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Exploring New Opportunities in Livestreaming

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Quarantine has led to the proliferation of livestreamed concerts, confirming the need for music in uncertain times. I’d guess that many more people are checking out livestreams than regularly went to shows before the pandemic. And like every other change that’s occurred in quarantine’s wake, there’s a lot of thought on how livestreaming might remain established once things normalize (fingers crossed). Before COVID-19, there were suggestions that virtual touring might gain popularity as a means to offset the environmental toll of actual touring. Current events have pushed the prospect to the forefront for entirely different reasons.

It seems there are two main categories of livestreamed concerts. First, there’s the streamed band performance, like a concert movie with the artists playing a straightforward set from a stage. And, secondly, the intimate live-from-home show, where band members — individually or together — perform casual, stripped-down versions of songs. The nature of live-streaming changes the dynamics of performance through its limitations, but, for the most part, it’s an imitation of an in-person performance. Here’s Cherie Hu in Pitchfork:

Recreating such emotions in livestreaming requires taking advantage of the medium, which often means getting rid of the superfluous spectacle you might otherwise see in normal stage setups. From the fan’s perspective, the “stage” in a livestream is just the screen, and the audience is the chat room. There’s a diminished sense of hierarchy between artist and the fan, leading to interactions that can be much more social, interactive, and intimate.

There’s a lot for the artist to lean into here. The trick is emphasizing the unique aspects of livestreaming — the loss of hierarchy, the ability to interact with fans (and for them to interact with each other), the flat screen — rather than relying on what’s lost. The platforms that win are the ones that build features that could only exist in a digitally livestreamed ecosystem. And the artists fully exploring and exploiting these features will have the upper hand, too.

Creating experiences that are exclusive to a live-streaming format — you won’t get this in clubs! — also adds possibilities for monetization. The key is giving something special, not found elsewhere. Free streams of concerts are found all over YouTube, and, to offer a high-profile example, Coachella livestreamed the last few festivals without any fee. As DJs are also finding out with their DJ sets, years of offering performances for free makes monetization of similar content difficult. Getting creative and thinking far outside of what happens in a club environment is a must.

Another note: if, after COVID-19, live-streaming remains an established part of a band’s marketing and income toolbox, then I see an opportunity for studio spaces and music venues. Many cities could have brick-and-mortar ‘livestream studios’ where bands could perform. These spaces would have the technology and infrastructure to stream performances and make each one distinct and tailored to the act. The interactive and livestream-exclusive features I mention above are built-in, with each studio offering a different specialty or feature set. Engineers and staff are on hand to manage technical as well as online (e.g., chatroom and social media) tasks. The artist would book a date, plan the details of the performance, show up, and play. The business could be stand-alone, or part of a live music venue, a recording studio, or even a co-working space. And it’s not just for bands — theatrical plays, author readings, performance art, and academic talks are some of the other potential client use cases. If live-streaming continues its path to normalization and you’re an entrepreneur looking for a future business idea, this might be something to consider.

Are We Running Out of Notes?

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In the mid-70s, a music scholar, maybe a professor, definitely someone we’d now call a ‘musicologist,’ wrote an alarming letter to Rolling Stone magazine. He stated that, by his estimation, within a few years the notes would run out. That is, musicians were about to exhaust all available music notes in every possible timing and context. He warned that soon there would be no more original songs. 

Beneath this letter was a response from John and Yoko. They were apparently enlisted by Rolling Stone to address this crisis. Their two-word reaction to song-pocalyspe: “Lighten up.“

I should point out that I can’t verify this happened. I saw the exchange printed somewhere many years ago, but I can’t find evidence online. Regardless, it’s no surprise that for decades music intellectuals have raised concerns about a limit on new songs. And that the songwriters have always reacted with a shrug.

The notes are only part of a song. Also critical: instrumentation, dynamics, performance texture, tempo, studio trickery — the list goes on. Those notes don’t seem as limited when we take these extra elements into consideration. But it’s still reasonable to imagine a few people coming up with similar melodies. And if some of those other elements align, then there might be a raised eyebrow or two. Is it plagiarism?

I’m not saying everyone is innocent of copying notes or lyrics or songs outright. But we’re led to believe it intentionally happens a lot less than it does. A dirty little secret is that songwriting isn’t all that difficult if you know what you’re doing. Having a ‘hit’ song is tough, but all of those elements I mentioned above — and some additional ones, like charisma and promotional budgets — contribute to making it a hit, too. When you think about all the potential downsides, it’s a lot easier to write a song than steal someone else’s.  

Minneapolis-based ‘record selector’ Mike 2600 has an amusing YouTube series called Songs That Sound The Same. Using two turntables (and I suspect some pitch manipulation), he goes beyond the ‘mash-up,’ drawing attention to songs that share an uncanny resemblance. This one‘s a lot of fun. As is this one and this one. 

A lot of Mike 2600’s comparisons rest on similarities in chord changes and sequences, a chord being a combination of usually three notes providing a bed for melody. Combinations of chords are a lot more limited than those of individual notes. There are a lot of similarities out there for Mike 2600 to choose from.

Mike 2600 could do one of these videos for “Stairway To Heaven” and Spirit’s “Taurus.” Maybe he has, but probably not — that resemblance is so well known it’s low-hanging fruit. Journalist Michael Skidmore thought he’d reach for that fruit when he filed a plagiarism suit on behalf of the late Spirit frontman Randy Wolfe. The two songs’ similarity elicited murmurings since the release of “Stairway To Heaven,” but the lawsuit didn’t appear until 2014. 

Yes, the iconic opening riff of “Stairway To Heaven” is bizarrely similar to “Taurus.” But so are a lot of things. The same descending chromatic chords, as noted in defense arguments, are found in the music of JS Bach and Henry Purcell, and also the song “Chim Chim Cher-ee” from Mary Poppins (which puts Led Zeppelin in an unlikely context). There are only so many chords used in so many ways.

