I was on a panel with some great music lawyers at ASCAP Expo on 4/30 in Los Angeles. We had a great room of songwriters and artists, and I told them I’d post my notes.
1. What makes someone a joint author?
The US Copyright Act defines joint authorship as a contribution by two or more authors with the intent that
their works be joined “as inseparable or interdependent parts of a unitary whole”, but courts have looked to objective evidence that the authors intended the contribution to be a collaboration and regarded themselves as joint authors, usually at or near the time of creation.
2. Songwriting Collaborations
A good way for songwriters to produce this evidence is to sign a collaboration agreement that, at a minimum, identifies the songwriters as joint authors and their splits. These can be very simple agreements.
If one songwriter is an artist-writer and the other songwriter is not part of the group or is not an artist, the artist-writer will have special issues with the collaborationagreement. A frequent scenario is that the artist-writer collaborates with a producer.
The artist will want to be sure that at a minimum, the producer agrees to be subject to the same mechanical license terms that apply to the artist under the artist’s recording agreement. This is also called the “controlled compositions clause” in the artist’s recording agreement.
The controlled compositions clause sets the maximum mechanical royalty that the record company will pay for the songs on the artist’s recordings. This right needs to be preserved if the artist is signed or anticipates being signed.
For independent artists or artists who anticipate a year or more of development before being shopped, another
big concern is the ability of the artist to approve licenses for 100% of the whole song.
3. Co-owner rights
At least in the US, joint owners of property have the right to grant non-exclusive licenses in 100% of the work subject to a duty to account (and potentially subject to a law suit for “waste”).
This is the theory that is reflected in controlled compositions clauses seeking to bind co-writers who are not parties to the agreement.
However, there is an argument that the “first use” of a song is not a non-exclusive license because the first use can only be granted once. Even under the US regime of compulsory licensing for songs, that compulsory license does not apply to the first use of a song.
It is a good idea to get an actual agreement to the controlled compositions terms among the co-writers because even though the record company will impose obligations on the artist-writer by contract, the artist-writer may not be able to impose
those obligations on the co-writer by law.
Even in the absence of a record deal, it is a good idea for artist-writers to avoid having to get the consent of non-artist co-writers for licenses of the artist’s recordings. Artists may wish to take advantage of opportunities to license at free
or near free pricing. They can find themselves blocked by producers or producer’s publishers who have their own agendas with the licensee that have nothing to do with the artist.
For example, we had an artist-writer who co-wrote with a writer signed to a major publisher who routinely denied uses for Channel One. Our artist was unable to participate in Channel One because the publisher had a “policy” and was trying to use its market power to force Channel One to pay royalties.
Both have a legitimate argument—however, it is the artist’s career and the artist’s song and the artist invited the co-writer to participate.
3. Sound Recordings: Remember that co-authorship is not limited to songs. It can apply to sound recordings or any work of copyright.
Here’s a sound recording example.
A producer developed an artist for a period of years and had a rudimentary written agreement that provided that the producer was to be paid a bonus if the artist was signed using the producer’s recordings. The band acknowledged that the producer was actively participating in the creation of the sound recordings and co-wrote the songs. The producer’s share of the songs was not disputed.
The band signed to a major record company (and actually became a multiplatinum artist). No one told the producer that the band was signed until he read it in Billboard. The band’s lawyer refused to pay the signing bonus. She was from New York.
The Texas producer attempted several times to be paid and was rebuffed. This was probably due to the sale of the masters to the record company when the lawyer failed to disclose the producer as a joint author. The record company would not deal with the producer and referred him to the artist’s lawyer who would not deal with him.
The producer found a lawyer who suggested it would be a good idea to send copies of the producer’s recordings to leading producer management companies. Particularly to one producer management company that also did artist
management and to which the artist was being presented by the record company.
This drew a letter from the artist’s lawyer that accused the lawyer—the lawyer—of copyright infringement for distributing copies of these jointly owned recordings. The letter was copied to the record company.
The producer’s lawyer responded with his own letter reminding the artist’s lawyer that the producer had the right as a joint author to distribute copies on a nonexclusive basis as one of the rights of a copyright owner of a sound recording.
