The atmosphere had the sound and feel of a world music rock concert that just happened to have some Jewish prayers mixed in. The two female cantors had lovely voices and ably accompanied themselves on guitar, such strumming being a prerequisite at Reform temples these days.  Their backing band consisted of piano, violin, clarinet, upright bass, percussion and four singers. It was great to hear music in temple that was sung in tune for a change.

Everything went as planned the following morning. No lines were flubbed; no Torahs dropped. They have a lovely tradition at the temple where the Torah is passed from generation to generation. Kayla is fortunate to still have all four grandparents, who passed the sacred scroll to my brother and sister-in-law and then to my niece.  The band was smaller on Saturday — only one cantor — but the mood remained festive as the pianist, at times channeling Vince Guaraldi, made me feel as if I were at “A Charlie Brown Bar Mitzvah.” I somehow refrained from doing my Snoopy dance on the piano.

Now, Kayla is a very bright, diligent student so we all knew that her chanting of the Torah and Haftorah portions, as well as the blessings before and after, along with her commentary on the torah portion, would be technically perfect and error-free. But what was a revelation to me and to her proud papa as well, was the poise and maturity with which she handled these duties.

Many kids  – and adults for that matter — tend to rush, speak in a soft monotone and don’t make eye contact when they’re compelled to do any kind of public speaking. And of my brother’s two girls, the younger one, Amelia, tends to be the more extroverted of the two. However, Kayla turned out to be a polished pro – better than most candidates on the stump. She chanted the Hebrew clearly and in key and she delivered her commentary deliberately, varying her tempo and modulating her voice for emphasis. And she made lots of eye contact! Well done!

However, even the Rabbi conceded that the day’s Torah portion, Lech Lecha  (Genesis, chapter 12) is a troubling one as Abraham, the patriarch of our people, doesn’t come off too well. To save his own hide, he seems to have had no problem pimping out his wife to the Egyptian Pharaoh as long as she said Abraham was her brother, not her husband. In exchange for Sarah’s having to fend off the king’s booty call, Abraham received some nice booty of his own: sheep, oxen, camels asses and servants.

After services, there was a buffet lunch in the basement of the temple. And something akin to a miracle occurred there. Two of my cousins, a brother and sister who hadn’t seen each other in twenty-five years, sat down together and amiably chatted for about an hour as if only a few days had passed since they’d last spoken. Thrilled and amazed, I nonetheless had visions of airborne swine, of small simians soaring from my nether regions and of meteorological impossibilities in the netherworld.

At the reception, the adults and the kids had separate, adjoining rooms — brilliant and highly recommended — and the kids took part in a live-action game of Clue. I found Miss Scarlet most fetching, as many of us alleged adults ventured into the kids’ room to snarf some of their snacks as they had chips, guacamole and salsa — and sushi, too.  The kids were ushered in for the ritual blessings over bread and wine and my brother, whom I’d never seen look happier, delivered a very moving toast.

But the best part of the evening to me was that both the kids and adults had ping-pong tables. Although I played some competitive table tennis when I was a teen, I’m a couple of decades out of practice. Suit and tie isn’t the best athletic wear and wine probably wasn’t the optimum pre-match hydration libation but was more enjoyable than gulping Gatorade. Nonetheless, after warming up a bit, I got my forehand cranking and vanquished all comers not just at ping pong, but at beer pong as well, that staple of college recreation I first encountered in my brother’s Dartmouth days.  His good friend, Steve, an excellent beer-ponger, and I went at it, substituting glasses of red wine for plastic cups of beer – and I emerged victorious by a margin of two games to one!

If you’re curious as to what this lawyer’s songs are like and how and why I go about writing them, you’ll have to check out the blog post on the Cornelia Street site, which, of course links you to their earlier interview with me from my last outing in July. So this is kind of a meta–blog post of a quasi-meta-blog post, if you will. And while my lawyerly paranoia always makes me feel like I’ll be playing to a room where my audience consists solely of the Cornelia Street staff, it hasn’t happened yet and people in addition to my friends and relatives usually have a good time. We certainly do up on the bandstand.

