Tag Archive for: music

Five Reasons Why You Should Register Your Works With the Copyright Office

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Note: Please be sure to read to the end for an important update regarding a 2019 Supreme Court decision regarding copyright registrations.

I was recently roped into a Facebook feed by a composer client and asked to opine on whether composers and songwriters (and other creative artists for that matter) should register their works with the U.S. Copyright Office. After all, it was pointed out, that under the current Copyright Act registration with the Copyright Office is not required to obtain a copyright in a work. Under Section 102(a) “[c]opyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed….” So depending upon how you write your music, as soon as you put the pencil down, hit save on your computer or print out the music from your notation program, you have a copyright. Section 408(a) states that registration is permissive rather than mandatory. And registration can be costly as the current fee to register works online is $55.00 and that can add up if you create a lot of new music (or other copyrightable works). So, you may ask, “why should I bother to register?”

After all, as some of the commenting composers pointed out, you can do what is sometimes called a “poor man’s copyright registration” by mailing a copy of your work to yourself so that the postmark would demonstrate when you created the work. And identifying your work as “(c) 2018 Jane Doe, all rights reserved” is always advisable to put people on notice, whether or not you also register with the Copyright Office.   Moreover, copyright registration is not required to register your works with a performing rights organization (PRO) such as ASCAP or BMI. While this is true and it’s essential for songwriters and composers to register their works with a PRO in order to get paid for public performances of their works, there are some very powerful incentives built into the Copyright Act as to why you should also register your works with the Copyright Office.

First, a copyright registration is the best evidence for what you wrote and when you wrote it. The Copyright Office has published a bunch of “circulars” (i.e., pamphlets) online which explain various aspects of copyright law in plain English. As explained in Circular 2 a copyright registration consists of the application, the fee and the “deposit copy,” which is a copy of the work that’s being registered. Under Section 410(c), “[i]n any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” In plain English, the registration provides evidence of what was registered, when it was registered, who created the work and who owns the work as all that information is contained in the application and then put into the registration. And the deposit copy is proof of what was registered.  Your self-mailed copy of your music doesn’t have that evidentiary weight in court and what happens if you have to open the envelope to prove your case? Unless you mail multiple copies to yourself you won’t be able to do that trick again.

Second, copyright registration is a prerequisite to filing a lawsuit. Section 411 states that you can’t file a copyright infringement action unless you’ve registered the work you want to sue over. That’s a pretty powerful incentive to register your works. As a practical matter without a registration you have a right (a copyright) without a remedy. For example, if a client comes to me claiming that somebody ripped off their song the first thing I ask is whether they registered their composition with the Copyright Office. Why? Because if I were to send a demand letter to the allegedly infringing party and they check the Copyright Office records online for a registration (and all copyright registrations since 1978 are available online) and they don’t find one for the work they know that I can’t sue them. This lowers my negotiating leverage. Without the ultimate ability to sue the likelihood of my negotiating a favorable settlement (i.e., making the infringer stop and pay a pile of cash for past infringements) is limited.

Third, certain remedies under the Copyright Act are unavailable unless you register your work prior to the infringement taking place. How do you know when you’re going to be ripped off? You don’t. This is another powerful incentive for folks to voluntarily register that’s built into the statute. As to what goodies you’re giving up if you didn’t register prior to being ripped off, Section 412 states you can’t get “statutory” damages under Section 504(c) and you can’t get the ne’er-do-well to pay your attorney’s fees under Section 505. Statutory damages are those assessed by the Court which can range between $750 and $30,000 per infringement and up to $150,000 if the infringement is deemed to be “willful” (i.e., really, really bad). Statutory damages are available because “actual damages” (losses suffered by the plaintiff and profits made by the defendant) are often difficult — and expensive — to prove. And sometimes actual damages are relatively modest so that without the prospect of statutory damages it isn’t cost-effective to pursue a claim. And copyright infringement actions are very expensive. They can run tens of thousands of dollars if the case is resolved prior to trial and hundreds of thousands of dollars — or more — if the case goes to trial and then is appealed. Having an infringer face the prospect of many thousands of dollars per infringement plus having to pay the plaintiff’s attorney’s fees is a very powerful inducement to pre-litigation settlement.  But don’t just take my word for it, Circular 1, Copyright Basics, has a section on the benefits of registration.

Fourth, registration is easy. For most registrations, particularly if your work is “unpublished” (and when you first complete writing your music, whether it’s just in notation or in recorded form, it’s unpublished), you can complete the application, including uploading digital files of your deposit copies, online. While I wouldn’t generally recommend that individuals try to do a trademark registration on their own, I frequently recommend that individuals do their own copyright registrations as the process is much simpler and involves fewer legalities and technicalities than trademark registrations.

Fifth, it’s cheap. While $55 a pop can add up quickly if you write a lot of songs (or create a lot of other works), in many instances you can register multiple works under a single application. In addition, there are circumstances where, for example, you can register both an underlying musical work and the master recording of that work in a single application.  For general rules regarding the registration of multiple works in a single application, see Circular 34. With respect to registering musical compositions, including questions about the difference between a registration of the music and the registration of the recording, as well as guidelines regarding deposit copies and when you can register multiple songs in a single application, see Circular 50. For information about registering master recordings check out Circular 56 and if you want to know when you can register both the song and the master in the same application, you’ll want to read Circular 56a. Basically, if you want to register multiple musical works in a single application the copyright claimant (owner) has to be the same for all works and the author (or at least one co-author) has to be the same for all works.

