Recently had an opportunity to spend a very impressive evening at Berklee College of Music’s “Perfect Pitch” event, which matched student songwriters with student vocalists for a concert that gave hope to any of us planning to stick around the pop music business for the next five years. Out of a dozen or so songs, there were at least three or four songs with real radio potential, and a couple of potential stars among the performers. That’s a percentage that would satisfy any A&R person or publisher.

However, what was even more satisfying was the acknowledgement implicit in the structure of the event itself, which was that pitching songs is no longer a business of sending out mp3 files or cold-calling A&R execs.  A perfect pitch is now about artist development, finding performance opportunities, building a story and measuring results.  I took onthe same subject in my own “Perfect Pitch” event, at the New York Songwriters Collective, in October.             Songwriters sending out demos to record execs or managers because they “have a song that’s perfect for your artist” are missing the point. No one’s looking for songs.

In the new music eco-system, there are 3 things the music industry needs, and the success or failure of any songwriter’s pitch can be predicted almost entirely on the basis of how many of those 3 things are in place.  If you can provide a clean sweep of 3 out of 3, you’ll likely be signing a deal memo before leaving the building. If you’ve got 2 out of 3, you will probably get an offer, though it might not be exactly the deal you were hoping for. Bring only one out of three and the best you can hope for is a polite invitation to come back sometime in the distant future.  Here are the three things that every weasel wants and will pay for—the essential components to a “Perfect Pitch”:

1.  Product

This just means ready-made artists and productions—records that are ready to go. In case you didn’t get the memo, major music companies are no longer in the business of developing artists or “making records”. A&R staffs have been slashed, and frankly, the track records of most A&R people were abysmal anyway.  Record labels and even publishers today are looking for people who have product in hand—artists who they’ve developed, records they’re releasing, shows they’re producing. Don’t bring demos. No one in the record business even knows what those are. Bring product.

2.  Platforms.

Every artist needs a platform—or three. A platform is a stage, but not in the obvious way. It just means a venue for exposure, a way of reaching an audience.  For about eight decades now, radio has been the dominant “platform” for breaking new artists, and while it remains important, it’s certainly no longer the only game in town. In most cases, radio is simply too limited, too expensive and too difficult to control to be the sole platform for an artist. You need some other ways to expose the artist to the public: mixtapes, club play, a television talent show, a spot on Glee, a touring spot, a YouTube video. Needless to say, songwriters and artists that can bring with them a platform, whether it’s a writer/producer like David Guetta, who also can use his status as a superstar DJ to give an artist and record exposure, or an actress/singer with a Disney show, or a band with a guest spot on a prominent tour, are bringing their labels and publishers a big head start.

3.  Proof

Not only has the internet brought a vast array of potential new platforms, it has also brought the ability to measure results in a very precise and visible way. The blather of a manager hyping the band’s live show (“you gotta see the crowd reaction—the girls go nuts for these kids…”) is now just so much white noise—much of the proof is plain to see:  How many YouTube views? Facebook friends? What are the sales figures like? How many Twitter followers?

Of course there are varying degrees of proof. As many labels have learned the hard way, 500, 000 Facebook friends, signing up free of charge, will not necessarily put gold records on the walls. Ticket sales and downloads speak much louder than YouTube views. Nevertheless, an artist or producer with a platform that delivers proven results, whether it’s a Top Ten Nielsen rating or a buzz on the key blogs, has the kind of story that A&R people want to hear, and to believe.

At the risk of raising songwriter cynicism to new levels, it’s worth noting that the actual quality of the music itself is not necessarily a predominating factor in any of these three elements.  Presumably, a badly made recording of a meaningless song performed by an uninteresting artist will not find many readily available platforms, and even if it does, it will not gather the kind of reaction that proves its suitability to the market. On the other hand, stranger stuff has happened.

The truth is, most modern music execs are neither qualified or interested in being Simon Cowell-like judges of talent. If there is a proven audience for a particular piece of product, and there is a way of getting that product to the audience, that’s enough to greenlight  a project at any record company or publisher still left in business. Whether it’s an artist like Drake, who brought a story of success from platforms like mixtapes and Degrassi, or Karmin, who signed their deal at Epic on the strength of a YouTube buzz, the contemporary songwriter needs more to their business model than just a bag full of demos, regardless of the quality of them. If the business is now about product, platforms and proof, then a songwriter has to be:

1.    Producer

Producers make product. They are talent magnets; they are people that develop talent.

This does not necessarily mean that you have to be a “producer” in the sense of being able to create records. If you’re a lyricist or a topline writer, or someone who can write but doesn’t really know anything about record making, then you’ll need to team with someone who can do those things. Your role will be to write songs that define the artist and give them a reason for existing.  Just as not every songwriter is a record-maker, not everyone who can program and mix is a producer in the sense of having a vision, drawing out and developing an artist, and giving a project a unique identity.  But however you and/or your team go about accomplishing it, the business now requires both elements, the song and the record, in order to create a product that anyone actually needs or wants.

2.   Partner

You can make product by yourself. But no one develops a platform by themselves. Syco can make records all day, but they can’t develop a TV show like X-Factor on their own. Drake can write songs and sing them, but he can’t break on a mixtape without featuring Lil Wayne, or Trey Songz, or others.  DJs need singers, singers need television talent shows, rappers need guest spots, bands need opening slots on tours. As Dean Martin put it, everybody needs somebody sometimes. If you want a platform, you have to build it by working with others.

In a larger sense, this means that songwriters need to be in the entertainment business, not in the music business. The entertainment business is growing, in areas including TV, cable, internet TV, film, games, internet content, books, fashion, and clubs.  Songs are a part of almost every entertainment form, and opportunities for music will continue to grow. But you cannot live in a music business vacuum. First, you have to create product. Then you must learn to partner, in order to build a platform. And if you want to be able to provide proof that your product and platform work, you’re going to have to be a:

3.  Promoter

In the big sense of the word.  You, or your partners, are going to have to take the initial steps to get your product into the world, at least in some limited way. Maybe it’s a local release, or a test market, or a pilot, or small tour, or a mixtape. But YOU will have to be the catalyst to make something happen and to show that what you’re doing connects with people. You can’t just write the songs, you’re going to have to pitch them and place a few—at least enough to show that they’re placeable. You will have to put your artist in a place where they can develop a following, whether it’s YouTube or a residency or a foreign release.

That’s what I liked best about Berklee’s “Perfect Pitch”. Here was a group of songwriters happily embracing each of the challenges in the creative process. Not just the challenge of writing a great song, but finding an artist to present the song, putting together a performance venue to create a platform for the music, and soliciting the reaction of a live audience and industry judges to gather some proof that the product was hitting its mark.

Even better, it showed a creative community networking amongst each other to find the singers, producers, arrangers, background vocalists, organizers and musicians needed to put the whole show together. More than any of the talent on display that night, and there was a considerable amount, that willingness to partner and collaborate will be the key to these students’ future success.  Compliments to Berklee’s Songwriting club, and to the faculty that supported them, in putting together an exciting look at what the next generation has in store for the music business…

Happy Holidays everyone!  Thanks for all your support for this blog, and I look forward to catching up with you in 2012.   Keep weaseling…

Not too long ago, I had an opportunity to work on a project alongside a large, big-name consulting firm. Here was an army of highly-educated wunderkids, all who came bearing one hundred questions, but rarely even one conclusive answer. As the project grew longer and longer, and the answers increasingly elusive, I decided that these people were simply not very good consultants. After all, where were the solutions the client needed?

One day, I shared my concerns with a friend, who herself is one of those sought-after, big-name consultants. She smiled. “Ah… they sound like they’re very good at their job,” she said admiringly. “If they accomplish the objective, everyone goes home. Smart consultants never solve a problem. At least, not before they’ve uncovered a new one.”

This came to mind recently, when I saw NMPA President David Israelite’s recent comments about the need for blanket licensing, bravely made in front of the publishing masses at the NMPA annual meeting, and also reiterated in Billboard:

http://www.billboard.biz/bbbiz/industry/publishing/david-israelite-nmpa-president-s-guest-post-1005250672.story

David Israelite

On the face of it, Israelite’s primary point is unassailable. The current system of licensing, particularly in regards to mechanical and synchronization licenses, doesn’t work and must be fixed. Who could dispute it? As Israelite quite honestly points out, after all the legal sturm und drang about YouTube, if Google came to the publishing community tomorrow and completely acquiesced to all demands, offering to pay whatever it took to license the rights they needed, the publishers would be completely incapable of actually doing the licensing necessary. On a legal, practical, and PR level, that doesn’t put the publishers on particularly solid ground.