And while I’m grateful for the recognition of my talents as an attorney and teacher, anyone who writes and performs his own music wants to be appreciated as an artist as well. So, come on down tomorrow if you can or tell your New York friends to check it out. My dear friend, Cathy Thorpe, will be sharing the stage with me, singing the girl’s tunes as my soprano ain’t what it used to be. And Jerry DeVore and John Bishop are a great rhythm section on bass and drums, respectively. And I’ve been told that tomorrow is the anniversary of President Ford signing the Copyright Act of 1976, our current copyright law, which makes for a truly auspicious occasion.

And please also check out my prior posts as well, leave a comment in the box below and maybe even take my copyright quiz. It’s fun, free and you might learn something. And now, back to the woodshed….

Let me explain. Try to remember a time before there was iTunes. It was truly the darkest of the dark ages for the music business, especially the recording industry.  There was this relatively new format, MP3, that allowed music files to be compressed so that they could easily and quickly be distributed over the internet. And then there was this thing called Napster that allowed millions of people to download millions of copyrighted musical tracks of their favorite artists – for free! And then there were its progeny like Grokster, Gnutella and Kazaa spreading the gospel of free music.

The labels justifiably cried foul because this “sharing” was really stealing despite the sophistry of Google shills such as Larry Lessig and his ilk. But the labels largely had themselves to blame.  Why? Well, Napster, Grokster, SterSter (ok, I made that one up) and all the others wouldn’t have gained so much traction if the labels had actually listened to their customers who were demanding the availability of their music in this new format. Instead, what did they do? They dragged their feet, locked up the content with “digital rights management” tools or DRM and formed alliances that distributed only some, but not all of the major label’s content and largely locked out the indies. With no really good legitimate download service to cater to this market, the pirates naturally stepped in. The labels spent the next several years wringing their hands, suing their customers and clinging to these label-owned download services, the names of which I don’t even remember anymore.

Enter Steve Jobs. He created this thing called the iPod. Perhaps you’ve heard of it. Anyway, Apple’s goal wasn’t to sell music but to sell lots and lots of iPods – which they did. But they needed the music to be legitimately available for people to put on their iPods. So he created iTunes. Yes, it took someone outside of the record industry to finally create a viable, legitimate download service and to get the labels  on board. And while some naysayers in the industry said you couldn’t compete with free, others of us who drink bottled water (I suspect Steve Jobs did, too) maintained you can compete with free based upon quality and service. And he was right. And, at least some people started paying for music again. And it was good.

So what’s wrong with this picture? Well, nothing that time and a little market evolution can’t fix. Remember, Jobs’ goal was to sell iPods, not music. So he priced the downloads cheaply and at a one-size-fits-all price point of 99 cents. And as someone who has been – and soon will be again – a music publisher, he created a pass-through so that iTunes only got permission from the labels. The music publishers who represent the songs that are recorded by the labels and the songwriters who create them didn’t get paid by iTunes but had to rely on the labels to account for their share. OK, the music publishers were a little groggy when this was going down and didn’t protect their turf as well as they could have. Why is this bad? Well, record labels have occasionally been known to employ some creative accounting practices when it comes to paying artists and publishers. But these things can and will be addressed and fixed.

The larger issue is a cultural one. Awhile back a colleague of mine and I were musing about the business over single malt scotch. He’s a few years older than me and told of how appliance stores used to throw in a free box of Tide (remember powdered laundry detergent?) with every washer. Like Steve Jobs, all the appliance store cared about was selling the hardware. My friend said that music has become like the box of Tide. Not an article of value in and of itself, but merely the ancillary content to be run on the hardware. While it’s great that people are paying for this “content”, treating music as a fungible commodity ultimately devalues it and the craft and artistry of those that create it. That’s why I feel Steve Jobs’ legacy in the music business is mostly – but not completely – a positive one. At least not yet.