Within minutes after sending that letter, the producer’s lawyer received a call from the label apologizing and wanting to know how to make this go away. The producer’s lawyer suggested a possible solution was the payment of money. That day.
The artist was then forced by its label to sign a release with the producer that included a withdrawal of the claim for copyright infringement against the producer’s lawyer “as though it had never been sent” and transferred all rights from the producer to the artist.
4. Direct Licenses
It is very common for websites and digital music retailers to seek a license from independent artists granting them direct rights that would normally be licensed through collectives, such as the performance right in both sound recordings and the songs and in some countries the videos.
Very often, this is on a royalty-free basis, and may also convey the rights to permit others to create derivative works. Sometimes this is specified as a non-commercial use, but “non-commercial” is not defined or is poorly defined. Often there is no limitation.
It is important to note that web properties are trying to add value through what is often called the “hybrid economy”. This means that users create value that is realized by the technology company providing the service, but the technology company pays nothing to the users when it is sold and that value is realized.
Flickr is one example, Google Books is another, YouTube is another. Large amounts of money changed hands but no money was paid to the users, many of whom were creators themselves. The latest example of this is the sale of the Huffington Post, and it is reported that a class action was filed by Jonathan Tasini against the Huffington Post seeking compensation for the bloggers who added value to the company that was realized on its sale. You may remember Jonathan Tasini from New York Times v. Tasini, the U.S. Supreme Court case on behalf of freelancers.
Imagine for a moment Ariana Huffington explaining to a jury why she should not have to share the AOL money
with the bloggers. If anyone is here from YouTube, you can just rattle your jewels.
When you grant a direct license to anyone, but particularly one of these hybrid economy, companies, you are essentially putting yourself in the exact position they want you—alone. The power of collective licensing is essentially the power of collective bargaining. Those who wish to unfairly exploit any one of us must take on all of us. The cost of licensing and defending rights is distributed across the members of the collective and those who would exploit us are forced to deal with larger bodies to enforce our rights.
Remember—The Man 2.0 is just a more sophisticated version of The Man 1.0. They still like their songwriters weak, poor and alone.
We’re huge Mike Lombardo fans here at MTP. This video is a very insightful talk about the creative process that I think every artists should listen to–and also watch.
Tipitina’s hosts the annual “Instruments A’ Comin'” program fundraiser in New Orleans. The program has raised money to provide new instruments to New Orleans school kids–for 10 years. Year in, year out, in good times and not so good times Instruments A’ Comin has raised over $2.2 million to purchase instruments for over 4,000 students in over 70 schools. And that’s a whole lotta jazz.
So this year, the folks at Instruments A’ Comin’ and Tipitinas Foundation heard there were some other cats who needed new instruments–the Swing Dolphins in Japan.
And they got them. I don’t know how you say “Instruments A’ Comin’!” in Japanese, but I think they know how to say it in jazz.
God bless the child that’s got his own, but the ghost of Satchmo helps the child that don’t.
If you’d like to donate, click here.
Rumors abound about Google Music, but at the moment it looks like they screwed up again. According to News.com and Billboard.biz, Google is talking to Spotify about powering the Google Music service. That would mean that any Google Music service would probably be a hybrid of an unlicensed “cloud” thumb in your eye service such as the one launched by tax cheat Amazon. A co-branded Google/Spotify service would—well, let’s see, probably put Spotify’s own U.S. service that has been years in the making in direct competition with a version of their service run by Google the Destroyer.
My bet is that Google is trying to do indirectly that which they could not do directly. More about that.
There is a tendency to mistake causality when considering the encounters of Google and Spotify with music licensing. The assumption is that there is something wrong with the licensing process that troubles both companies rather than looking at the facts and dynamics applicable to each in their very separate encounters. (Not to say that the licensing process is not painful.) My suspicion is that Google would probably like you to believe that they are having the same kinds of problems as Spotify. There are some fundamental reasons why that assumption is probably incorrect.
First consider Spotify. You can argue about their business model, you can criticize subscriptions as a commercial proposition, you can point to declines in higher margin download revenue with the increase in lower margin subscription services—but what you can’t argue with is that Spotify launched a cool product that fans like and that pays royalties. (And as far as I can tell at this point, gives a reasonably straight count.) Spotify has never stolen anything from anyone and has positioned itself as an ally of artists, songwriters, record companies and publishers large and small. And its actions make that positioning believable, which leads to trust.