Especially when it comes to licensing synchronization uses, music publishers have always insisted that the use of a song in “synchronization” with a moving picture (like a video, film, advertisement or game) requires the licensing approval of each owner of the copyright. That’s a number that as recently as the 1980s
meant potentially three or four songwriters and their publishing representatives, but can now often mean up to ten or twelve writers, some with different publishers in each territory of the world, some of whom may control as little as 1 or 2% of the song.

Needless to say, this could require weeks of phone calls and research, and that’s just to find out who controls the necessary rights. After that, the poor music supervisor, film studio, TV producer or advertising agency still has to come up with a sync fee number and legal terms that will satisfy all parties involved—all of whom of course insist on favored nations status with each other. Now multiply all those headaches by several hundred thousand.

Why several hundred thousand? Because in the internet age, that’s the way companies are interested in licensing music. The focus now is not on one specific featured use in a movie or advertisement. It’s not even on ten songs all needing mechanical licenses to appear on an individual album. Rather, services like YouTube, iTunes, Spotify, and others need to license the whole of popular music, en masse, in order to be able to offer the variety and selection that the consumer demands. In that context, one by one is a little impractical. Like having to obtain permission to use each individual word in your novel.

Needless to say, the need for blanket licensing is pretty obvious, particularly to those who spend each day trying to work through the morass of the current system. Historically, music publishers have not stood out for their foresight and boldness. Yet even they will acknowledge that the crisis has arrived, and something has to change.

In the area of mechanical royalties, Israelite suggests an approach that grew out of an attempt to reform the compulsory license section of the US Copyright Act (Section 115). This would provide for a series of mechanical licensing agents (similar to the PRO’s like ASCAP and BMI). Publishers would have the right to choose among the agents, or change agents, but these designated agents would represent the one-stop, or maybe three or four-stops for anyone seeking a mechanical license. Further, these same agents could also license synchronization rights, on a pre-set, “blanket” rate basis. The blanket licenses would cover everyone and everything, eliminate the back and forth negotiation over each individual permission, and hopefully bestow that warm and fuzzy feeling for which blankets are known.

It sounds more efficient for the publishers as well as for the people seeking to license music or to build services around music. And while it certainly takes away some of the possibility of demanding a king’s ransom for that 7.5% share of the classic copyright that you own, the increase in the number of small wins, on a global basis, will probably more than make up for the loss of the occasional jackpot. Not to mention, it might keep folks like YouTube from just tossing in the towel and taking the music without any licensing at all.

So why hasn’t it happened?

As I said up at the top—not everyone loves a problem-solver. If the consultants fix what’s broken, everyone goes home. Likewise, music publishers don’t necessarily want to remove the logjams in the licensing system. Those logjams are largely the reasons publishers exist in the first place. Simplifying a system is rarely good news for the middle-man. And publishers are the ultimate middle-men between songwriters and the people who actually use the music the songwriters create.

If one agent is responsible for issuing all of the mechanical and sync licenses according to a pre-set fee structure for a particular composer’s catalog, why would that composer need a publisher? After all, the agency is presumably already taking some sort of fee for its role in the process. Why would a songwriter also give a publisher a 25% share of the income for the next 15 or 30 years? To do what? In a more precise example—if the whole music licensing world worked in roughly the same way as ASCAP and BMI do with performing rights, would future songwriters have any real need for a publisher?

Skeptical music weasel that I am, I don’t anticipate that the NMPA membership will be rushing out immediately to champion the cause for blanket licensing. Still, realist that I am—it’s probably worthwhile for those in the publishing game to take a glance at the inevitable and ask, in our customarily self-interested way:

What does this mean to us?

Three quick things to ponder, as our livelihood passes before our eyes:

1. Age before beauty.
The older publishing catalogs, particularly those built in the Fifties, Sixties and even Seventies, when you could still manage to obtain a full-publishing share for life of copyright , are looking even better. They won’t be doing deals like that no more.

2. Quantity over quality.
It’s hard to see how a blanket licensing system will not in some way reduce the viability of building a successful business around a few isolated “big copyrights”. While the sync fees may come down for any one individual copyright, the theory is that the money will be made up in volume. It may well be true, but it’s a system that favors the major publishers, who own thousands of licensable songs, rather than a small independent with one classic in the catalog.

3. The end of the paper tiger.
If licensing problems disappear, administration is no longer a service for which songwriters will pay. That means it’s all about advances (as if it weren’t already) and creative services. Songwriters may still need a bank, at least to keep them alive in the early stages of their career. They may also still need someone to help them jump-start their career and keep it moving—pitching songs, setting up collaborations, and finding opportunities for their music. At least, I hope they will.

Otherwise I’m going back to my consulting business.

Follow me on Twitter @EricBeall

Tomorrow's Forecast

Jun 22 2011

Today was a strange day in NYC —not quite sunny, but not giving in to rain either. The skies were in constant motion, drifting from lightly overcast to grey and ominous to hazy and hopeful in a constant cycle that never seemed to reach a culmination.

It’s not unlike the music business these days. No doubt there are some dark and weighty issues hanging over us, including the massive restructuring (or lack thereof) of the major music corporations, the budding crisis at the PROs and HFA, and our continuing inability to sell music, except when we essentially give it away at 80% off. Still, the mood among the weasels is noticeably brighter these days, and it’s not only due to the promise of a summer weekend with Lyor in the Hamptons. It’s as if those dark grey clouds have lifted a bit, and have been replaced by clouds of the whiter, puffier sort. Clouds that look a lot like an iCloud.

Negotiating season is over, and for once a new music technology is being brought to consumers with the blessing of the music industry—we’ve not been blindsided, ignored, or misled. Or at least we don’t know it yet. In fact, for the first time in decades, the music industry and the publishing business in particular acquitted themselves quite nicely at the bargaining table, not sticking in the fork to gouge a promising innovation but not settling for table scraps either. Maybe ten years of trouble has taught us something. No one wants to mess up what might be the last great hope for the music business.

Of course, at the moment, it is indeed a matter of hope. On the positive side, a partner like Apple certainly instills some confidence. Since the inception of iTunes, they’ve managed to consistently comprehend the way the modern consumer wants to listen to music, and to provide the best, most stylish, and most iconic technology to meet that need, in a way that music companies, including technology giants like Sony, have not.

At the same time, it remains to be seen how much of that genius stemmed directly from Steve Jobs, and how much will endure now that he is no longer an active presence in the company. I’m sure I’m not the only one to at least ponder why someone who refuses to pay even 99 cents for a legal download will pay $25 a year for a music locker, in which to store the contraband. But like the rest of the publishers, labels, artists and songwriters that have suffered through a decade of downloading and file-sharing, I sure hope they do.

In fact, one of the best aspects of the new licensing agreements between labels, publishers, and Apple is the chance to actually monetize, in retrospect, much of the music that has been pilfered in the past. With iCloud, Apple is charging $25 a year to scan and match a user’s existing music collection for songs not purchased from iTunes against the iTunes library—users will then be able to redownload up to 25,000 tracks to those same devices. With labels and pubs actually getting significant share of that $25 fee, this is a chance to recover at least part of what we missed the first time around. Life does not offer many such second chances.

Even better, the technology of the cloud allows true, verifiable accountings of what is being purchased, using iTunes Match to monitor what each individual consumer is putting into their locker. Unlike radio monitoring at the PROs, which is an error-ridden exercise inevitably weighted toward the mainstream pop playlists and the major publishers who represent the bulk of those writers, or the questionable system of divvying up the pots of gold netted in settlements with YouTube, Napster and the like, the accounting practices of iCloud should allow for a reasonably transparent system. While Apple has yet to lock in deals with the indie record companies and independent publishers, they have said that they will offer independent publishers the same percentage as is received by the major publishers who have signed on. Happily, the deal structure that’s in place would seem to be capable of getting everyone a piece of the pie.

Most importantly, unlike previous deals with companies like YouTube, we might be getting a share of a pie that’s actually large enough to mean something. Under the current agreement, the revenue from iCloud will be split with 30% going to Apple, 58% to record companies, and 12% to the publishers (and songwriters). For publishers and songwriters, that’s a big raise from the .091 cent per unit statutory mechanical rate—and most of us haven’t been seeing full stat rate on a consistent basis for a long, long time.

