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Archive for the ‘Music Row News’ Category

According to news reports that broke first on Fox yesterday, then appeared on CMT and Billboard, Kristi Lee Cook, who took seventh place in this year’s seventh season of American Idol, signed a recording agreement with 19 Recordings/Arista Nashville, a Sony BMG label.  This is Kristi’s second attempt at success on the Arista Nashville brand, as she had a prior deal with the label signed in 1999 at the age of seventeen.  She was dropped from the label before producing any product, despite a commitment from Brittany Spears to appear with her in her first video.

The lawyer in me wonders whether this is actually a new deal, or whether Arista Nashville simply called in its rights under the prior agreement, as most recording contracts are not based on a strict term of years, but rather a length of term that involves delivery requirement.

Arista Nashville is, of course, home to two other American Idol favorites, Kellie Pickler and superstar Carrie Underwood.  In fact, Cook’s new master will be produced by the co-writer of Carrie’s smash, Jesus Take the Wheel, none other than longtime Nashville songwriter Brett James.

The first song out of the gate, 15 Minutes of Shame, will hit the airwaves on August 11.  The entire album is expected to be on store shelves in the fall.

Past American Idol contestants seem to fair well in the country music  arena, as witnessed by not only the successful careers of the aforementioned Underwood and Pickler, but in top selling product from rocker turned country rock, Bo Bice, Bucky Covington and Josh Gracin, whose albums have topped Billboard’s country charts.

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There is a great deal of talk these days about the concept of “freeconomics,” spurned by the fact that most teenagers and college students are still ripping music and sharing it online.  Most recently, the major record labels commissioned a study from two think tanks, The Leading Question and Music Ally, which resulted in a five recommendations for the music industry, including “bundling” of product.  Another of the points was “Free doesn’t mean no money.”  How original.  And oh, by the way, IT DOES ACTUALLY MEAN THAT!  You can read the full article about the study here.

Dollar Bill Let me start out by observing an old adage, which still holds true in life, that you tend to “get what you pay for.”  I’ve always believed in that adage.  There is generally a direct correlation in the amount of sawbucks you shell out to the quality of the product you receive.   When I cook, for example, I use the freshest ingredients.  I spare little expense.  Sure, I try to find bargains, but if you skimp on the quality of your ingredients, you always skimp on taste.  I have always resisted the impulse to buy meat on clearance!

What about “free” goods?  Just think about how many junk e-mails you receive every day offering you a “free” iPhone, or a “free” laptop, or a free whatever. . . the list goes on and on.  Don’t you automatically just delete those?  Of course you do — because everyone knows these types of things are given out for free:  first, someone is actually paying for those goods; secondly, you have to subscribe to a certain number of paying offers in order to actually receive the “free” iPhone or laptop.  There is another adage:  nothing is life is free.   Fact of the matter is, if I wanted an iPhone, I’d go out and buy it.

Now, let’s turn our attention to “freeconomics” and honestly call it what it really is:  freakenomics!  Again, nothing in life is free. 

Nonetheless, we are lead by these researchers to examine Google and its model of giving out free software as an example of how the music industry can give away music and still achieve a profit.  This analogy is wrong on so many levels, but I’ll just point out one basic incongruity:  the software developers that are writing software for Google work for the conglomerate under a work for hire agreement – Google does not have to compensate multiple rights owners.  It owns the entire product. 

This is not so with a musical composition/sound recording combination.  That is bundle that is not so readily united.  The record label generally owns the sound recording of a musical composition, but does not always own the underlying music compositions.  There may be multiple owners of the underlying compositions which have to be compensated – multiple songwriters and multiple publishers.  The producer also must be compensated.  The musicians who play on the record have to be compensated, not to mention their union fees and retirement fund.  The engineers who work on the project are compensated. The artist has to be compensated for their performance.  The people who master the product must be compensated. 

What the simplistic – dare I say naive – five point plan laid out by the record “think tank” overlooks is that in order to accomplish the equivalent of something like a Google in the music industry, one has to completely rewrite the industry.  While this is not a new idea, it is also not an idea that can be accomplished in today’s copyright structure nor within the current orientation of the music industry.  Hundreds of years of practice have to be completed abolished for the Google model to work in the music industry.

