright law until 1972 (musical compositions, on the other hand, have been covered by federal law since the 1830’s).  And when Congress decided that sound recordings were entitled to federal protection in 1972, it only protected recordings made in 1972 forward.  So owners of pre-1972 recordings have had to rely on state laws for protection.  And, as you might know, there are 50 states.  Some have statutes that protect sound recordings, some have built up court-made common laws, and they’re all a little different.

            Some court decisions in the 1930’s established that states’ copyright protection for sound recordings didn’t include the “public performance” of sound recordings.  In other words, radio could play the recordings on the air without getting permission or paying the owner of the copyright to the recording, which is typically a record company.  And when Congress decided to start protecting sound recordings in 1972, it followed this ruling, and carved out public performances from the protections sound recordings would get.  Why?  Well, inertia, for one, it was the way it always had been, but it was the broadcast radio industry lobbying that really did it, convincing Congress that airplay was just a promotional device to sell records, so no protection or royalty was necessary.  Never mind that songwriters had always had a public performance right in their compositions (ASCAP and BMI are licensing agents for songwriters’ public performance rights) and that every other performance-oriented art form (theater, film, choreography, etc.) had a public performance right.  No performance right for you, sound recordings!

            Following me so far?  Really? Weird got weirder in 1995, when Congress decided to give sound recordings a performance right, but only for digital transmissions, like satellite and internet radio and music services.  Compulsory licensing terms would be set by a tribunal under the aegis of the Copyright Office. Sound recording owners couldn’t refuse digital airplay, but they would get paid for it under pre-set terms.  So if your record got played on broadcast radio, you got nothing.  But if that same radio station had an internet feed, you got paid for that.  Stupid?  Yes.  Is this the shadow of lobbying and big money causing nonsensical changes in the law because of nothing but greed?  Absolutely.

            So along come Flo and Eddie arguing that (a) the 1995 federal digital performance right thingee doesn’t apply to their pre-1972 recordings and (b) the court rulings from the 1930’s were wrong, and that they have a performance right in their pre-1972 recordings.  And last fall a court, a federal district court on California, agreed.  And a couple of other courts, including one in New York, have also agreed.

            This opens not a can of worms, but a flotilla of snakes.  The finding that pre-1972 recordings have a performance right means that everybody who has been playing these songs, not just Sirius, but every radio station, music service (like Spotify), shopping mall, wedding hall, etc., may be on the hook.  For what?  We don’t know, because the royalty rate would be a matter of negotiation between the owners of the sound recordings and those who have used them.  There are lots of owners, not just Flo and Eddie (Flo and Eddie did something very smart years ago.  They bought their masters back from their record company), but record companies with pre-1972 catalogs. There are lots of users, and, again, there are fifty states, which might have differing spins on how this all goes down.  Does enforceability go back in time?  How far?  Who knows?  This is why god made lawyers!

            These rulings will all be appealed, and sometime in the not too distant future the issue could end up in front of the Supreme Court.  Or Congress could just jump in and say that federal law protects pre-1972 recordings, putting an end to all this nonsense.  Oldies stations could start disappearing because their corporate parents are worried about potential catastrophic liability.  Spotify could pull all pre-1972 tracks.  It is this cataclysmic and bizarre.

            Meantime, all the far-flung elements of what can laughingly be called “the music industry” are... wait for it... Unhappy Together! Stay tuned!

Paul C. Rapp is an urbane-yet-rural attorney from the wilds of the Berkshires who is making an art form of woodstove fire maintenance.