David Israelite

On the songwriter and publishing side, much of the credit for wrangling a more equitable split of the money goes to David Israelite, the president and CEO of the National Music Publishers Association. Easily the savviest of those trade group lobbyist/media spokesperson/diplomat/enforcers who’ve become the real champions of the music industry while the label presidents and publishing chiefs have been busy moving offices, schmoozing with hedge fund managers, and judging TV talent shows, Israelite was not directly a part of the iCloud negotiations. But according to Greg Sandoval’s insightful article in CNET News, Israelite was key in encouraging the publishing community to put some steel in their all too flexible spines. It’s a little like telling Charlie Brown, the perpetual loser, to man up and kick the ball. But lo and behold, it seems to have worked.

http://news.cnet.com/8301-31001_3-20071823-261/apple-google-music-clouds-can’t-snub-publishers/

Now, we can only hope that the publishing powers that be will also listen to Israelite’s advice about the essential need to streamline the process of licensing. Tech services have been demanding this for years, and every person that labors in the publishing community on a daily basis knows that the system as it currently exists is entirely dysfunctional. It doesn’t work for the new technology services, it doesn’t work for the old ones, it doesn’t work for the publishers themselves, and it certainly doesn’t work for the songwriters. If you want a peek at how bad it is, check out my blog “Life In The Slow Lane”:

http://ericbeall.berkleemusicblogs.com/2010/08/12/life-in-the-slow-lane/

But with the prospect of clouds on the horizon, publishers are going to have to sacrifice a certain level of independence in order to make sure that this new technology can be successful. The ability to access all music all the time without restrictions is a key factor in winning over the public to a format that could be the miracle cure for our business. We simply can’t afford to cling to our old system of clearing songs writer by co-writer, publisher by co-publisher, territory by territory around the world. No one has been a more outspoken advocate for the rights of publishers and writers than Israelite. But even he realizes that now is the moment to seize the initiative.

For the first time in a very long while, music publishers are in the drivers seat, but we have to keep the motor running. As we’ve already seen with YouTube, technology will move ahead with or without us. If people can’t get what they want legally, they will simply find another way. It’s up to us to create a centralized, global, uniform licensing system. If we can provide that, we are in a position to leave behind a mechanical royalty rate that even at its best was wildly weighted in favor of the record labels.

The current deal with Apple is a good one, and any competing service is going to have to match or better it in order to get in the game. Moreover, no one can win this game unless they have access to all our songs—old, new, hits, misses, and obscure album cuts.

All we have to do is go back to making music that matters to an audience, and figure out a quick way to make it available to them. The opportunity is there. As any kid who’s ever stared into the sky could tell us, clouds are what you make of them. If we make the necessary changes in the licensing process, they could bring an end to the longest drought of our lives. But there has to be something to put inside them. The cloud without our music is just that – an empty, substance-less piece of dead air. It’s up to us to make it rain.

Follow me on Twitter @EricBeall

This Year's Model

Jun 14 2011

It’s all about songwriters and publishers in NYC this week, with the AIMP (Association of Independent Music Publishers) annual lunch on Wednesday, followed by the NMPA (National Music Publishers Association) annual meeting that afternoon—then if all that wasn’t quite exciting enough, some real star power with the annual Songwriters Hall of Fame dinner on Thursday evening. But amidst the rubber chicken meals, the cocktail chatter and the endless self-congratulation, it’s probably worth taking a minute to try and tackle the tougher questions, like considering what lies ahead for those who want to be in the business of making music.

Clearly, this is not the same business as it was for many of the writers being inducted on Thursday into the Hall of Fame. That’s not to say it’s harder— it’s never been an easy road, after all. But at a time when the role of the record company is evolving (or perhaps evaporating), sales are plummeting, and at least two of the four major publishers are laying on the “For Sale” shelf like tchotchkes at a bargain garage sale, there’s no reason to plod blindly down a career path with a detour sign set in the middle of the road.

I had a couple of A&R meetings at the major labels this week, and it was clear that regardless of who stays and who goes—which is the only real topic of discussion at any of the four major companies these days—the needs of a music company in the 21st century are pretty much the same across the industry. Falling revenues, reduced A&R staff, a singles-oriented market, and an audience with an attention span barely sufficient for a twitter posting are the realities that everybody has to face. Across the board, the companies that sell music on a national or global level are all looking for the same three things:

1. Ready-made artists
Record labels are no more in the business of developing artists than Wal-mart is in the business of growing apples or raising cattle. The A&R people who once brought some amount of expertise (meager as it may have been) to making records, choosing songs, or helping an artist define his or her sound have either been downsized into the role of an occasional consultant, or upsized into being label presidents, which of course means they don’t have the time to spend making records, choosing songs, or helping define an artist’s sound. Labels need a product that is ready to sell, but they are no longer in the business of making that product. That’s someone else’s job.

2. Marketing platforms
Even with allowances made for the impact of file-sharing and free YouTube music videos, it’s hard to deny that music, by itself, no longer packs the entertainment punch that it once did for the general public. Today, music competes with video games, social networking, and homemade movies of someone’s funny cat—and at the moment, we’re losing the game. As one A&R veteran bluntly told me, it’s simply not enough to try to get a song on the radio and hope that it will cut through the pop cultural clutter. This is why Columbia has just done a deal with the upcoming TV show “Smash”, that they hope will be the next “Glee” (another Sony Music project). It’s why Universal signed on for not one, but two, talent contests, with “American Idol” and “The Voice”. It’s why Bono and the Edge are spending endless hours reworking “Spiderman”. To be effective in the present entertainment economy, music needs to be teamed with some other entertainment or marketing element, whether it’s theater, live performance, television, brands, video games, books, or nightclubs. Music is becoming like sugar—it’s part of everything on the plate, but it’s not really a meal in and of itself.

3. Machines that are already up and running
They don’t have to be Big Machine’s, like Taylor Swift’s. But in the same way that a record label’s A&R department is not looking to develop an artist, a marketing department is not looking to create a marketing plan from scratch. Everyone wants to be part of something that is already happening. A marketing plan is a theory, which often looks good on paper, but doesn’t play out quite as expected. A marketing campaign, even on a very small, local scale, is already generating a response, showing what strategies work, which ones don’t, and whether or not there is an active audience passionate about the artist. Whether it’s artists selling their own downloads, YouTube videos getting seven figure responses, hot mixtapes generating a buzz, or high-profile guest spots with established stars, music companies are looking for artists with a story—and they’re looking to enter that story on page 50, not on page 1.

In an environment like this, it’s interesting to see that the Songwriters Hall of Fame has chosen to give this year’s Hal David Starlight Award (usually handed out to relatively young talent—young being anyone under the age of Hal David himself) to Drake. Here’s an artist who was already on the charts before locking in his label deal, who used marketing platforms from “Degrassi” to mixtapes to features with artists like Lil Wayne to launch a career that seemed almost a fait accompli from the moment he first emerged onto the scene. Whether Drake’s actual music warrants a Songwriters Hall of Fame award is arguable. But there’s no question that his business model is, quite literally, state of the art.

Drake


Where does this leave the isolated songwriter who spends his day making demos to send out to the strangers listed on tipsheets, hoping for that one big cover? Or the singer/songwriter recording her own album with the hopes of finding someone to distribute it? Most likely, it leaves them endlessly behind—forever chasing an industry that has changed, one which demands new skills to play a new kind of game.

Producers have to be talent magnets—finding artists, defining their sound, and making records that break through the white noise of a thousand other entertainment options. Lyricists have to be able to capture, or in many cases, give an artist an identity, with a provocative, reactive message. Artists need to be multi-faceted—singers, dancers, actors, DJs, fashion or lifestyle icons, or all of the above.

Every music creator has to be in the entertainment business, not just the music biz. Producer/writers like David Guetta, Will.i.am, or Dr. Dre, artists like Lady Gaga and Rihanna, and topliners like Kara DioGuardi are not simply songwriters. They’re entertainers on multiple different levels. And in many cases, successful songwriters have to be catalysts—capable of getting something started on their own. It’s not enough to put together great songs, or even great records. In order to build that initial momentum, songwriters have to be able to pull together the right team, network to find the key relationships, strategize a street-level marketing campaign and invest the effort to get the whole thing started.

To hear a hit on the radio and blithely announce “I could have written that song” is to miss the big picture. Could you have found the artist? Developed the artist and defined their musical, visual and lyrical persona? Identified the other marketing platforms that could be the initial springboard to launch their career? Welcome to the big leagues, kid. There’s more to it than meets the ear. With the understanding that no one can do everything well, and it’s not only advisable, but essential to bring others into the process, here are five things you can do to be a songwriter for the here and now:

1. Start looking for artists to develop. Or start looking at yourself.
Remember, you’re not the only one out there searching for stars. You’d better be looking as hard or harder than any A&R person. On the other hand, if you are an artist/writer, then put yourself to the A&R test. Do you have the look? If you’re an urban/pop artist, can you dance, act or rap, as well as sing? If you’re a singer/songwriter, are you a musician and performer at the level of a John Mayer or Alicia Keys? If you’re investing your songwriting in your artist career, you have to be realistic about that investment.

2. Write singles
You’ll never break an artist, whether it’s yourself or someone you found, with a collection of album cuts. So don’t bother writing them. Focus on songs that are mid to up-tempo, fit into a radio format, and have a lyrical idea exciting or provocative enough to cut through the clutter and define the artist.