Let’s look an entity that has actually tried to make such a paradigm shift:  MySpace.  It is most definitely the place where independent artists go to get their music heard.  The music is generally free.  How many artists have you listened to on MySpace in the last month?  I’m in the industry, and I have listened to maybe two, but only because I received a specific request to do so. 

How many artists on MySpace actually make a lucrative living doing what they are doing there?  Again, the music is free isn’t it?  Freecomonics will get us something akin to the quality of music that you find on MySpace in general.  There is no realistic way to sift the wheat from the chaff. 

The instant you stop rewarding the songwriters and artists that create the music — removing a real incentive for creating their art full time — the sooner you’ll find a void in the really high quality music.  Yes, there are some who say that artists will produce art regardless of whether they receive compensation, because that is what they do.  However, this is not historically accurate in music or any of the arts.  If you find an artist who is thriving, you will generally find a source of money, whether it be selling the artwork to a famous benefactor or having financial muscle behind him or her. 

In music, the major labels have historically been the finders and funders of the talent.  They spend a lot of money discovering, developing and marketing the talent.  For the most part, it is the major label product that gets traded on the P2P networks.  That is one factor that is often overlooked.  What the general public wants to hear, and shares on P2P, is generally the music that is marketed heavily – generally by the major labels.  That will not change until someone constructs a better way to get music heard by the public in general. 

So, I believe if you remove the economic component of music, you will ultimately eliminate the talent altogether.  Otherwise, the talented will have to get day jobs to support their art and the art will most certainly diminish and/or suffer.

Let’s turn to some of the other suggestions made by The Leading Question and Music Ally:

(1)  Music needs to be bundled with other products and entertainment packages.  They conclude that “music needs to move away from per unit sales and become more of a service than a product.”  Can we say YAWN class?  The record labels cannot break themselves of the idea that people want a package deal.  We don’t.  We want ala carte!  The sooner that the industry comes to this realization, the better off they will be.  Isn’t this what the labels have been feeding us for years?  This is but the “record album” in another iteration.  Buy this collection of 10 songs, 2 of which are what you actually want and 8 of which bite!  Come on guys, hasn’t the digital revolution taught you anything?  Wake up and smell the single downloads.  That IS what the consumer wants.  Build a model that incorporates the single download.  Don’t build a model that ignores it.

(2)  Labels needs to experiment with new release schedules and formats.  Seriously?  Again, the think tanks suggest that “single . . . releases have run [their] course.”  Ditto what I said above.  Check out the success of iTunes, emusic, Amazon, etc. etc.  Check out what happens on P2P networks when a new digital single is released.  The single is NOT a thing of the past.  Now, granted, I agree that digital only releases and new pricing models are going to be part of the new model — couldn’t any fourth graders could tell you that?  But again, people want their music ala carte.  They want good music.  They don’t want the bundles, the fillers, the parasitical crap that the industry wants to latch onto what they really want.

(3)  Change the charts.  Yes, people actually get paid to say this stuff!  The conclusion is that the charts don’t make sense anymore because fewer people are buying music.  In fairness, I understand this one to some degree. But, has anyone noticed that Billboard already tracks digital downloads?  Has anyone noticed any of the other p2p tracking devices, such as Big Champagne, just to name one.  Sure they have and so have the major labels.  In fact, that is in part where many of the researchers get their data.  No doubt, the tracking of general overall consumption should be an important factor in consideration.  While we are at it, why not pay more attention to the portion of the market called baby boomers.  The older generation that buys music, but rarely gets consulted when discussing these issues.

(4)  Trust the DJ.  Next to the CD format, the other big thing the record industry has a hard time letting go of is the radio format.  The record industry likes to control the advise given about music so that they control what the listener “wants” to hear.  The think tanks concludes that “the instant and massive availability of music on demand means you need a trusted guide like John Peel more than ever.”  I disagree with this conclusion because I believe that this “advisor model” is antiquated.   These days, most people rely more on social networking – either virtual or real — and trending algorythms to determine what music they enjoy.  I don’t know of any teenager that listens to terrestrial radio any more.  For them, a DJ is someone at a wedding reception and they are not likely to take advise from that person. 