Last week, judges agreed and cleared Led Zeppelin of wrong-doing. But the ruling added another twist — the court’s dismissal of ‘the inverse ratio rule.’ What’s that, and why is it interesting? Let’s dig in.

Understand that plagiarism doesn’t have to be intentional to warrant legal punishment. If it’s believed that you heard a song anytime and anywhere, then the plaintiff can argue it’s possible that plagiarism occurred, whether you meant to do it or not. The more famous a song is the easier it is to make this argument. George Harrison encountered this notion when “My Sweet Lord” was accused of copying The Chiffon’s “He’s So Fine.” The latter was a massive hit in 1963, at the same time The Beatles were making no secret of their admiration for American R&B. So the jury was convinced that Harrison, at the very least, unconsciously copied that song. 

This idea of access and sublimation came to its ridiculous conclusion in the recent case of Flame vs. Katy Perry. In my opinion, that case was already absurd, involving two somewhat similar and short melodic phrases representing modern pop’s zeitgeist. But Flame’s attorney argued that since his client’s song had 6 million online plays — spread out among platforms like YouTube and, yes, MySpace — it was undoubtedly, at some point, heard by the writers of Perry’s song. The jury ended up agreeing. 

Taken further, it seems the internet demolished the limitations of access. It’s now presumed that everything is available — how are 6 million streams on YouTube any different than an emerging artist appearing on an obscure but influential Spotify playlist? Arguably the potential for accidental thievery is the same. Almost all music is available by tapping the screen of a smartphone, so the idea of access is passé. The court in Led Zeppelin’s case recognized this change in our culture, and the ‘inverse ratio rule’ — which gave preference to the more widely distributed song — is toast.

There are other ways that technology alters our concepts of plagiarism. Let’s consider how companies like Splice are affecting musical ownership. Splice is a market-place for sounds, where recording artists can download loops and phrases to use in their own songs. After paying a subscription fee, the user is given these sounds as ‘royalty-free’ sonic building blocks. That means an artist can use these bits in a commercial recording without royalties or attribution to Splice, and claim the rights to the song as her own. No one owns Splice’s sounds — they can be used simultaneously in any number of songs. 

Of course, this model reached an inevitable outcome. A melodic loop from Splice was used in a song by — of all people — Justin Bieber. Within 24 hours of that song’s release, artist Asher Monroe accused Bieber of ripping off the instrumental hook from his song. But they both got the phrase from Splice. As did many other artists, including Korean hip-hop artist YUMDDA. According to The Verge, that leads to another 21st-century problem:

Because Monroe and YUMDDA’s songs have portions with the unaltered sample and nothing else, Shazam gets confused. The app sometimes identifies Monroe’s track as YUMDDA’s, and vice versa. But it has no trouble identifying Bieber’s song, likely because there are other percussive elements always layered on top of the sample.

And now here’s something else:

Damien Riehl — a lawyer, coder, and musician — and Noah Rubin pulled an impressive stunt. They wrote a program to generate every possible melodic combination of notes. The program then stored all 68.7 billion melodies to a hard drive. But rather than using up all the songs, as the Rolling Stone letter-writing musicologist feared, Damien and Noah put the contents of the hard drive in the public domain. All melodies are now free to use, they argued. From here forward, lawsuits for copyrighted note sequences are all frivolous. 

Of course, Damien and Noah’s effort is meant to make a statement and probably won’t change anything. The Led Zeppelin ruling will have more effect on songwriters (as will the appeal-in-progress on the Katy Perry suit). But it makes an interesting point. And it helps highlight the limited nature (and mathematics) of notes, and how subconscious plagiarism could become an outdated concept now that we’re subconsciously consuming everything. 

UPDATE: Soon after I wrote this post, Katy Perry and her co-writers won their appeal and the judge overturned the plagiarism ruling.

This post was adapted from Ringo Dreams of Lawn Care, a weekly newsletter loosely about music-making, music-listening, and how technology changes the culture around those things. Click here to check out the latest issue and subscribe.

How a Factory Fire Underscores Vinyl’s Fragile Future

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This month doom and gloom descended on the record industry. And by the ‘record industry,’ I mean the industry that manufactures, releases, and loves vinyl records. The fragility of the vinyl revival was dramatically revealed by a tragic fire at a factory in California. People are freaking out. And, as I wrote about the story for my newsletter, I started thinking about vinyl in a broader sense — why do we love it, what are its alternatives, and do we really need it?

Before we go down the rabbit hole, you might want to watch an informative video that shows the creation of a vinyl master:

Pretty cool, eh? So, back to this concerning fire. The quick summary: a couple of weeks ago, the Apollo Masters Corp. building in California burned to the ground. Thankfully, no one was hurt, but the damage to the facility was severe enough that it’s unlikely the plant will reopen. And that’s bad news because this plant was one of two in the world that provided the lacquers necessary to create master discs for vinyl record production. (You may have noticed that Gonsalves opens an Apollo box for his lacquer in the above video.) The other plant is MDC in Japan, reportedly behind schedule and turning down new customers even before the fire.

This tragedy triggered a lot of doomsday takes, with the founder of record presser Capsule Labs memorably coining the word “Vinylgeddon” in Billboard. I briefly spoke to Mike Dickinson of Austin’s Chicken Ranch Records, and he wasn’t as dramatic: “There could be a bottleneck in the new release categories for a bit, but I don’t think we will see much of a slowdown in already mastered and plated product. It will be interesting to see what labels will do to innovate during this time.”

Chicken Ranch presses with Gold Rush Vinyl, which fortunately uses the Japanese lacquer-maker. Once word gets out that this plant has a reliable source for lacquers, what happens to their backlog? Will prices rise? Will it take much longer for finished records to ship? And, more importantly, what happens to the plants that used Apollo for lacquers? Another wrinkle to this story is that Apollo was also a source for the cutting styli used in Westrex heads. Thus plants with Westrex equipment may have a problem replacing styli.