3. Know your audience
Who are the people who will buy this music? What do they look like? Where do they live? Why do they listen to music? What are they doing when they listen? What’s important in their lives? If you don’t know who will like this music, then neither will a record company, or a radio station, or the press. Successful songwriters hit the target consistently because they aim.

4. Find the platforms
Once you know your audience, it’s not that hard to find the other marketing platforms that might reach them. Classical crossover acts appeal to an older, somewhat sophisticated audience—consequently, you look to land a special on PBS. With a dance artist, you look for a song placement in a video game or Jersey Shore.

5. Do something. Don’t wait until you can do everything. Just do what you can.
Now that you have your artist, your single, a clear picture of your audience and the marketing platforms that can be used to reach them, what will it take to get something started? What could you do on a local level? What can you do for nothing on the internet? Who do you need on your team?

Not many of us are strictly songwriters. Think about your other skills and how you can use them to support your project. If you’re a great musician, can you put together a band for the artist? If you’re a DJ, can you get the artist a few track dates or play the record in your club? If you’re a studio owner, can you shoot a great YouTube video? If you write jingles, can you introduce the artist to some of the advertising agencies you work with?

Perhaps there once was a time when you could make a living writing songs in the secluded privacy of your living room and sending them out to artists around the world to cover. I don’t know—I wasn’t there. I’m old, but not that old. But just as a contemporary author has to be a media personality, talk show guest, and public speaker, or a modern soldier is expected to fill roles ranging from technician to policeman to community organizer, the job requirements for songwriters have expanded. Times change. The good news is, this new model songwriter has a lot more power and influence in the industry than his or her counterpart from even a decade before. At least if you build the machine, you control it.

So what better way to celebrate the end of a week spent celebrating songwriters and publishers than New York Songwriting Day 2011, a songwriting clinic aimed at jump-starting your songwriting in one day! Put together by well-known songwriter and producer Tony Connif, and with a variety of speakers that includes Berklee professor John Stevens, my buddy Alex Forbes, and myself, this should be a great educational and networking opportunity. It’s held on Saturday, June 18 from 12-6pm, at The Collective School of Music Performance Space, 123 West 18th Street. Contact tonysmusic@earthlink.net for more info.

Hope to see you there!

With Memorial Day quickly approaching, it’s time for the annual migration of summer interns, returning from school to fill their summer with a dose of real-world experience, an insider’s view of the industry, and the kind of work history that will actually mean something when graduation rolls around. Unfortunately, three years of academic study have not necessarily provided a background of fundamental skills for a day in the office. Having been a songwriter for almost 20 years before I ever got my first taste of an office gig, I can assure you that it requires some adjustment.

Whether you’ll be spending your summer working in a small start-up venture or wandering the halls of 550 Madison Avenue or Rockefeller Center, you’ll need to know more than how to run the coffee-maker. That “Critical Analysis of Music and Entertainment Industry Paradigms in 21st Century American Popular Culture” class you took might not have fully prepared you for 12 weeks in the trenches. Here are 10 Tips for Maximizing Your Internship, and Getting Invited Back Next Year:

1. Be on time.
Most music companies do not open at sun-up. A 10a.m. start time will not strike most of the working world as cruel and unusual punishment. Nevertheless, showing up at 10a.m. for a job that begins at 10 will put you ahead of 90% of the other employees and interns. It’s that easy.

2. Do some homework.
I know—school is out. But the homework continues. One hour on the company website and a little Wikipedia should be enough to give you what you need to know: the company history, top executives, biggest hits in the catalog, top current acts, whether or not the company is being bought or sold and to whom. Now that you have all the essential information… memorize it.

3. Read Billboard.
The people around you are watching their lives and careers rise or fall with the chart positions each week. If you want to understand their mood, share their humor, feel their pain or avoid their wrath, it’s best to know who’s moving up and who’s falling down.

4. Accept all invitations.
If you’re asked to check out a showcase, attend a video shoot, go to a rehearsal, put up fliers on telephone poles or join in a birthday party for another intern, it is not actually a social proposition. It is a command performance. Be there. Everything else you’re doing can be cancelled or rescheduled. That’s life in the music business.

5. Know the music.
No one actually cares what kind of music you like. Or what new bands you’re into. Or that you’re a hip-hop kid who happens to have gotten an internship at Sony Masterworks. You need to know the music that your department works with, whether it has any appeal to your personal taste or not. This is not actually about you. It’s about the music that pays the bills for the office you’re sitting in.

6. Listen.
Even when no one is speaking to you. I had an intern once who overheard me speaking with someone about dub-step, and ten minutes later brought me information about an upcoming NYC show and two hot producers. Mastering the art of subtle eavesdropping is a valuable survival skill.

7. Elevate the communication level.
If someone asks you to give them an update, a report or a brief on something, they’re not looking for some jotted down notes on a piece of tablet paper or a print-out from the internet. Write a report, or a memo, or an email—with a proper heading, a consolidated and edited summary of what you’ve found, and bullet points for what you feel is the crucial information. Use spell-check. If you speak in a meeting, don’t ramble and don’t be shy. Especially in a large corporate environment, appearances matter, from the layout of your memo to your posture when you speak.

8. FOCUS.
It is possible to go a full eight hours without checking your Facebook page. Try it. If you’ve got a YouTube video on your computer screen, it better be an act on the label, a song in the catalog, or an artist the company is looking to sign—not a funny kitten or an SNL segment. Unless your boss has your number, turn off your phone. Listening to your iPod will preclude listening to what’s happening in the office—see item #6. You’re at work. So work.

9. Ask questions—that aren’t about you.
Everyone likes an intern that is full of questions. But not the following questions:
Will you listen to my band? “
“What do you think should be my career focus? “
“What’s the best way to work my way into a full-time gig at the company?”
“Can you introduce me to your contact at the company across the street?”

These are questions about you. The questions that are interesting to the people at the company are about them—the company itself, the artists or songs that the company represents, the people who work there, or the business strategies that are paying off or not paying off. Try:
“What were the key factors in deciding to sign that particular act? “
“What areas of this company will be the growth sectors in the next few years?”
“What are the skills that this company feels are the most important for entry-level employees?”
“How long have you been doing business with Joe across the street? How did that relationship develop? “

10. Bring the energy.
No one expects a young intern to know everything, to solve their company’s problems or even to drastically alter the workload. In fact, it’s pretty acceptable to screw things up once in a while—everyone’s done it. You’re supposed to bring the youthful energy. The know-how can come later. What’s not acceptable is to be tired, bored, distracted, or anonymous.

Even in the relatively small company where I work, we’ve had numerous interns who became full-time employees after graduation. We’ve had interns who we later signed to publishing contracts. We’ve helped interns get jobs with other companies in the industry. We’ve also had a reasonable number of interns fade off into the sunset, leaving no follow-up email address, no sustainable relationships in the company and no lasting impression on anyone. That’s a wasted summer.

Andre Harrell & Russell Simmons, with their best intern... P Diddy!

This is a very bad business for boring people. If you can’t make some kind of impact over a 12 week internship, then you may need go back to school considering other career options. This is the first mark you’ll make in the music industry. Make it count…

If The Shmoo Fits…

Mar 23 2011

In case you’re lying awake at night dreaming of being the next Rebecca Black (and really, who isn’t?), you might want to read a little further before you equate fame, which is cheap and getting cheaper, and fortune, which is ever more hard to come by. Just last week, the Copyright Royalty Board released the statutory royalty rates for Internet radio royalties, which are royalties paid by webcasters for the streaming of sound recordings. It’s not exactly the pot of gold at the end of the rainbow. At the same time, it’s actually a step forward from where we were several years ago.

To be fair, YouTube is not one of the services covered by these royalty rates (although YouTube’s rates are not much better). The published rates apply to “noninteractive streaming”, which refers to streams that do not allow the listener to specifically select each individual track– it covers everything from radio-like “broadcasts” to what are termed “pureplay’ webcasters like Pandora. And more importantly, these rates are for royalties paid through Sound Exchange to performers on the “sound recording”– that’s in addition to the royalties paid to music publishers and songwriters, through ASCAP, BMI and SESAC. If you are a performer who writes and publishes his or her own music, you should receive royalties from Sound Exchange (representing your earnings as a musician and/or owner of the sound recording) and from ASCAP, BMI or SESAC (who collect your money as the composer and publisher of the song).