Yet, the file sharing continues and, more importantly, so does the need for change.  Now that I have ranted a little about the suggestions made by these industry think tanks, let me say that I do, in fact, appreciate their efforts to come up with solutions to the declining music industry.  I wholly agree with what the managing director of Music Ally, Paul Brindley says in the article, that the

“business models need to change radically if the music business is to stand any chance of halting the current decline in sales.”  Without a doubt, something truly has to be done or the industry will fail.

As I heard one venture capitalist put it, for him to consider an investment in the music industry, it must be a paradigm shifting, industry changing business model.  These suggestions by The Leading Question and Music Ally just don’t quite rise to that level, in my humble opinion.  In my opinion, the ultimate solution will be a fair priced – but not free – digital download model.  The most important component that is missing thus far, and that is critical, is a means of getting the music heard by the general population.  We have many services which may be close, but as of yet, we are not quite there.

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Music Row magazine has been “Nashville’s Music Industry Publication” for 26 years.  Yesterday, Music Row announced that it was being acquired by SouthComm Communications, Inc. 

SouthComm is a Nashville-based media company founded Music Rowin 2007 by Chris Ferrell and Nashville investment firm Solidus Co., led by Townes Duncan.  Duncan is chairman of SouthComm and Ferrell is CEO.  Their first acquisition was SouthComm Publishing Company, Inc. of Alphraetta, Georgia.

Ferrell was formerly a council person in Nashville and publishers of The Scene, an alternative weekly publication owned by New Times Media of New York.

SouthComm is a custom publishing company focusing on local and niche news, information markets, membership directories and city publications. Music Row joins SouthComm’s current stable of publications, which includes the print and digital publications Nashville Post and Business Tennessee.

“I’m a believer in niche publications. My belief about the future of print is that it needs to be very targeted.”

Ferrell said in an article for Nashville Business Journal in January of this year.

“The SouthComm collaboration is a great fit,” says David Ross, current publishers of Music Row magazine.  He will remain CEO of the industry publication, but will given the position of Vice President for SouthComm and a seat on the Board of Directors.

“Joining a larger organization means Music Row [magazine] will benefit with added resources, efficiencies of scale and cross marketing opportunities. SouthComm also provides added conduits for music industry news to reach a wider network of Nashville business leaders and bolster the process of uniting Nashville’s music and business communities.”

Music Row‘s current staff will remain intact, including Ross’ wife and partner Susana and Robert K. Oermann, who has appeared in MusicRow for most of its existence.

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Nashville Mayor Karl Dean issued a proclamation declaring the week of March 3, 2008 “Country Radio Week.”  The mayor will present the official proclamation to Country Radio Broadcasters, Inc.’s Executive Director Ed Salamon and President Becky Brenner when he officially welcomes attendees to the 39th Country Radio Seminar (CRS-39) on March 5th.

The mayoral proclamation recognizes that “Country radio promotes Nashville tourism daily by broadcasting information about [Nashville] and its attractions. Country radio is the primary medium for exposure of Country music, an endeavor that CRS39employs many Nashvillians as artists, writers and producers. “

The 39th Country Radio Seminar takes place from March 5th through the 7th at the Nashville Convention Center.

Ed Salamon, Executive Director of the CRB stated, “We are gratified that Mayor Karl Dean recognizes the considerable economic impact that country radio has on Nashville and Davidson County and has given radio its own week”

This honor reinforces the reputation of the Country Radio Seminar  as the premier forum for education and information for members of the country music industry. Along with continuing education panels for industry professionals, the 39th Annual Country Radio Seminar agenda includes research presentations, artist showcases and discussion forums. Issues that impact country radio sales and programming, as well as the record industry in general, will be covered during the three-day event.

Agenda and registration details are available at www.crb.org or by calling the CRB office at 615-327-4487.

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This blog series will explore music publishing, giving a little bit of history and outlining the basic steps necessary to form a music  publishing company.  Part 1 looks at a brief history and background of music publishing.

Modern music publishing in the United States can trace its roots to “Tin Pan Alley,” the name given to a grou116962_come_play_my_songp of sheet music publishers who collected on West 28th Street in New York City in the late 19th, early 20th Century, when names like Irvin Berlin and John Philip Sousa were the leading composers.  This coincides roughly with the invention of introduction of Thomas Edison’s Gramophone and the phonograph cylinder.    Tin Pan Alley publishers were concerned mainly with selling sheet music and piano rolls.  The most dramatic shift in popularity from printed music to recorded music did not occur until the development of the “talkie,” when The Jazz Singer was released in 1927.