Spotify did not come to Congress under threat of a subpoena and was not accused by the overwhelming majority of Members and witnesses of essentially aiding and abetting theft, in the words of Democratic National Committee chair Rep. Debbie Wasserman-Schultz.
No, that honor was reserved for Google.
The reason that Spotify has taken time to close their U.S. deals is for commercial reasons and only for commercial reasons. They are making a deal. I can tell you that launching a US digital retailer takes time, even when you have a first rate negotiation team as Spotify does. And Spotify now is closing. I can also tell you that I would put better than even money on Spotify picking up the pace on closing its deals and that it will have enough critical mass to launch in a matter of weeks
from now, maybe months but not six months. That’s just the dynamic of getting these things done. (Whether their product will be ready is a whole other question, but after all this time I have to believe that they are ready to go, particularly since there will be significant overlap between their existing product and the US service.)
Google, on the other hand is having trouble closing their deals for a very different reason.
Nobody trusts them—starting with most of the members of the Senate and House judiciary committees. Google has had one disaster after another, all of which lead to one conclusion—they are not to be trusted. This makes negotiations of any kind–other than here’s my company pay me island money and good luck—very difficult, and laden with pre-conditions that involve cleaning up the past.
Google is a company which is largely dedicated to driving to near-zero the prices of anything that their network touches (or “commoditizing” those prices). And since they can’t ever get prices all the way to zero or there would be no suppliers, they then do their best to undermine the property rights propping up those prices so they can just take other people’s property without paying anything for it, the ultimate in commoditization. All under the guise of organizing the world’s information whether the world likes it or not.
They associate themselves with and support academics and non-governmental organizations that further these goals.
They lobby for tortured versions of orphan works statutes and litigated the failed Google Books settlement, each of which would have creators ignore the moral hazard that is shot through both arrangements simply because Google is not “evil.”
They have their people make speeches and write books that mock professional creators (see, e.g., Lessig’s “The Starving Artist Canard”).
They spend hundreds of millions litigating their way to a post-copyright reality (e.g., the YouTube case against Viacom, the Premier League, music publishers and many others) and untold millions lobbying against our interests around the world (see Hargreaves Report, Colab).
And they hired a lawyer who has identified himself more publicly than anyone with litigating against rights holders in many law suits, including Grokster and Limewire. To the point that he was called out by the judge in Limewire, only to be promptly welcomed with open arms into Google and given a prominent place in Google’s legal coterie at the recent “Parasites” hearing of the House IP subcommittee. (See “Did EFF Lawyer Cross the Line in Limewire Case?”)
And they want us to believe that Germans spontaneously began egging the houses of their fellow Germans who wanted to be left out of Street View in Germany and hanging signs on their doors saying “Google is Cool”. Organically. So to speak.
And what are they good at? They are good at doing it all very efficiently and with the amoral ambivalence of a shark. There’s a difference between don’t be evil and being moral. A shark is not evil, a shark is instinctual.
Sorry, but given this little thumbnail history of Google (that leaves out a tremendous amount of other bad acts), can anyone really be surprised that nobody our business wants to do business with them? Not because you couldn’t make a commercial deal—but because who would want to be involved with that who could not?
I suspect that Google already built its music service along the lines it wanted and is now trying to force that model onto the creative community. And it should come as no surprise to anyone that the creative community is pushing back.
There was some thought among the Google Amen Chorus that Google should just buy Spotify. (That’s the usual solution proposed by these people—Google has so profited from the income transfer from commoditizing creators that it should use its ill-gotten parasitic gains to finish off its host.) Google’s purchase of Spotify hasn’t happened. Why? Aside from the fact that Spotify is not for sale, my guess is that Spotify’s licenses have assignment prohibitions that either expressly name Google as someone the company cannot sell to, or allows the licensor to terminate their license if Spotify sells to anyone else that the licensor doesn’t trust.
And who could trust Google?
Here’s another newsflash—if Google is planning on launching a service like tax cheat Amazon’s “cloud drive” that doesn’t pass muster, I would bet even money that there will be no deal for Google with Spotify, either, because the rights holders won’t approve it.