All is not lost. There is DMM (Direct Metal Mastering) technology that most European pressing plants use. DMM doesn’t require a lacquer, though some feel the sound of DMM records is harsh and lacks bass (thus not the preference for DJ music). With some tweaks, this process could be viable for everyone, but the promise of improving DMM tech might be a fool’s errand. Here’s Abbey Road Mastering Engineer Miles Showell being a total downer:

I highly doubt there will be any serious development in DMM. All the Neumann engineers who designed and knew about this stuff are dead. All of them. They did not write everything down which will probably make reverse engineering DMM technology prohibitively expensive.

The absence and cost of innovation are other issues. For all the talk of a vinyl resurgence, it’s still a niche business. Is there enough financial incentive for invention and new technologies? Physical manufacturing isn’t as sexy a pursuit as some shiny, disruptive music tech start-up. Where will we find the vinyl innovators?

The Discogs editorial team has a more optimistic take. There are quotes from ‘unnamed executives’ that other American lacquer plants could appear soon, and it’s hoped that a retired Apollo will openly share their proprietary technique. Also, master plates are created far in advance, so we shouldn’t see a slowdown in new releases for several months. Record Store Day 2020 is probably safe. And represses of classic titles make up most of a record plant’s business, and those plates are ready to go, no new lacquers needed.

Despite which way things end up, the Apollo fire is a wake-up call. The infrastructure for the vinyl industry is fragile. Another reminder of this instability is the recent — and on-going — scandal with Direct Shot Distribution. All three major labels now use Direct Shot to get their vinyl to stores, including the indie labels distributed through the majors’ indie services such as Warner’s ADA. The handling of all these records by a single distributor has created an inexcusable backlog, delays getting releases to stores, and weird things like shipments “supposed to contain music [instead] filled with bottles of prescription cough syrup.” The situation has prompted some to throw around the conspiracy theory that it’s the major labels’ way of killing off the vinyl revival. I don’t buy it — it’s merely the migraine headache of coping with unexpected analog hold-outs in a world that’s moving toward the digital. The ‘niche’ is so easy to maintain digitally that its physical side can’t keep up in the global market.

This brings me to what I really want to talk about: reliance and identity.

The identity of a lot of independent labels is tied up in vinyl. This strong link is a reason the news of the Apollo fire sent shockwaves around the music industry. I doubt many labels are depending on vinyl financially — the dirty secret of the ‘vinyl revival’ is that most independent labels would be stoked to sell 200 or 300 copies versus the couple of thousand pieces small labels shot for in the ‘90s. But, for many, the identity of the vinyl-pressing label is vital in the wake of digital labels.

Anyone can start a digital label, right? It’s believed that vinyl means you’re more serious, that there’s an investment, and, for artists, there’s prestige. There’s something to be said for all of that. It’s why many labels pressing vinyl do so at a loss — which is fine if you can afford it. But there are other ways to show you’re serious about your label. Springing for an exceptional website that engages fans comes to mind — or spending that vinyl money on someone to help with promotion. And seriousness doesn’t have to cost money. Operating your label professionally and with ambition and purpose says a lot more than a stack of unsold records in the corner of your home office.

Things have calmed down a bit since the fire, but labels relying on a vinyl identity were initially terrified at the news of Apollo’s demise. What would their futures look like if the infrastructure for vinyl collapsed? Here’s an unwelcome comparison: is this fear the same for a label that put all its eggs in the Spotify basket, and now Spotify is shifting its focus to podcasts? Or, how about the fears of an industry propped up by the insane profit margin on compact discs, and a few years later, no one wants CDs anymore?

Today there’s so much opportunity for diversification. Not only in the delivery format of a musical release, but also in the means that a label and an artist can inspire income streams, distribute themselves, and find previously untapped audiences. There’s no reason to narrow one’s scope. Nurturing an identity is cool — branding is a necessary consideration — but not at the expense of putting your project in a predicament if that one aspect you’re tied up in changes direction.

Do we need vinyl? I want to think so, though I did sell my entire collection in one not-as-painful-as-you’d-think decision strategically before moving to a new house. Here I’ll defer to Shawn Reynaldo, who asks some crucial questions about the need for vinyl in his outstanding First Floor newsletter. Provocatively, Shawn — who primarily writes about DJ-oriented genres — states:

It’s funny, electronic music is supposed to be rooted in notions of futurism… But so many of our practices are rooted in sentimentality and notions of “this is the way it’s always been done.” Traditions can be a good thing, and I’m not the kind of person who regularly advocates for “smashing the system,” but when it comes to vinyl, we’re long overdue for a change. The [Apollo] fire is a major bummer, but it might also be the catalyst we need to make some real changes.

Vinyl enthusiasts are sometimes puzzled by people who purchase records and never open them. These record-buyers do listen, but they opt to use streaming platforms or digital downloads (the vinyl probably came with a download code). The album is an appreciation of the music, a totem of sorts, something to look at or to show friends. It’s often a measure of support. And more than a t-shirt, albums become decor, giving voice to the fan like a collection of books on a shelf.

I’d venture that in 2020 most albums are purchased like this. And that gives me pause about an album’s purpose. I wonder if this power is transferable to other collectible items. The answer: of course it is. We already see it in the surprising return — and popularity! — of cassette releases on Bandcamp. The mocking was rampant when cassettes started to reappear. But think about it — if we’re buying a personalized item to support a band and to physically show that support in our homes, a cassette is equally effective. It’s even more potent wrapped in a groovy and personalized package. Financially, a cassette is a lot less risky and more hands-on for the band. And, refreshingly, the investment is in the personalization and creativity of the object, not the cost.