In 1914, ASCAP was formed to protect the copyrighted music compositions of its members.  The organization expanded with the introduction of the new invention called radio in the 1920’s.  Because owners of radio stations did not like paying what they considered exorbitant license fees to ASCAP for the performances of musical compositions, the broadcasters formed their own organization, BMI (Broadcast Musicians Inc.) in an effort to drive the license fees down.

Modern music publishers are in the business of engaging composers, i.e., songwriters, and obtaining ownership of their copyrights.   In exchange for the copyright, the music publisher agrees to exploit the composition to potential licensees (a process generally referred to as “song plugging”), administer the copyright, collect the mechanical royalties and license fees, and distribute a portion of the collected monies to the composer.

Most music publishers will offer promising composers what is called an “exclusive songwriter agreement” in which the composer is obligated to provide the publisher with a minimum number of commercial musical compositions within a certain period.  The composer generally receives a “salary,” which is fully recoupable from future royalties.   Again, the publisher gives up the copyright in the musical composition in this type of deal. 

Another, less common deal type, which is reserved for songwriters who have some clout in the industry, is called a “co-publishing deal”   This arrangement is usually very similar to the exclusive songwriting arrangement discussed above, except that the songwriter only gives up half of the copyright in the musical composition and retains the remaining half. 

Less often, music publishers offer “single song agreements” to composers who may have one or two compositions that interest the publisher, but not enough that it feels warrants a longer term commitment.  Most major publishing houses do not offer these type of agreements.  They are generally the purview of independent and upstart music publishers.

There are myriad gradations of these deals, and the terms in any one agreement can be as varied as an artist’s palette of colors, so if you are interested in music publishing agreements, please contact a reputable music attorney prior to obligating yourself or giving up a copyright.

Tomorrow’s installment of Music Publishing 101 will discuss the basics of forming a music publishing company.

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Amy Kurland’s Blue Bird Cafe on Hillsboro Road in Nashville is the kind of stuff of which fairy tales are made.  Now, Kurland has left the legacy in the hands of Nashville’s best songwriting organization, NSAI (Nashville Songwriters Association International) — a fitting end a dynasty.

The legend of Blue Bird Cafe, which first opened iBlue Birdn 1982,  is widespread. Among others, Garth Brooks and Kathy Mattea both got their record deals after playing at the Bluebird.  It was prominently featured in River Phoenix’s last film, The Thing Called Love, and it also has been featured on television so often it is difficult to enumerate.  It has been the subject of books, both fiction and non-fiction.  Ask any songwriter in Nashville — and for that matter in most parts of the country if not the world — what venue they’d most like to play at, and the most likely answer is the Bluebird.

Although the terms of the deal are confidential, the basic deal points are that Kurland will continue to own the real estate and lease it to NSAI, and NSAI purchased the business at a price rumored to be in the low six figures.

“I couldn’t think of anybody else other than [NSAI] that would have the same mission, the same love in their heart for songwriters,” Kurland told the Associated Press.

The official announcement of the transfer was made before a performance by Kris Kristofferson.  The transition takes place January 1.

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Songwriter1

See Jane. 

See Jane write lyrics. 

See Dick. 

See Dick write melodies.  

See Dick meet Jane.

See Dick and Jane combine their efforts and collaborate together to write a song. 

This is one frequent story among Nashville’s songwriting community.  On any given afternoon in Nashville, there will be innumerable co-writing sessions occurring at any given moment.  Those collaborative efforts certainly produce most of the top hits on the country charts.  The odds are, however, that at least 9 out of 10 of those songwriters will not know the implications of collaborating with another songwriter on the creation of a copyright. 

Rarely do songwriters consult an attorney or enter into any form of collaboration agreement prior to co-writing.  Rarer still is the songwriter that fully understands the important consequences that flow from co-writing with another songwriter. 

If a songwriter does happen to consult about this issue, the first thing I tell them is that it is very much like entering into a marriage relationship.  When two songwriters get together and collaborate on the creation of musical composition, each songwriter is a co-owner of and equal and undivided interest in the whole copyright, i.e. each songwriter co-owns 100% of the copyright – regardless of the relative extent of their respective contributions.   Ownership is not equally divided, as is commonly thought — i.e. split 50/50 (that confusion comes from the fact that the royalties derived from the copyright are usually divided equally). 