Like most agreements that are the result of hundreds of negotiating hours between attorneys, the basis for the rates is almost entirely incomprehensible. There is a distinction between broadcasters (commercial radio stations for example) who are streaming their programming on the Internet and “pureplay” webcasters like Pandora, who do not have a broadcast component to their business. There are exceptions for small services that can’t afford the agreed upon rates as well as noncommercial services. NPR gets its own special deal. Then we get to do the negotiations all over again in 2015. Still, it’s worth at least getting a rough idea of what your music earns for you, as a performer, when it shows up on an Internet stream. To get the full story, check out:

http://www.broadcastlawblog.com/2011/03/articles/internet-radio/final-webcasting-royalty-rates-published-a-comparison-of-how-much-various-services-pay/

Here’s the basic breakdown for 2011:

Broadcasters Per Performance Royalties:
$.0017 per performance

Statutory Webcasting
$.0019 per performance

Pureplay Webcasting
.00102 per performance

I know…. it’s alot of zeroes before you even get to the decimal point. You read correctly: it’s significantly less than one cent per performance. Ouch.

But keep in mind that this number is multiplied by the number of people listening to the stream. Therefore, a “pureplay” service offering 10 songs an hour to 1000 listeners would be paying a royalty of $10.20 per hour– or about a dollar per song. That’s not so bad, especially if you’re talking about a lot more than 1000 listeners.

Indeed, before we start complaining about the rates, it’s worth noting that performers are still fighting (after only about 80 years) to receive any royalties at all for use of their music on commercial radio. While songwriters and publishers receive performance income from the use of the songs in a radio broadcast, record labels and artists receive nothing, except that all important “exposure”. Which leads me to my real point…

Why is it that songwriters, publishers, labels and performers always seem to find themselves begging and pleading for a small crumb from the pie when it comes to every new media invention throughout history?

It happened with radio. In fact, it’s still happening with radio. Since the 1930′s, writers and publishers have been battling for what amounts to a tiny percentage of the overall profits from commercial broadcasting, when virtually every radio format in existence (except news, talk and traffic) is entirely built on music! And performers still haven’t managed to get anything at all.

It happened again in the 1980′s with MTV. Here was a television network built entirely on music, that paid nothing for the music videos upon which the channel relied. Today, the videos are in short supply, but MTV continues to pay almost nothing in synchronization fees for the music that it uses throughout shows like “The Hills”, “Gossip Girls” and “Jersey Shore”.

Then it happened yet again with YouTube in the last decade. In a virtual replay of the MTV story, the creators of YouTube constructed an Internet broadcasting network fundamentally based on the illegal, unlicensed use of any and all music, then sold the enterprise off to Google for a billion dollars, never having paid a nickel to OK Go, Soulja Boy, or any of the other YouTube phenoms who brought the company most of its biggest stories. Since then, Google has adapted a more acceptable position in regards to royalties, and YouTube is licensed by the PROs. However, as any songwriter or artist will tell you, the money being generated for the creative community is more symbolic than substantive.

OK Go

When a problem keeps occurring over and over, it’s usually worth considering whether YOU might be doing something wrong. Sooner or later, the music community– labels, publishers, songwriters, artists, producers and musicians– is going to have to take off the headphones and step away from the control board, or duck out of the board meeting, or skip the after-party and take a few minutes to ponder:

Why do we keep getting screwed by the people building businesses around the music we create?

Here are three quick explanations of why the music business seem to continually find ourselves desperately, hopelessly passing the bucket around the media industry, hoping someone drops in some spare change:

1. We are incapable of acting in concert.

We can make concerts all right. But labels, publishers, artists and musicians can never manage to act “in concert”– that is to say, as a unified front capable of fighting for the rights of everyone in the industry. Publishers distrust labels. Labels take advantage of the artists. Artists desperately undercut one another, hoping to grab an opportunity to set themselves apart from the pack. Now we even have the problem of publishers and songwriters going around ASCAP,BMI, and HFA to license directly, effectively damaging their own representatives in the collective bargaining process, all in order to save a few percentage points worth of fees. Not surprisingly, everyone in the media, from advertisers, to networks, to film studios and Muzak programmers, have realized that there is always someone willing to license their music for next to nothing, or at least less than their buddy is charging. We are, by and large, an industry of weasels, and it’s not helping our cause.

2. We forever believe in the myth of “exposure”.

I remember when I first started playing the guitar, back in grade school. Soon I had formed a band, and even at that young age, I quickly realized: everyone always has a party, a dance, a wedding or a bar mitzvah that they want you to play for free– “because it will be great exposure”. Of course, it’s not entirely untrue. Clearly, OK Go got plenty of benefit from their “free” YouTube video, as has Rebecca Black. But as a business model, the idea of giving away the product to another company who then keeps all the money that your product generates has not panned out very well for us.

In perhaps the greatest irony of all, the music industry actually winds up paying out huge amounts of money to radio (and back in the day, to MTV) in order to get those media outlets to use their music for free. It’s not just that we’re giving it away for nothing. We’re actually begging, pleading, and paying out the nose just to be able to give it away. Meanwhile, someone else is building their Clear Channel, or MTV or YouTube, largely from people tuning in to hear our product. And the more people that tune in, the more someone else earns, while we get nothing. But don’t worry. It’s great exposure.

3. We continue to focus solely on creating music, rather than selling it or marketing it.
Why was it Apple, rather than Sony for instance, who created the iPod, and iTunes? Why didn’t the major record labels, having already learned about the power of music videos from all the “exposure” they got from MTV, come up with YouTube? Why couldn’t a music publisher have invented Pandora? Instead of battling endlessly with the corporations who control these ventures, none of which have any inherent investment in music, the industry could actually control and profit from the medium it uses to promote and disseminate its product to the public. Instead of passing the bucket around after the set, the musicians could actually own the club.

It never happens. The history of the music business is the story of one fatal flaw, and that is the inability to think beyond the music itself, to how the public wants to receive that music. We’re creators and owners of content. But we’re never interested in thinking about how that content could be used.

Doug Morris

A few years ago, Doug Morris, then the head of Universal Music, gave a widely publicized interview with Wired magazine– where he bemoaned the effects of the digital revolution, and complained that everyone was treating the record industry like “The Shmoo”:

“There was a cartoon character years ago called the Shmoo. It was in Li’l Abner. The Shmoo was a nice animal, a nice fella, but if you were hungry, you cut off a piece of him and put onions on it, and if you wanted to play football you just made him like a football. You could do anything to him. That’s what was happening to the music business. Everyone was treating the music business like it was a Shmoo.”

Acknowledging that his lack of knowledge in regards to technology made it difficult even to hire the necessary experts, Morris insisted that his job should solely be finding and developing new artists.

“There’s no one in the record company that’s a technologist. That’s a misconception writers make all the time, that the record industry missed this. They didn’t. They just didn’t know what to do. It’s like if you were suddenly asked to operate on your dog to remove his kidney. What would you do?”

Given an attitude like that, it does seem a little surprising that Morris would be the choice of Sony (didn’t they use to be a technology company? ) to revitalize their music division in the year 2011. But of course, that’s exactly the problem. We’re so used to being the Shmoo, we couldn’t possibly think of doing anything else. It might be wise for musicians and performers to keep their calculators handy. Because we’re going to have to continue to live off royalty rates like $.00102 per play for some time to come.

Life in the Slow Lane

Aug 12 2010

While I was walking home tonight, I passed by a museum and something in the window caught my attention. It was a display of a small antique pipe organ from the late 1700′s– it looked like a very early attempt to create a miniature Wurlitzer that could be played at home. A rather odd, “Chitty Chitty Bang Bang” type of contraption, it reminded me of the homemade time travel machine rigged up by Doc Brown in “Back to the Future”. In its day, it probably looked as cool as the iPad. Now, it’s not something that anyone uses to get the job done.

The sight of this awkward, ungainly invention brought me back to an analogy made by one of my colleagues earlier in the day, as we discussed the current challenges of copyright licensing. “I feel like we’re trying to drive some old unrestored 1950′s clunker” he said, “the kind that only the old guy that owns it can actually drive, because you have to know just how to wiggle the gear shift and how many times to pump the brakes to make it all work”. I heard almost the same sentiment at a lunch with one of the industry’s most respected copyright lawyers. Everyone in the music business knows it’s true, though few will say it publicly, since it directly undermines our demands to get paid for what we own. But the old copyright system just ain’t working anymore. The truth is:

The process of licensing copyrights has to change drastically and fundamentally, if the whole concept of copyright is going to survive at all.

Right now, we’re driving down the Information Superhighway in that old 1950′s jalopy– we’ve got it floored and we’re doing about 35 miles an hour. Copyright holders are not only being run over, we’re also being passed by, as young entrepreneurs from the Google, YouTube, Spotify generation create global empires built on providing immediate, free access to entertainment and information. Meanwhile, the copyright community is still back somewhere on the side of the road, trying to figure out who owns the rights in which territory and for how long, and who has the right to issue the license, and how many licenses will be necessary, and what should the license cost. At best, we’re an impediment. At worst, we’re irrelevant.