Wrong. To use pre-recorded music in an audio-visual work, whether it’s a feature film, TV show, video game or a video on a web site, like YouTube, you need the permission of both the copyright owner of the recording (typically a record label) and the permission of the copyright owner(s) of the underlying song that’s embodied in the recording (typically one or more music publishers).  Why? Because the Copyright Act says so.  The permission that you need is called a “synchronization” license – as you’re synchronizing music to picture – or a synch, for short.

To better understand this, think about songs that have been “covered” a lot. Most jazz fans like me are familiar with the Johnny Hartman recording of Billy Strayhorn’s Lush Life, which many think is the definitive rendition.  My favorite is Nat Cole’s – the original, not the Cee-lo Green remix although I like that, too.  But there are dozens of recordings of that standard to choose from, including covers by Johnny Mathis, Linda Ronstadt and Robert Goulet.  The reason for so many covers is that the song is itself a copyrighted work, with a legal life separate and apart from any individual recording of it. And the copyright to the song is likely owned by one or more music publishers.

Therefore, in order to secure all the rights you need have your cat struttin’ away, you have to get the permission of the owners of the song, EMI Longitude Music and Rockin’ Bones Music, Inc. (at least that’s who BMI’s web site says are the music publishers) and permission of the owner of the particular recording of the song, EMI Records.  That means in order to put the track of your choice to your swingin’ cat video, you need to get three companies to dance: the record label and two music publishers.

Well, you say, “I’m not selling the video. Do I still need permission? And if I just put it up on YouTube or my own web site, what’s anybody really gonna do about it?” You’ll have to read my next post to get the answers.  Stay tuned.

© 2011 Marc D. Ostrow

Anyway, her boyfriend is a jazz musician and she’ll occasionally pepper me questions about the music biz or point out interesting news articles, like this one from NPR.

Part of the article dealt with why some popular TV series, especially those that used a lot of period pop music like WKRP in Cincinnati and The Wonder Years haven’t been released for home video.  It doesn’t have to do with any producer or actor disputes. Believe it or not, the reason is the music. It’s too expensive – or so the producers of those shows claim.

When I was at Boosey & Hawkes, I personally experienced both sides of the coin.  At the time, we licensed some pretty cool music, including Steve Reich and some other works to be used as underscore in The Sopranos. But when the shows were released on DVD, they stripped out the music – and not just the B&H tracks – and replaced it with cheaper library music.   It wasn’t that the music supervisors and clearance people weren’t aware of the need for home video rights.  Home video and other options are typically negotiated upfront.  But the surprising thing here was that the Sopranos people didn’t even try to negotiate with us. They just assumed clearing the tracks would be too expensive and replaced them.  This happens a lot in TV these days.

I find this troubling as the consumer is buying a product that is different from what they saw on TV and what they expected to purchase. Imagine if they stripped out James Gandolfini and put in some other actor for Tony Soprano and didn’t tell anyone? OK, the music isn’t as important as the lead actor, but try telling the directors of these episodes that their artistic vision is being altered for the sake of saving a few shekels.

On the other hand, we were able to get some hefty fees from the producers of Monty Python’s Flying Circus when they came to “renew” a home video license and my crackerjack synch licensing executive – or Senior Music Crisis Counselor as she preferred to be called – discovered there was no license to renew. I would like to think we’d have been a bit more charitable if those guys were up front about their past infringements rather than trying to slip one by us.

It doesn’t serve the creators of the shows or the public who wants the ability to enjoy them again to have a system where music has to be stripped out. Given the ability to negotiate options up front for home video and other releases and the possibility that less expensive music could be substituted, the producers, music publishers and labels should be more flexible in licensing these rights, especially so that classic shows that used lots of good music can be reissued and enjoyed by past and future fans.