In the Dick and Jane analogy above, for example, Jane does not separately own the lyrics and Dick separately own the melodies.  Dick effectively owns 100% of the song, including both the lyrics and music and Jane effectively owns 100% of the song, including both the lyrics and the music.  The concept is very similar to the legal principle of tenancy in common.  Unless they agree to the contrary in writing, each songwriter has the right to administer the entire copyright without consulting with the other songwriter, i.e., each songwriter may issue nonexclusive licenses to the entire copyright or issue first use licenses.  The only obligation each co-owner has to the other is to account for any profits earned by the exploitation.  A co-owner may not, however, without the permission of the other co-owner, transfer exclusive rights to use the work or transfer the entire copyright to a third party.  

To be absolutely clear, the Copyright Act does not really define “joint authors,” but rather defines a “joint work” as a “work prepared by tow or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”  17 U.S.C. 101.   The key here is intention — i.e., the parties must intend that their work be integrated or merged to form a united whole at the time the work is created.  The legislative history that accompanied the act specifically states that a work is “joint” if the authors collaborated on its creation.  See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976); S. Rep. No. 473, 94th Cong., 1st Sess. 103-104 (1975).

Take for example the circumstance that arises when a person creates a poem, which is registered as a copyright.  Then, later on, a second person takes the poem and modifies the words, adding music to create a song.  The situation described is different from the collaborative effort in that there was no intent, at the time the poem was created, to merge it with the second creative effort.  The second work, the song, is a derivative work, and its writer needs permission from the creator of the poem to create the derivative work.

While we’re on the subject of derivative works, each co-owner of a joint work may create derivative works independently of each other and without the permission of the other, and, without any obligation to share the royalties derived from the exploitation of the derivative work.

Songwriters3 Now, not to further confuse the issue but, in the eyes of the law, there is a difference between co-ownership in the copyright and split of the royalties.  To get back to the Dick and Jane analysis, the typical understanding is that Dick and Jane would split any royalties received from the exploitation of the copyright on a 50/50 basis.  It is important to understand once again, however, that this understanding can be modified with a written agreement between the co-writers.  A songwriter whose reputation is strong enough can certainly request that he or she receive a greater percentage from the royalties, and even ask for a greater percentage ownership interest in the copyright.  These types of exceptions, however, must be expressed in writing between the parties in order to be enforceable. 

Another complication arises in circumstances where a party merely contributes an “idea” to the collaborative effort.  Is that person entitled to be a co-owner?   I’ve had this issue arise in litigation.  Two parties are collaborating on a song and have most of the song written.  In walks a friend who is also a songwriter.  He listens to the song and contributes an idea that is incorporated into one line of the song.  He leaves, the song is finished, and becomes a hit.  Does the third songwriter have an interest in the song?  The answer to the question is inevitably determined by the particular facts and hinges on whether the third party merely contributed an idea, or actually contributed the expression of an idea. 

As a final observation, let’s overlay the life of the copyright over the co-ownership of a collaborative work to give our brains a final flash fry if you will.  Assuming the work to have been created after January 1, 1976, the life of the copyright is life of the author plus 70 years.  In the event of a joint work, however, it is the life of the surviving author plus 70 years.    What this means in realty is that one of the co-writers in a successful hit song, i.e., the last man standing, will eventually become co-owners with the heirs of the deceased songwriter, either in the form of a wife or a child. 

Most songwriters, of course, are not thinking this far down the road when they make their daily co-writing appointments.  But that’s the real thrust of this article.  If you’re a songwriter, you should consider the possibility of a collaboration agreement.  Most songwriters, I admit, do not think about this sort of thing because it cramps the creative vibe that needs to be created in a collaborative effort.  This, in my opinion, is not a wise idea.  At the very least — and this is not my recommendation — the writers should have some conversation about the consequences of their efforts.  Considering the consequences, the best course of action would be to consult with qualified legal counsel and get a collaborative agreement drawn up and signed — or at least have a written statement of intent signed by both writers  — at some agreeable point before the co-writing session begins, so as not to interfere with the creative efforts. 

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