The door is open for imaginative stand-ins for the vinyl album. It could be a screen-printed wooden box containing photos from the recording session and an odd-shaped USB for the music. Or perhaps a compact disc in a hand-stitched multi-page zine with artwork reflecting the band’s political activism. And if you want to get really nostalgic and downright weird with your format, how about releasing your music on a floppy disc?

I’ll go one further. Does this physical object even require music? As long as the listener has the audio files or access to the release via streaming, anything can represent the fan’s love for the band.

I recall my friend David and his support for the South African electronic musician Felix Laband. Felix is also an excellent visual artist and David tracked down and purchased one of his paintings to proudly hang on his wall. Though he loves the artwork on its own, this was primarily a show of support for Felix’s music. As David writes on his blog about the purchase, “If we could do the same for John Kennedy Toole for having written A Confederacy of Dunces or for Brian Hutton directing Kelly’s Heroes we would, but they’re dead so you’re it. We hope that repatriating your art is adequate compensation.”

The first trick is inspiring your fans to offer support and want to display your object in their homes. Next, come up with something crafty, surprising, and personal that connects with a dedicated listener and dazzles her friends. This something could be a vinyl record, but it doesn’t have to be. And, someday, it’s possible that it can’t be. Be ready.

A quick addendum: We can’t ignore that vinyl manufacturing is an environmentally hazardous procedure. The Apollo Masters Corp. supposedly ran afoul of the EPA in the past. Apparently, the plant didn’t have to adhere to some environmental regulations due to grandfather exemptions. Building a new plant removes these exemptions, and that could be one reason Apollo is hesitant to reopen.

Furthermore, as pointed out in a recent must-read article in The Guardian, the PVC in vinyl contains carcinogenic chemicals. The Thai factory where half the world’s supply originates is likely contaminating a local river with toxic wastewater. Records are a petrochemical product, so let’s not forget the pollution and greenhouse gas that entails.

But, as also mentioned in The Guardian piece, digital streaming has its own impact on greenhouse gas. The manufacturing of the phones and computers we use to listen results in toxic waste. And, as our devices are updated, the old ones end up in landfills. Like a lot of news these days, this knowledge is dispiriting. But having this conversation offers a glimmer of hope as we explore and imagine alternative, less harmful ways to listen.

This post was adapted from the second episode of my email newsletter Ringo Dreams of Lawn Care. Click here to check out the full issue and subscribe.

Sampling Non-Stop

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CMU’s Setlist podcast is running a fantastic series of shows on the ‘Top Ten Legal Battles’ in the music industry. The latest episode is about a European court’s recent judgment over a two-second sample from Kraftwerk’s “Metall auf Metall”. As I’ve covered on the blog, the defendant lost. It’s all quite fascinating, and the podcast covers the ins-and-outs. The hosts also include a short history of sampling litigation and an easy-to-follow explanation of the rights in play. Check it out:

The unsuccessful lawsuit over a short horn sample in Madonna’s “Vogue” is discussed in the history section. The hosts remark that the publisher for the sampled artist — The Salsoul Orchestra — used ‘new technology’ to identify the short sample. I would make a bet this technology is the website whosampled.com. Rights-owners often consult this site to find who sampled their artists. I speak from experience — someone once contacted me regarding one of my sneaky samples, revealed to the sampled artist’s publisher via that site.

In other sampling news, CMU also recently covered Drake successfully arguing fair use for one of his samples. The sampled artist was Jimmy Smith, with a snippet appearing in Drake’s “Pound Cake.” It’s a sample of a spoken word bit from 1982’s “Jimmy Smith Rap” where Jimmy states that “jazz is the only real music that’s going to last, all that other bullshit is here today and gone tomorrow, but jazz is, was and always will be.”

The case is curious because Drake cleared the recording — usually the only requirement in sample clearance — but Smith’s estate argues that he should have cleared the ‘lyrics’ as well. So, Drake went for a fair use defense for his appropriation of the lyrics.

I’ve written before how fair use is a tricky argument. There aren’t any set-in-stone conditions that qualify for fair use, but there are some loose guidelines. In the end, it’s left to the opinion of the court. And surprisingly (to me), the court ruled in Drake’s favor.

CMU:

In the words of the Second Circuit: “The message of the ‘Jimmy Smith Rap’ is one about the supremacy of jazz to the derogation of other types of music, which – unlike jazz – will not last. On the other hand, ‘Pound Cake’ sends a counter message – that it is not jazz music that reigns supreme, but rather all ‘real music’, regardless of genre”.

The court goes on: “‘Pound Cake’ criticises the jazz-elitism that the ‘Jimmy Smith Rap’ espouses. By doing so, it uses the copyrighted work for ‘a purpose, or imbues it with a character, different from that for which it was created’”. Which, the judges reckon, is sufficient to constitute fair use.

That’s a coherent and straight-forward opinion. But I still feel the ruling could have gone either way. As I’ve said before if you’re going to argue fair use then be ready to defend that in court. And keep your fingers firmly crossed.

🔗→ Artist News Business News Labels & Publishers Legal Setlist Setlist: Top ten legal battles – The Kraftwerk sampling case
🔗→ US appeals court rules that Drake’s Jimmy Smith sample is definitely fair use

Why a Tip Jar on Spotify is a Bad Idea

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In discussions with artists, in think-pieces, in Twitter threads — here’s an idea that comes up all of the time: streaming platforms (Spotify, etc.) should add a ‘tip jar.’ If you enjoy an artist, you can ‘tip’ them, like a dollar bill in a busker’s guitar case. It’s a way of helping the artist in a time of dwindling streaming payouts.

The suggestion is well-meaning and, at first, sounds like a great idea. But there are a lot of problems.

Let’s start with logistics. The streaming platform would need to implement a direct payment system. And the only way a ‘tip jar’ would work is if the payment goes directly to the artist. A label or distributor could be a conduit, but if the idea is to eliminate the ‘go-between,’ then having someone in the middle — accountable for payments and likely taking a cut — defeats the purpose.