Consider:

At a family wedding, the bride and groom do a crazy dance to a medley of big pop hits– it’s all relatively harmless (at least from a copyright standpoint) and clearly covered by the principle of “fair use”. After all, this is kind of what music was made for. But not too surprisingly, the dance is captured on videotape by the people filming the wedding. It’s then posted on YouTube, probably as a simple, cheap way of sharing the moment with family and friends. Again, it’s all still covered by fair use, since it’s largely a private activity and there’s no attempt to sell anything.

But suddenly, the family wedding video becomes a viral phenomenon, and millions of viewers go to YouTube to watch the silly dance, generating plenty of tangible economic benefit to YouTube in the process. At this point, clearly the copyrighted material contained in the video (that is the medley of recorded music to which the dance is performed) should be licensed, and the labels, artists, publishers and songwriters should be compensated. But how? Just a guesstimate would indicate that there could be 15 different artists, all of the major labels (some of which might no longer own the master recordings in question), probably at least fifty songwriters, and twenty different music publishers, each of whom would have to grant permission, and then play a role in determining the appropriate sync fee for each song. It would take months for a two minute home video, and probably cost in the six figure range. Ridiculous.

Here’s another:

A video collector owns outright some archival footage of a big star performing on a TV variety show from years ago, which a new mobile entertainment provider now wants to license and sell as a download to mobile phones in Asia. But within this short segment, the big star performs a song, which would have been licensed under a sync agreement that covered only that particular performance, in that territory, during a specific window of time. In order to use the footage in a different medium, territory and era, a new sync license will need to be negotiated with all of the publishers (many of whom have sold their catalogs or allowed the copyrights to revert to the songwriters). And then there’s the matter of union fees. Several of the performers on the show may have been members of the American Federation of Television and Radio Artists (AFTRA), Screen Actors Guild (SAG) or the American Federation of Musicians (AF of M), which means there might be residual payments due for any reuse of the show. Good luck figuring that one out.

A last example:

A music fan in Japan wants to purchase the new CD by an American act signed to Columbia/Sony Records in the US. The CD has never been released by Sony in Japan. The fan logs on to Amazon, locates the CD, and purchases it. But Amazon can’t fulfill the transaction, due to a copyright infringement lawsuit initiated by Sony Japan. As the local distributor of Sony product in that territory, Sony Japan owns the rights to sell that product in their region. By allowing the consumer to purchase directly from Sony in the US, Amazon is infringing on the copyright. And it’s true, even though Sony Japan has no intention of making the record available in Asia. As the copyright holder, the local company has the right to distribute the product or not, at their discretion.

In part, this explains why a consumer in the US who wants an album by a French artist released only in France can’t simply go on iTunes and purchase it. He or she can go to iTunes France and see the album or hear samples of the music. Certainly, the consumer can steal the record on any number of illegal sites. But purchase it? Nah. That would be copyright infringement. Go figure.

Anyone who reads this blog regularly knows that I’m a staunch defender of copyright. I’m not a believer that information wants to be free. I am however realistic enough to know that information wants at least to be available, at some generally reasonable price. Right now, our copyright laws are a hodgepodge of political compromises and outdated principles, all changing from country to country. In a global world, they are structured territory by territory. In a society based on instant access and immediate gratification, they are restrictive and reliant on step by step negotiations with half a dozen different parties for a single use. They can’t survive like this.

Unfortunately, there are no attractive solutions. Clearly, any reform needs to be done on a global level. The web is worldwide after all. That should be easy. We can take it up right after we solve the problem of world hunger and get everyone to agree on global warming.

Even worse, the only viable answer to the internet-related problems seems to lie in some kind of system of blanket licensing, similar to that used by the performing rights organizations to collect on music being used in public venues. In some form or another, a tax or surcharge would need to be assessed on electronic equipment or computer technology, or directly on internet service providers, mobile phone networks and other “distributors”. The money collected would then be shared among the entire creative community, from publishers and labels to artists, writers and union members.

If that seems like a simple and clean resolution, it’s not. The problem is that all of the money would go into a fund, and then be distributed to the copyright holders without any clear way of attributing it to a specific use. Worse, the ability of each individual copyright holder to negotiate fees on his or her own behalf and to collect them would be lost– thus eliminating two of the major functions of a music publisher in one fell swoop. In essence, such a move would make much of the music publishing role obsolete. If only for reasons of self-interest, it’s not a proposal I relish.

The only thing worse is the alternative, which is what’s happening now. We are already becoming obsolete, simply because people are ignoring us. Sure, we can still make things grind to a halt with a major lawsuit here or there, or exact our revenge with a jumbo copyright-infringement settlement–after about ten years in court, fighting appeal after appeal. But the judges are getting less sympathetic, the law is seeming less and less just to society at large, and the internet generation is moving ahead without us. Most importantly, we’re leaving stacks of money on the table every day, by not being able to take advantage of licensing opportunities for our music. There’s no value in owning copyrights if no one has the time, patience or money to license them. Already, more and more creators are simply making new product which they own in its entirety, and licensing it directly to individual services.

There was an article in the New York Times today, about an inmate who after having been wrongfully imprisoned on death row for twenty years had just been set free. His one request to a benefactor had been a Walkman, only to be informed that no one used them any more, and handed an iPod. As the surprised ex-con acknowledged, it’s painful sometimes, but things change. You have to move on.

Otherwise, you’re an artifact in a museum window.

I know it’s summer and everything, but let’s face it– I’m a New Yorker. I’m not much for gardening or working in the yard. Nevertheless, I recently found myself battling the forces of nature in preparation for an upcoming outdoor barbecue, trying to singlehandedly turn an overgrown, out of control patch of jungle into own of those tame, manicured, Hampton-like lawns. With all the sweating and cursing, the endless labor and the distinct lack of progress, it felt about like a day in the music business, during what has to be the deadest, most uninspired period I’ve ever seen during 25 years in this industry.

In a summer that has seen continued dismal record sales, falling publishing incomes, the crash of the touring business, and worst of all, the tragedy at Love Parade in Germany, the whole music biz seems stuck in the kind of dreary, gray blanket of stale air that has hung over NYC for most of the summer. It’s hot, uncomfortable and nothing’s moving.

Even Billboard seems to be struggling to come up with anything to fill the pages. Last week they ran an article about a consortium of European banks who are partnering with Universal Music, to offer a discount subscription for music downloads with the opening of every new bank account or charge card. Out of 200 participating banks in Germany, 6,000 people have signed up. That’s 30 people per bank. Jeez. 30 people? And they wrote an article about it? Must’ve been a slow news day.

Staring out at a wild, unruly, tangled mess of a field, it’s not easy to leave the lawn chair and get out the weed-whacker, but we’re quickly nearing the point of no return. It’s August, and the fourth quarter is about to kick in. Somehow, the industry has to find a way to start at least laying the groundwork for better times ahead. Undeniably, it’s been a bad year in the fields. Still, we have to start doing the obvious work to get something growing again:

Step One: Take Control

Nature abhors a void. Even when it looks like nothing is happening, something is going on. Right now, even as the music industry stands still, other more dynamic businesses, from social networking companies to Apple to mobile networks to investment companies are expanding their influence, grabbing our audience, choking off some of our own opportunities and redefining the entertainment landscape on their terms, not ours.

It’s incredible that even after losing control of the music industry to MTV way back in the 1980s, then losing it again to illegal file-sharing in the first part of this decade, and yet again to Apple and iTunes in the second half of the decade, the record companies and music publishing companies have still not offered up anything to even attempt to control the playing field in their own industry. Streaming didn’t originate with record labels or publishers. Neither did the iPad or YouTube. Given the extent to which they’ve benefited from it, why did a music publisher not come up with a TV-show like “Glee” years ago?

If we don’t want to think beyond making music, then we can rest assured that someone else will. Then they, not us, will decide how our product is marketed, distributed, and sold, as well as what price it will sell for.
Don’t believe it? Notice how 80 years later we’re still going hat in hand to the radio industry, begging them to play our records (and in the case of the record industry, wishing they would actually pay us something to do it). Why does every new initiative in the music business seem to revolve around piggy-backing on someone else’s innovation, like making a channel on YouTube or taking an ownership share in Spotify? If you don’t control your turf, someone controls it for you.

Step Two: Clear out the dead.

You can’t hope for much new growth until you get out the wheelbarrow and start cleaning up the mess. This is actually one huge advantage for new, small companies entering the business. At least they’re starting fresh. The great burden being carried by all of the major music corporations is the fact that they have little choice but to manage the slow death of the CD, and the whole traditional business model that surrounds it. Everyone knows that it’s on it’s way out. If they could, they’d kill it off entirely. But the truth is that it’s still the primary source of income. No one can afford to abandon it. Consequently, too many resources go into keeping the dead man walking, while the infant survives on whatever is left.