And why should they?
The law typically does not allow something to be legal if done indirectly that is illegal if done directly. And so it should be.
So when News.com suggests that “the question is whether Google is trying to scare the labels into ceding better terms” I’d suggest that Google’s problem is more likely one of its own making, and all this scurrying around or rumor mongering is far more likely a case of an arrogant negotiation team that has come up short and is trying to find a way to thumb their nose at creators yet again.
So far it’s not working.
And for the popular cant that creators would welcome a competitor to iTunes–why would they welcome a key player in the rogue sites ecosystem that blithely dissembles to Congress while lining their pockets with ill-gotten gains? Frank Costello must be having a good laugh.
Semaphore Music Staff Picks
The UK passed a graduated response statute last year that drove the anti-copyright crowd berserk (and which nearly had an orphan works section that would have allowed the wholesale exploitation of orphan works through a bad case of moral hazard until it was removed at the request of visual artists, but that’s another story).
Needless to say, the British cousins of the EFF other fake charities jumped right on a legal challenge brought by two UK ISPs getting extraordinarily bad advice. They lost at the UK High Court this week.
In the words of the Trades Union Congress General Secretary Brendan Barber as reported by The Register, the victory is “a major boost to people who work in the creative industries and whose livelihoods are put at risk because creative content is stolen on a daily basis. Rather than individuals being hauled into court, the DEA makes it possible to conduct a mass consumer education programme to give people the information they need to avoid using illegal sites in the future. The industry will finally be able to start repairing the damage wreaked by piracy.”
If you needed yet another example of how the EFF and its affiliates oppose working people, this would be it. I find it hard to square being “pro-consumer” but against workers.
Interesting story in CNET: “Blogger Targets AOL Seeks Class Action Status“. “Blogger”? You can almost hear the implied “mere” before the word “blogger”. Perhaps true, but not just any “blogger”.
In New York Times Co. v. Tasini, 533 U.S. 483 (2001), the U.S. Supreme Court held that the New York Times could not license back issues in electronic databases like LexisNexis if those works included the writings of free-lance journalists who had not granted rights to the NYT. I’d like to say that this was some great epiphany like Paul on the road to Damascus, but it is kind of a fundamental licensing issue and so the decision–while a brave fight by creators for other reasons–was not particularly remarkable from a copyright perspective. Aside from the fact that the NYT took it all the way.
What was remarkable was that the free-lancers fought huge media organizations like the New York Times and Lexis Nexus. Because the fundamental reason why these people get away with it (the same play that YouTube runs to rip off independent artists, that Google almost got away with running to rip off authors, and that Amazon is trying to run to rip off artists even more) is that the money lost to any one journalist is not enough to be worth suing over. The only way it’s worth suing over is if all the journalists get together in a class action. Which no one expects them to do. That was the losing bet the NYT made in Tasini.
I was at a small dinner for Mr. Tasini right after the case came down and I was not surprised to come away from that dinner even more confirmed in the belief that you would have to be an idiot to take a case opposing him. Not particularly a fire breather, but a dedicated servant of the truth in whom the embers of freedom glowed brightly–a dangerous man to people who wish to obfuscate the light.
I was reminded of a favorite line of a federal judge I was aware of–settle your case, gentlemen, or I will settle it for you. And so Mr. Tasini now comes to defend authors against what Lessig calls the “hybrid economy” or the “sharing economy”. Sharing as in Flickr selling for millions, YouTube selling for billions, all because they essentially tricked the antonymically named “users” into “sharing” everything but the company’s purchase price.
And then of course, we cannot ignore the personalities involved. Ask yourself this–who would come off better to a jury, a free lance blogger who only wants a fair shake, or…Ariana Huffington, probably wearing more than most freelancers make in a year and who will be defending keeping all the gold for herself in the sale of Huffing and Puffington?
So while I don’t doubt that Mr. Tasini has an uphill struggle, it ain’t the first time. So who wants to prove they can give advice as bad as that given to the NYT? Who wants to demonstrate with hard dollars how idiotic the “hybrid economy” really is? And make no mistake–that’s what this case is really about.
Or to paraphrase David Mamet, “Sharing is collaborative. Now bend over and start sharing.”
Settle your case.