For this ‘tip jar’ to work, the artist would need to contact the platforms and set it up personally. And, unlike a single distributor that maintains relationships with multiple platforms for an artist, the artist would have to directly manage each platform (assuming different spaces come on board to the idea).

But could we even get to that point? This concept wouldn’t work unless Spotify came on board. And what’s the incentive for Spotify to do something like a ‘tip jar?’ It would take an investment and change in infrastructure to set up this feature and facilitate direct payments. What’s in it for them? As a shareholder-controlled company, there needs to be a profit motive embedded in everything they do. And, again, if a platform takes a cut of the ‘tips,’ then the purpose is defeated.

I don’t harbor an illusion that Spotify would install a ‘tip jar’ without a profit motive simply to support the artist community. It’s not hard to discern Spotify’s interests, given the company’s recent moves: the opposition to raising copyright payouts to songwriters, the shift to podcasts, Daniel Ek’s insistence that Spotify is an ‘audio company,’ not a ‘music company.’ Spotify, and other corporate platforms, seek profit above all else, and a ‘tip jar’ doesn’t fit into that equation.

Now let’s pull back and look at some broader problems. We have to accept that, on its face, a ‘tip jar’ on streaming platforms is a bad idea. It disguises the insufficient payouts to artists — as well as the lousy record deals where many artists find themselves trapped — by claiming they can (and should) live off tips. There are already ethical problems with paying service industry workers far below minimum wage due to the possibility of ‘tips.’ We shouldn’t continue to normalize this practice by extending it to recording artists.

Also, an artist tipping system harms non-artist songwriters. Songwriters would not receive these tips. If fact, non-artist writers would probably receive less royalty. It’s possible services and labels would use the tipping feature as an excuse to reduce royalty payouts.

If we can ignore this bad behavior, then there’s an additional danger. A tipping system on Spotify, used by artists for income, would ironically increase reliance on the platform. It’s another method of separating artists from their fans, with Spotify standing in the middle. If the domination of corporate streaming platforms is what brought us here, wouldn’t it make better sense to offer solutions that lessened an artist’s ties to them? I worry that including Spotify et al. in plans to help independent artists shuts us off from outside-of-the-box ideas that further artist independence.

I also don’t think that artists should have to busk and beg on the side of a road that runs alongside corporate property. It’s a bad look, and it’s demeaning, and, despite what we’re led to believe, there are other options. Yes, artists need to make a living, and streaming payouts are awful, especially in the niche genres. But ‘if you can’t beat ‘em, join ‘em’ isn’t the answer here.

The answer lies in fandom — it always has — and finding ways to cultivate and engage an audience without a middleman controlling access. For starters, a robust artist website is key. Create a hub that draws new listeners and repeated visits from diehard fans. Reward with bountiful content, consistent updates, surprises (very important), and full streams of the catalog. Your website is where you send people, not Facebook or Spotify or another platform that controls access to fans. One can still use those platforms, of course, but use them merely as tools to get people to your site. And, if you want, that’s where the tip jar goes.

The Shifting Definition of Independent Music

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Recently a reader called me out for repeatedly throwing around the phrase ‘independent artist’ or ‘indie label’ without explaining my definition (or if I even had one). Fair enough. Let’s discuss: what does independent mean in 2020?

The ‘indie’ tag has meant less and less over the past thirty years. There was a stark difference between indie and major labels until the grunge years of the early ’90s. The success of Nirvana triggered an ‘indie band’ signing spree that saw a lot of independent labels get into bed with the majors, both publicly and covertly. I remember insiders up-in-arms over The Smashing Pumpkins, whose Caroline Records debut was supposedly just an ‘indie cred’ warm-up to their already planned sophomore album on a major label. Caroline, at the time, was a subsidiary of Virgin, after all. Even then, there were debates over whether an act such as this could be considered independent.

Things seem less complicated now, but only at first glance. One can’t get any more independent than self-released, right? And bedroom labels are rampant, a far distance from the three major label behemoths. But the confusion lies in distribution, marketing, and the third party deals a label or artist signs in the guise of ‘label services.’ Is a self-released artist independent while using a distributor that also controls her publishing? While promoting solely through a social media platform that is the gatekeeper to her fanbase? And while relying on Spotify playlist placements for discovery and traction?

We’re likely splitting hairs. Some of the bands we considered the most independent in the ’70s and ’80s relied on corporate record chains to sell their music, or entered into deals with management agencies and live venue networks. But now there is an air of acquiescence that seems different. Is ‘selling out’ even an available option when the biggest corporations in human history are necessary for exposing one’s music?

This circumstance presents a challenge when defining ‘independent music.’ And this challenge is depressing. If we’re in bed with corporations because of the tools we use, then there’s not much hope for the punk rock dream.

Historically, we’ve looked at independence in terms of control. Who’s in the driver’s seat? I think that stands, even if we need to tweak things a little. It’s natural to call a label or artist who controls songs and revenue flow — traditionally through a distributor — an independent. But even that’s debatable, as Cherie Hu pointed out in a recent post:

… according to Billboard and Nielsen, copyrights owned by Universal Music Group account for a 29% share of the recorded-music market — but if you look at [indie label] catalog distributed by Universal, that share increases to 38%. On the flip side, copyrights owned by indie labels account for 35% of the market, but copyrights distributed by indies account for only 16%. This implies that many artists and labels who we categorize as “indie” actually rely on distributors owned by major labels to release their music — a nuance that can be complicated to discuss in the open.

Also, a difference from decades ago is that the current independent artist must also exert control of her fanbase. In other words, the audience interacts through the proprietary website, or an email list, or at live shows rather than solely through the corporate go-between of social media. As I’ve spoken about before, an independent artist uses social media as a mere tool, not a reliance.