For those who are still forming their overall business strategy, this is an opportunity to embrace a new model, free of the ties to the past that are strangling the industry’s major players. Take advantage of it. You don’t have to build your business around manufacturing CDs, or getting radio airplay, or trying to place songs on million-selling albums, or focusing on your own home territory simply because that’s what everyone has always done. Those old branches of the tree quit growing years ago. Anyone trying to hang onto them is going to be hearing a distinct cracking sound in the next five years.

Of course, abandoning the old ways of doing business means you’ll have to come up with new ones. That’s never easy. But it’s easier to create something new and alive if you’re not spending 80 percent of your time trying to resuscitate something dead.

Step Three: Look at what grows naturally.

None of us are completely in control of our own fate. Sometimes you decide what will grow in your garden, and other times, no matter how hard you try, the garden decides what will grow. We all have to adapt to our environment, and the faster we do it, the easier our life will be.

Part of the reason the music business continues to struggle is that it’s been determined to force results out of a market that simply doesn’t want what it’s offering. People don’t buy albums. Fine. Sell them something else. The audience is constantly shifting and losing interest. It’s frustrating, but it’s nature. Give them a constant stream of new songs, rather than ten new ones every two years.

In most cases, the marketing strategies that have worked recently, from mixtapes to YouTube videos to mashups to blogs, have grown up naturally out of their environment. Meanwhile, the field is littered with millions of marketing gimmicks, from “enhanced” CDs to special “fan club” subscriptions, that emanated from corporate planning sessions, only to dry up and wither when they ran into a skeptical and disinterested fanbase. If it’s not happening at a grass-roots level, then the grass won’t grow. Work with the forces of nature, not against them.

Step Four: Plant a seed.

A few years ago, I decided to plant some trees. Being the impatient city boy that I am, I decided the bigger the better. I bought trees that were already at least half grown, planted them, then looked around and admired my efforts. Within a few days, I had a garden that looked as if it had been growing for years. Within three months, I had a garden full of big, dead trees.

Later, an Englishman (and hence, a genetically gifted gardener) suggested that instead I should buy some tiny little saplings. The theory was that if they died, I’d hardly notice. At the same time, being very young, they were more likely to adapt to the soil and eventually start to grow. So far anyway, it seems to be working.

Much of the reason that the music industry has failed to discover new technologies on its own, or clear out the old failing business models, or even jump on trends that have taken root at street-level, is that the large corporations that dominate the field want things to be too big, too fast. Faced with the pressure of producing quarterly results, they can’t wait for a new idea to grow. Just as they can’t afford to nurture artists through a three or four album development, neither can they nurture new business strategies or marketing initiatives that could take years to pay off.

Again, those just now staking their claim to a tiny spot on the music business landscape have a real edge here. If you keep your overheads low and your expectations reasonable, you can afford to let nature take its course. Try your new idea in an inexpensive, low-risk way. Take a deep breath or two. If it doesn’t take, it’s no great loss. But if you see it growing, you can patiently nurture it along, until it suddenly has a life of its own.

Last weekend at the barbecue, I spoke with a friend in the garment business, who has a clothing company in New York. He explained to me that even fifteen years ago, there were dozens of manufacturers, tailoring shops, pattern-makers and fabric factories throughout the country who created garments for a wide variety of clothing lines. Today, there are virtually none. Trade policies, wage pressures from developing countries, outdated union rules, organized crime, and short-sighted management policies combined to essentially eliminate the industry. We’re not talking about a tough business cycle. The dress-makers, weavers, tailors and other specialists have left the country or found other work. The machines have been sold off. It’s not coming back.

Industries do die. It’s not enough to reassure ourselves that “music will always exist”. Sure. But will the music industry? It didn’t exist much before the 1900s. It doesn’t have any guarantees for the future. Another six months has come and gone, and nothing is happening. Sooner, rather than later, we better get out the shovel and start digging our way out of this mess.

Just recently returned from a trip to California– the usual business schmooze in LA, a couple of days in Santa Monica, a venture up to Malibu and Topenga Canyon– and as always, I had to wonder why I battle the New York winters when the sun is always shining in the other music capital, and you get cultural advantages like better Mexican food and surfing. It’s a beautiful state, and seems like a pretty chill place to live.

However, political junkies will tell you that it is a state in total political meltdown (not that New York is much better), and not surprisingly, even the laid-back Californians are now starting to work up a little rage. So it’s only appropriate that the king of California rock, Don Henley, should find himself embroiled in a political battle, which actually has some interesting publishing issues at the heart of the matter.

http://www.variety.com/article/VR1118018548.html?categoryid=16&cs=1

It seems that a right-wing candidate for the California Senate seat, Republican Chuck DeVore, borrowed two classic Don Henley songs, “Boys of Summer” and “All She Wants To Do Is Dance”, altered some of the lyrics himself and had his campaign strategist re-record some of the vocals to make attack spots on his opposing candidates– he then put the ads up on the internet. I’m not sure which part of this is actually the most egregious: the fact that a politician is now thinking he can write song lyrics, that he thinks he is a comedian, or that he considers his campaign strategist qualified to replace vocals by Don Henley. First there’s an action hero that wants to be governor, now there’s a politician who thinks he’s a co-writer with the guy who wrote “Hotel California”.

Of course, none of those concerns are the primary ones for Don Henley, who has a reputation for a healthy temper, an unwillingness to suffer fools, and a staunchly liberal political point of view. Henley and his co-writers, Mike Campbell (“Boys of Summer”) and Danny Kortchmar (“All She Wants To Do Is Dance”) reacted quickly and have already sued DeVore for copyright infringement in the US District Court, on the basis that the new versions implied that they were supporting DeVore’s candidacy, a prospect that Henley probably found more upsetting than a Deadhead sticker on a Cadillac.

Those that follow this blog (I KNOW YOU’RE OUT THERE) will recall a similar situation around the McCain-Obama campaign, which I discussed in “Weapon of Choice” back in the politically-charged days of November 2008. The blog mentioned a number of song uses, including “Barracuda” (for Sarah Palin) and “Running On Empty”, which the McCain campaign (in one of the wackier campaign strategies ever devised) tried to use to ridicule Obama. Both of those uses were immediately attacked by the songwriters, who made clear that they had no interest in their songs being used for a candidate whom they did not support. While campaigns usually escape from such situations with little more than a pledge to cease and desist, the rumor is that Jackson Browne, a very politically active Democratic supporter, actually pursued the case and walked away with a six-figure settlement from the Republican Party.

So the Don Henley-DeVore case would seem to be something of a no-brainer, based on the precedent set by such a similar battle with Browne and McCain. But interestingly, in part because of the lyric re-writes, this fight actually could be considerably more substantial, as it raises the question of “fair use” for parodies, one of the trickier areas of copyright protection. In fact, much of the case comes down to whether the DeVore’s re-writes are “parodies” or “satire”, which under the law, are two different things.

Since the one thing that both liberals and conservatives seem to be able to agree on is the value of “free speech”, the copyright laws do provide for the “fair use” (that is, without the author’s permission) of well-known songs in parodies, which is defined as something that “at least in part, comments on the original author’s works”. On the other hand, the rights to “fair use” are diminished when the song is used as “satire”, which is when the use “has no critical bearing on the substance or style of the original composition”.

In other words, if the DeVore version of “Boys of Summer” pokes fun at Don Henley, the song itself, or the style of the songwriters involved, then it’s a “parody”. And if it’s “parody”, then it falls into the category of those things that you hear on the morning radio shows. However, if “All She Wants To Do Is Tax” is solely an effort to discredit a political opponent, and doesn’t actually comment on the original song or artist at all, then it’s “satire”. In that case, DeVore likely would need the permission of Henley, the co-writers, and their publishers in order to use the song.

Obviously, this is a pretty tough distinction to make, and in fact, even many of the “morning show” spoofs would probably fall more in the territory of satire than parody. But most songwriters and artists don’t care much about those uses, as they don’t imply the “endorsement” of someone antithetical to their own values. In the cases where the “parodies” are in truly bad taste (in the judgment of the original writers and publishers), there is some ability for publishers to argue that “fair use” does not apply in an instance where the parody is doing serious damage to the long-term value of the original copyright.

As you would expect, DeVore is arguing that he is indeed making fun of Henley, and his left-wing political leanings, by deciding to use his well-known hits for the political ad. He points out that there are millions of other songs and artists that he could have chosen for the “parody”, but that part of the humor is based on the use of songs by such a well-known supporter of Democratic candidates. Henley apparently doesn’t get the joke. As far as he’s concerned, DeVore has used the music to solicit campaign donations online, a use for which Henley assesses an approximate value of $1.2 million dollars (in endorsement and licensing fees).