Our definition of independent is increasingly subjective. If Taylor Swift managed to gain control of all her recording masters, publishing, and fanbase access, we could call her a sort of independent artist even when Universal distributes her music. Likewise, an emerging artist on a small independently distributed label, but who signed all his recordings and publishing to the label for perpetuity, isn’t exactly independent.

I believe the title of ‘independent’ now leans towards those who understand and control their rights. It used to hinge on the size and scope of the artist’s associated label, which made the definition easier to suss out. But as more and larger artists continue utilizing 21st-century tools to seize their rights, the meaning of ‘independent’ only gets blurrier.

How Songwriters Got Thrown Into a Minefield

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I’d like to highlight a couple of informative and disconcerting articles about the state of infringement litigation in the wake of the “Blurred Lines” decision. Both pieces are worth a full read.

In The New York Times, Jon Caramanica writes that It’s Got a Great Beat, and You Can File a Lawsuit to It:

Originality is a con: Pop music history is the history of near overlap. Ideas rarely emerge in complete isolation. In studios around the world, performers, producers and songwriters are all trying to innovate just one step beyond where music currently is, working from the same component parts. It shouldn’t be a surprise when some of what they come up with sounds similar — and also like what came before.

The idea that this might be actionable is the new twist. Every song benefits from what preceded it, whether it’s a melodic idea, a lyrical motif, a sung rhythm, a drum texture. A forensic analysis of any song would find all sorts of pre-existing DNA. […]

What’s left in its wake is a climate of fear. In some recent cases, you can sense pre-emptive gamesmanship, as when Taylor Swift gave a writing credit to Right Said Fred for a cadence on “Look What You Made Me Do” that recalled “I’m Too Sexy.” Or the rapid settlement Sam Smith reached with Tom Petty for perceived similarities between “Stay With Me” and “I Won’t Back Down.” Whether there was a direct borrowing didn’t seem to matter; the potential for the perception of theft was enough to instigate an arrangement.

A few years ago, I worked with a songwriter who unexpectedly received a writer’s credit on a previously unheard new song. No one contacted this songwriter beforehand — the credit just suddenly appeared on publishing statements. It turns out the ‘hook’ for the new song was similar to the chorus in a well-known composition the songwriter penned in the ’70s. My songwriter friend didn’t mind and probably wouldn’t have litigated, but was happy with the outcome — the new song ended up a worldwide , resulting in a nice payout.

I’m sure this decision — as is the case with most of these preemptive moves — was made by the label’s legal team. I imagine a group of on-staff musicologists pouring over every potential hit song looking for the vaguest of similarities. The lawyers are alerted of any resemblance and the original writers are proactively paid off with a credit and publishing share. I find this risky as it informs the original writer of the similarity. Even with the credit, I don’t think anything is stopping a writer from claiming copyright infringement, that it’s an unauthorized derivative work. A court might see the publicly acknowledged credit as admission. But of course, payment for essentially doing nothing is appreciated, so why bother with the hassle of going legal, right?

In Rolling Stone, Amy X. Wang explains How Music Copyright Lawsuits Are Scaring Away New Hits:

While copyright laws used to protect only lyrics and melodies (a prime example is the Chiffons’ successful suit against George Harrison in 1976 for the strong compositional similarities between his “My Sweet Lord” and their “He’s So Fine”), the “Blurred Lines” case raised the stakes by suggesting that the far more abstract qualities of rhythm, tempo, and even the general feel of a song are also eligible for protection — and thus that a song can be sued for feeling like an earlier one. […] “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” [Katy] Perry’s lawyer Christine Lepera warned in the case’s closing arguments. […]

The popularity of cheap music-production software, which offers the same features to every user, has added another layer of risk. “Music is now more similar than it is different, for the first time,” [prodcuer and songwriter Ross]Golan says. “People are using the same sample packs, the same plug-ins, because it’s efficient.”

Instrument plug-ins, to be intuitive and easy to use, tend to push users in creative directions. Certain built-in sounds rise to the top, as do sequences and arpeggiations included in the presets. Though these are sounds and one can’t necessarily be sued for a sound (though it has happened!), the inspiration provided by the built-in options potentially send producers to common destinations. A similar five-note motif using a shared patch or a melodic run from an embedded sequence pattern opens up an incentive to take action. Based on what we’ve seen, it’s uncertain a jury would understand the nuance.

And there are potential problems with services like Splice that offer samples and construction kits used by multiple producers. More than one song can easily feature the same melodic building block, and some sample pack offerings from Splice and other services even include lyrics. If a song based on a Splice melodic loop becomes a hit, what happens to the other songs using the same hook?

With copyright protectors like Content ID, it’s who-gets-there-first when it comes to commercially available sample packs. If there’s more than one song using a sample pack melody, the first applying for Content ID stakes the claim. Other songs using that melody might get flagged. This issue has happened in the past with Apple Loops, as producers discovered if they used specific melodic loops included with Logic Pro, the songs would get blocked by YouTube for infringing an earlier song using the same loop.

Even if a sample isn’t used in its blatant form, or is obscured or twisted in the mix, it likely provides the same inspiration as other producers hearing the same sample. It’s not unrealistic to think similar ideas, melodies, or compositional seeds will result from a shared inspirational foundation. Unless there’s future legal clarification — or the courts decide to rely on experts rather than juries in infringement cases1Manager Lucas Keller says in the Rolling Stone article: “In British court, they’d just ask a musicologist to decide. In American court, we bring in 10 random people.” — paying out ‘damages’ and carving out writing shares will be an expected ritual for composers of hit songs.

The Legal Argument Formerly Known As Fair Use

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The definition of ‘fair use’ is a muddle. We can accept that fair use might apply if a derivative work doesn’t seek to earn a profit, transforms the original in some way, and won’t discourage purchases of the original work. But the key word there is ‘might.’ it’s all a bit vague, and, in the USA, the definition will vary court-to-court, case-to-case. If you’re going to claim ‘fair use,’ be prepared to defend your interpretation in the legal arena.

Prince’s representatives have tussled with fair use claims before, most famously losing the long-running ‘dancing baby’ case. It turns out a short snippet of a song playing in the background of a home video does fall under fair use. That makes sense.

In the most recent fair use case for the Prince estate, Kian Andrew Habib isn’t as fortunate. Via Complete Music Update:

[Prince’s estate] targeted six videos recorded and uploaded to YouTube by a man called Kian Andrew Habib. The estate’s reps argued that the recordings of Prince’s performance infringed the copyright in the songs being performed. […]

[Habib] reckoned fair use applied because his videos were “non-commercial and transformative in nature … used no more of the original than necessary, and had no negative effect on the market for the work”. […]

[However, a judge ruled that] Habib’s artistic decisions when filming Prince perform did not mean his use of the musician’s songs was “transformative in nature”. And while he may not have directly financially benefited from posting his content to YouTube, by bigging up his videos as being “rare” and “amazing” recordings of Prince performing live he drove traffic to his YouTube channel, thus ensuring he benefited from his use of the musician’s work.

So, there you go. Even though you’re not directly earning a profit, using someone else’s work to build your reputation or follower count qualifies as commercial gain in the eyes of the law. I’m no lawyer, but my sound advice is to be wary of the protective value of fair use.

🔗→ US court rules fair use didn’t apply to unofficial Prince videos on YouTube
🔗→ ‘Dancing Baby’ Wins Copyright Case

YouTube Grapples with the Short and Unintentional

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Here’s an interesting development in how YouTube handles claims of copyright infringement for the appearance of “very short or unintentional” musical content. Let’s go to TechCrunch:

Going forward, copyright owners will no longer be able to monetize creator videos with very short or unintentional uses of music via YouTube’s “Manual Claiming” tool. Instead, they can choose to prevent the other party from monetizing the video or they can block the content. However, YouTube expects that by removing the option to monetize these sorts of videos themselves, some copyright holders will instead just leave them alone. […]

Creators were also given tools of their own that let them easily remove the clip or replace the infringing content with free-to-use tracks.

The Verge:

Creators on YouTube have increasingly struggled with record labels claiming copyright on their videos when snippets of music appear momentarily in the background, like from the radio of a car passing by. YouTube’s new rules don’t stop these claims from happening, but they attempt to discourage the claims by removing a key incentive for copyright holders: the ability to make money. […]

There are a couple of big caveats to the policy, though. It only applies to “manual” copyright claims — that is, when a record label or other rights holder identifies something that belongs to them and files the violation notice by hand. If a music clip is caught by YouTube’s Content ID system, which scans videos for infringing material, then rights holders will still be able to make money off of the video, regardless of how brief or unintentional the music is.

Complete Music Update:

YouTube also suggests creators make sure that there is no music playing in the background when a video is shot. Even though, in many countries, that would be covered by a copyright exception anyway, meaning no licence should be required. But, of course, rights management tools on user-generated content platforms are still struggling with the ins and outs of copyright exceptions and, in the US, the always ambiguous concept of fair use.

There have been exceptions for music use considered ‘diminutival’ (a fancy word I learned from a lawyer at Podcast Movement in reference to, say, singing a single line from a song in your podcast). And traditionally music that appears in live broadcasts — for example, a news report with a song playing at a business where an interview is taking place — is exempt. Though, in that case, any not-live rebroadcast would need to clear the song. It’s tricky.

In the past, a music rights-holder could claim a song appearing in a video that falls under the category “very short or unintentional” — like a song blasting out of a passing car for a second — and monetize the entire video for herself. In some cases, this claim process makes sense, but, in others, it’s potentially abusive. The Verge notes a popular YouTuber who lost monetization on a prominent video because he quoted a line from Bon Jovi’s “Livin’ On A Prayer.”

YouTube’s new approach is unique. Monetization became an incentive to overindulge in copyright claims, so that option is no longer available for these short uses in manual claims. Instead, the video can be blocked, or its monetization credentials removed for everyone. The video creator has the option to edit the offending song out of a problematic video to reinstitute monetization. It’s important to note that if the Content-ID robot identifies a song, then all bets are off — as before, the rights-holder can claim full monetization without any options to the video creator.

The solution is flawed and, I’m sure, an experiment. The push-back is that any video that incorporates a song becomes a derivative work of the infringing content, no matter the length or context. Thus the work becomes the claim of the infringed rights-holder. I see that point, and the recent EU judgment on Kraftwerk’s metal-on-metal hit shows how diminutive length often doesn’t matter.

But my feeling is that, for now, this is a suitable compromise. The legal boundaries of user-generated content are still under review. Experiments like these will help define how we, as rights-holders, deal with an ‘everyone is a creator’ culture in a way that exercises ownership without discouraging spontaneous homespun creative works.

Moving Toward a Music Solution for Podcasts

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I often talk to podcasters about music rights, but we never get anywhere. They want to know how to use recorded songs in their episodes. You think it would be easy — plenty of podcasts are using music and getting away with it. I suspect they’re just flying under the radar. Could fair use come into play? My friends’ podcasts could be considered informational, talking about the music and the artists behind the songs. But claiming fair use is a throw of the dice, and you need to be prepared to go to court if a cease-and-desist letter appears in your inbox. ‘Fair use’ is something that’s decided in a courtroom.

The problem is that there are no set guidelines for using music in podcasts. It’s a gray area, that ‘wild west’ that people bring up when discussing content rights on the internet. Podcasts are a combination of a download and an interactive stream — one or the other or both can happen. So the rights may fall closer to those of a song released to iTunes and Apple Music than licensed to a video or for radio play. On top of that, the usage is a derivative one. You’re incorporating — thus technically altering — someone else’s work in your podcast.