Indeed, the first thing that occurred to me was that there is more than just the issue of “parody” versus “satire” here. There is also an unlicensed synchronization use. When he created a visual advertisement and put music to it, any music, DeVore was required to obtain a synchronization license, just as any advertiser would need. The “fair use” principle does not exempt the need for a proper license when it comes to putting music with a moving picture. Nor does the fact that the ad appeared only on the Web make it any less necessary to obtain the permission of the publishers involved. In fact, that kind of unauthorized use in venues like YouTube is one of the fundamental copyright violations that all of the major publishers and labels, not to mention film studios and everyone else involved in the entertainment world, have been fighting against. Given the importance of show business to the California economy, it’s not a great look for the aspiring senator to be using unlicensed material in his web-based advertising efforts.

Perhaps that’s the most important point. The scariest part of this seemingly endless effort by politicians to use music for their own political ends is that it points out, again and again, that the political community has very little understanding of the principles of music licensing and copyright protection, and not much good taste either. It’s no wonder we can’t make any headway on legislative issues related to file-sharing or performance royalties for artists, when a candidate for president can’t figure out that using “Running On Empty” without permission is a bad idea. Or when an aspiring senator, from the capital of the entertainment business, doesn’t recognize that re-writing Don Henley lyrics, even if you were a real songwriter, is somewhere on the level of painting a mustache on the Mona Lisa.

The case goes to court for hearing on June 1st, but the judge may or may not make a decision at that time. Needless to say, the challenge of distinguishing between “parody” and “satire” makes this a more complex issue than one might think. Neither Henley nor DeVore may get the quick decision for which they’re hoping. If the case winds up dragging on beyond next month, it’s worth noting that DeVore will already be costing California taxpayers money, and he hasn’t even been elected to office yet. Meanwhile, as Don himself said, “the lawyers dwell on small details”… Not sure if that’s parody, satire, or just plain old irony.

Alright– I promise. This is the last YouTube diatribe at least until the end of the summer. But since the most recent call to arms on this blog, I actually wound up doing a NPR radio interview for a story about the growing influence of YouTube in the music biz. The prospect of being on the firing line prompted me to do a bit more homework about the licensing battles involving YouTube at the moment– and the more I read, the more angry I’ve become. So now, I’m really fired up.

Yes, I know that YouTube provides a very valuable service to unknown and developing artists in helping to expose them to a wider audience. I know that YouTube can be a useful A&R service, helping to draw label and publisher attention to particularly reactive songs or artists. But for active or aspiring songwriters and music publishers, I think it’s worthwhile to understand how YouTube has approached rate negotiations with publishers, record labels, and copyright owners. It certainly presents a pretty clear picture of the level of seriousness they are bringing to the negotiating process and to complying with copyright law. It also makes very clear the actual monetary value they attach to music.

In a nutshell, here’s the situation:

With the record labels, YouTube is currently in negotiations to renew licenses made several years ago. While the labels thus far have fared better than anyone else with YouTube, the actual income generated under these early license agreements is negligible. YouTube income has certainly not done much to break the free-fall in which labels now find themselves, nor has it softened the blow to the artists, most of whom are still wondering when that elusive YouTube income is going to show up on their accounting statement.

But on the publishing side, it’s even uglier. For the performing rights organizations, led by ASCAP, the last three years of negotiation have proven extremely disillusioning. Back in 2005, YouTube agreed to make performance payments, based on an understanding between ASCAP and YouTube that both parties would eventually settle on a reasonable rate. Unfortunately, it’s easier to agree to agree than to actually agree. After years of negotiations, YouTube and ASCAP have failed to reach an agreement upon a reasonable rate, and YouTube has paid nothing to the PROs while that fruitless negotiating was going on. If you want to know why those talks fell apart, here’s one clue:

Just last week, a judge from the US District Court ordered YouTube to pay 1.4 million dollars for the unlicensed use of ASCAP’s material from 2005-2008. Then, the judge ordered YouTube to pay $70,000 a month, beginning in January of 2009. To put that in proper perspective, consider that Imagem Music recently purchased the Rodgers and Hammerstein song catalog for somewhere around $20 million dollars. So while the purchase of one song catalog from one writing team (granted a pretty good one) will set you back $20 million, the judge is granting YouTube unlimited access to HALF OF THE ENTIRE SONG CATALOG IN AMERICA FROM THE LAST 100 YEARS for $1.4 million dollars. Even the judge acknowledged the measly nature of the sum, saying:

“Even considering that the fees paid to ASCAP will represent only about one-half of the total fees that YouTube pays to music performing rights, the contemplated interim fees are clearly reasonable, even conservative, in comparison to those called for in other licenses for the performance of copyrighted content on the Internet,” Judge Connor said.

Well, he got that right. $1.4 million dollars is scraping the bottom of the barrel, given the extent of unauthorized use of copywritten material over the past four years. But get this– YouTube thinks even $1.4 million its too much! How much would it like to pay for access to the entire ASCAP catalog, which includes thousands of classic songs from every era in modern music history? Uh, maybe about $80,000?

Huh? Did someone forget a zero or two on that number? No. YouTube has proposed that they will pay $80,000 to cover the last three years, and then about the same amount annually in 2009 and beyond. That’s a pretty sweet deal. It’s also a pretty revealing one, in case you’re wondering what YouTube and Google think copyrighted music should be valued at. Basically, less than the annual salary of one mid-level executive in their office.

Of course, YouTube and Google claim that since YouTube has proven woefully unsuccessful at actually making any money, they shouldn’t be saddled with the hindrance of having to pay fees for use of the material that is at the core of at least fifty percent of their most popular programming. The flaw here is that YouTube was never actually designed to make any money.

Like many internet businesses, the strategy from its conception seems to have been to create a site that was immensely popular rather than income-generating. Of course, this was done with the knowledge that such a popular destination could then be flipped for a massive financial payout to its creators, despite the fact that there were no actual earnings. Not surprisingly, this is exactly what happened when Google purchased YouTube for $1.65 billion. How convenient for the creators that they didn’t have to share any of that $1.65 billion with the people that created the material upon which their “network” is based. They probably would have sent over a check for 80 grand.

When one considers the financial burden of paying ASCAP royalties upon a company like YouTube, it’s worth remembering that YouTube is basically an entertainment network that creates absolutely nothing of its own. Every minute of its programming is made up of things either donated or stolen. YouTube is a TV station that doesn’t even own a camera. Given that they have virtually no overhead, it doesn’t seem unreasonable that payments for rights to the material they use should cost them at least half of what they actually bring in, maybe more.

During the interview with NPR, I was asked about the promotional service that YouTube provides to the music industry. Surely, the exposure that it offers artists at all different levels has to acknowledged. In fact, in this blog, I’ve suggested on several occasions that the smartest career strategy for a new, unknown artist would be to create one great song, do a truly inventive, provocative, funny, attention-grabbing video and post it on YouTube, then see how the audience reacts. As a means of being “discovered”, there aren’t many better, or more accessible forums.

But for established artists, record labels, and publishers, the “promotional” value of YouTube is starting to look rather dubious. Promotion for what? To help artists sell albums? That’s clearly not working. Check the album sales of the music industry as a whole since 2005. Whatever promotional service YouTube is providing, it’s not very effective.

Suppose you owned a butcher store and a man set up a table in front of your shop, handing out free hamburgers. You might complain— but then he would explain that really he was providing a promotional service for your butcher shop, showing people just how tasty a well-cooked piece of beef could be. What seemed to be direct competition for your shop would prove to be a boon to your business. Great.

But what if your butcher business then proceeded to crash and burn, as your customers took the free hamburgers, ate them for dinner and never came into your store again. How long would you wait until you tried to get rid of the less than helpful “promoter” outside your store?

As I’ve said before, the day of reckoning may have arrived. Warner has taken a bold, if marginally effective step, by pulling product off of YouTube. ASCAP continues to fight the good fight. On the other hand, Universal has immediately abandoned the protection of its writers and artists, and hopped into bed with YouTube, trying to put the rest of the industry at a disadvantage. And here’s another less than encouraging story from the front-lines of the battle:

PRS, the licensing organization for publishers and songwriters in the UK, has been in its own rate dispute with YouTube, running into the same negotiating brick wall that ASCAP, NMPA and others have encountered. In a move that took the industry somewhat by surprise, YouTube recently countered PRS’s tough negotiating stance by pulling off all PRS-licensed, premium music videos supplied by the labels in the UK.

It now appears that PRS has come back to the negotiating table with a new offer. Rather than insisting on the previous royalty rate of .22p per track, they have put forward a new compromise. The new per track price?

0.0085p

Yep. From 22 pence to less than a penny. There’s not much you can buy for less than a penny anymore– here or in London. Apparently, a song is one of them. For songwriters and publishers, what you can see on YouTube tonight is your career slipping away…