Right now, the solution is to locate and directly contact all of a song’s rights-holders. Easier said than done! Many songs, especially the popular ones, have multiple rights-holders to find. In my experience, Google won’t be much help. It’s the same process that a music supervisor goes through to license for a major motion picture. But, as we learned at the Podcast Movement conference in Orlando last week, 94% of podcasts have less than 5000 downloads per episode. These aren’t operations with the resources of a movie studio. Or the clout and money for that matter — imagine negotiating with a music publisher over a song for your fledgling comedy podcast.

So, yes, the Podcast Movement conference happened last week. And, with premeditated timing, an announcement was made right before the conference doors opened. The news offers a music solution for podcasters. Here’s an excerpt of the press release from SoundExchange:

SoundExchange today announced plans to collaborate with SourceAudio to provide a new solution for the rapidly growing podcast industry to secure music with fully integrated, global licenses. The collaboration would provide Podcastmusic.com, a digital music marketplace for podcasters, with access to SoundExchange’s vast membership of music creators and offer licensing for label and publisher-owned music. […] The service will launch in 2020. Participation in this service by publishers, labels, and other rights owners is on a voluntary basis.

SoundExchange is the rights organization designated by the US Congress to collect royalties on non-interactive digital streaming (such as from SiriusXM or Pandora in old school ‘station’ mode). As it’s the only US organization to handle this type of royalty stream, the catalog of recordings registered with SoundExchange is vast.

In 2017, SoundExchange acquired the Canadian mechanical rights society CMRRA which plays a part in this podcasting arrangement. SoundExchange’s inherent authority over non-interactive streaming doesn’t apply to podcast licensing. But the necessary clearance and royalty collection on the sound recording (mechanical or reproduction rights) is handled through CMRRA. The composition side, overseen by organizations like BMI and ASCAP, is cleared by direct license. The rights-holder opts-in through SoundExchange and grants direct licensing for podcasts.

The catalog will appear on SourceAudio‘s existing site PodcastMusic.com. Presently there is a database of ‘700,000 production and music bed tracks’ that will presumably sit next to recordings pre-cleared through SoundExchange. As SourceAudio is a private company, there have been grumblings about its collaboration with a congressionally mandated organization. I feel this warrants a discussion — undeniably this arrangement gives SourceAudio an upper hand on its competitors. Perhaps SoundExchange can expand this service to other companies that fit professional guidelines, giving the rights-holder an option of libraries to use.

Regardless, this is an exciting development and a massive improvement for podcasters navigating music rights. Recording artists and labels should be pleased, too — this opens a new revenue stream and licensing outlet.

I attended Podcast Movement and sat in on two panels that delved into the mechanics of this emerging podcast music service. A lot of the details are still being worked out. But I can start to see the full picture thanks to remarks by representatives of SourceAudio and SoundExchange and a pair of spirited audience Q&A sessions. Here’s some of what I learned:

  • The service is voluntary for SoundExchange members. All rights-holders — labels, publishers, artists — must opt-in. Prices can be set by rights-holders, which would allow those with high profile content to charge more. However, a $20 per license range is suggested to encourage more licensing frequency. A SourceAudio rep described the ideal model as “Walmart, not Neiman Marcus.”
  • A license will be for one usage in one podcast episode. The licensee will be limited to up to 90 seconds of the song. I assume a shorter usage will reduce the fee.1The fee will also be adjusted according to how many downloads you predict for the episode. There will be two license categories: bumper music, for going in and out of segments; and music used in an informational context, such as historical podcasts about the song or artist played.
  • If the podcaster wishes to license the full song or use the song repeatedly in a series (such as the podcast’s theme song), then the rights-holder(s) must be contacted directly. But fear not — the platform will provide a method of contact for all songs in the catalog. Also, songs in the SoundExchange library not opted-in for pre-cleared podcast licensing are listed as ‘unavailable.’ But a means of contact will be provided for direct negotiation and licensing. Handy. 2I asked if a rights-holder could create exclusions, such as ‘my music can’t be used in conspiracy theory-promoting podcasts.’ It seems there might be something like this in place, but the answer I received was vague.
  • After completing a license, the podcaster downloads the song. This song file will contain a special watermark. Upon the podcast’s completion, I believe the creator is required to upload the show to SourceAudio for verification.3If this is the case, it would be beneficial to integrate this delivery into major podcast distribution platforms. The music’s use in the podcast is tracked via watermark through arrangements with various podcast distribution networks. I imagine Google’s podcast platform plays a large part here as it’s inevitable that some form of Content ID is utilized.4Similarly, any license through the service will also apply to YouTube for ‘video’ streams of podcasts.
  • Though the licenses will be global,5How can one effectively territory-restrict a podcast, anyway? only songwriters registered with US-based PROs can participate at the service’s launch. This issue is probably because not all international PROs recognize direct licensing. The SourceAudio rep assured me the program would be expanded to non-US artists eventually, but there will be some confusion until then. US labels and publishers will be frustrated when they can’t submit songs registered by non-US writers to foreign PROs. Hopefully, this worldwide expansion starts rolling out soon after launch.
  • It appears spring 2020 is the launch target. But there will be a beta version going live any day now. In a smart move, SourceAudio will push well-known Christmas songs for the beta period. The seasonal content will accelerate the testing period as these Xmas licenses will appear in podcast episodes before the end of the year.
  • “Back In Black” was mentioned in passing a total of three times over the two panels. I’m wondering if there’s something in the works with AC/DC to publicize the song as a part of the launch.6This song doesn’t have a US-based writer or publisher so, if it does appear on the service, I wonder if the song’s relationship with ASCAP suffices?

I expect technical hiccups and continued grumbling about SoundExchange’s involvement in private industry. But I’m thrilled to see some clarity arriving in how music gets licensed in the rising rocket of the podcast market. The organizations promise monthly announcements and updates, so there’s more to reveal. Watch this space.

Visit www.podcastmusic.com/rights-holders to get involved as a podcaster or rights-holder.