However, there is a catch regarding the cost-effective registration of works as a collection. As described in Circular 34, for purposes of statutory damages the collection is treated as a single work. So if a particular person or entity infringed upon more than one work in the collection you can only collect one assessment of statutory damages, not an assessment for each work as would be the case where each work is registered separately.  However, since it’s often the case that only one work in a collection is infringed, the benefits of a collective registration will often outweigh any potential loss of statutory damages. But if you believe that all the songs in your collection will generate a lot of income and get a lot of exposure making them potentially ripe for ripping off (if you’re signed to a major label, for example), then it may be worthwhile to register each work separately.

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Since I originally published this blog post on March 7, 2018, the U.S. Supreme Court issued a decision on when a copyright registration becomes effective for purposes of Section 411(a) of the Copyright Act.  On March 4, 2019, the high court issued its decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC. This decision resolved a split among the circuits as to whether a copyright registration becomes effective for purposes of being able to file an infringement action in federal court when the application is submitted to the Copyright Office (as the Fifth and Ninth Circuits had ruled) or when the Copyright Office actually issues a registration (as the Tenth and Eleventh Circuits had held).

Writing for an unanimous Court, Justice Ginsberg wrote that a copyright “registration…has been made”  only at the time the Copyright Office issues a registration – and not merely when the application has been filed under Section 411(a):

Under § 411(a), “registration … has been made,” and a copyright owner may sue for infringement, when the Copyright Office registers a copyright. Section 411(a)’s first sentence provides that no civil infringement action “shall be instituted until preregistration or registration of the copyright claim has been made.” The section’s next sentence sets out an exception to this rule: When the required “deposit, application, and fee … have been delivered to the Copyright Office in proper form and registration has been refused,” the claimant “[may] institute a civil action, if notice thereof … is served on the Register.” Read together, § 411(a)’s opening sentences focus not on the claimant’s act of applying for registration, but on action by the Copyright Office—namely, its registration or refusal to register a copyright claim.If application alone sufficed to “ma[ke]” registration, § 411(a)’s second sentence—allowing suit upon refusal of registration—would be superfluous. What utility would that allowance have if a copyright claimant could sue for infringement immediately after applying for registration without awaiting the Register’s decision on her application? Proponents of the application approach urge that § 411(a)’s second sentence serves merely to require a copyright claimant to serve “notice [of an infringement suit] … on the Register.” This reading, however, requires the implausible assumption that Congress gave “registration” different meanings in consecutive, related sentences within a single statutory provision. In § 411(a)’s first sentence, “registration” would mean the claimant’s act of filing an application, while in the section’s second sentence, “registration” would entail the Register’s review of an application. We resist this improbable construction.

139 S.Ct 888-889 (citations omitted). While this approach resolves the circuit split the Court did note that it can take seven months or more from the time an application is submitted to when the Copyright Office issues a registration. Another reason to register as soon as possible to avoid any problems with the Copyright Act’s three-year statute of limitations under Section 507.

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As both this article and the Copyright Office circulars are intended to provide only general guidance, you should consult your local copyright lawyer with any specific questions about registrations.

 

 

The Question Songwriters Should Ask Obama at SXSW

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This Friday, President Obama will be delivering the keynote address at this year’s South by Southwest (SXSW) Interactive Conference in Austin, Texas. Although originally just a music conference, SXSW now has three overlapping sections, Interactive, Film and Music. While it is doubtful that the President will be taking questions from the audience, songwriters and other musicians who may attend the Interactive portion of the should question him about what his Justice Department has proposed to do to them.

For over a year the Justice Department has been undertaking a review of the decades-old consent decrees that govern ASCAP and BMI, neither of which has been amended since the dawn of the digital age. Those of us who represent songwriters and publishers had been cautiously optimistic that the restrictions would be lessened. Indeed, in February 2015, the Copyright Office, in its comprehensive music licensing study and report, Copyright and the Music Marketplace (the “Music Study,” which I summarized and critiqued here), recommended several modifications.

However, last summer DOJ, of its own initiative, threw in a monkey wrench when it asked for comment on the possibility of ASCAP and BMI licensing entire works even where either performing rights organization (PRO) had only been assigned a portion of the copyright to the particular song by its members. This is referred to as “100% licensing.” Traditionally, music publishers and the PROs that represent them only license the percentage of the rights in a particular song that they own, which is referred to as “fractional licensing.”

On January 29, in response to a January 12 request of Rep. Doug Collins (R-GA), the Register of Copyrights, Maria A. Pallante, issued a 29-page report, replete with footnotes, Views of the United States Copyright Office Concerning PRO Licensing of Jointly Owned Works (the Report). The Report addresses the PROs and joint licensing more specifically than was done in last year’s Music Study. On February 4, Rep. Collins forwarded the Report to Attorney General Loretta E. Lynch for consideration by the Antitrust Division, which has oversight over the PRO consent decrees and is conducting the review of them.

In short, the Copyright Office stated in no uncertain terms that DOJ’s proposed 100% licensing scheme is a really bad idea that is based upon a misunderstanding of both the Copyright Act and plain old contract law, as well as long-standing music industry custom. The Copyright Office’s takedown of DOJ’s proposal is impressive. I’ll give you a few highlights below.

The Office believes that an interpretation of the consent decrees that would require these PROs to engage in 100-percent licensing presents a host of legal and policy concerns. Such an approach would seemingly vitiate important principles of copyright law, interfere with creative collaborations among songwriters, negate private contracts, and impermissibly expand the reach of the consent decrees. It could also severely undermine the efficacy of ASCAP and BMI, which today are able to grant blanket licenses covering the vast majority of performances of musical works – a practice that is considered highly efficient by copyright owners and users alike.

And that was just the top of page three! The Report goes on to discuss the divisibility of individual copyright rights and that the default rule is that each joint owner of a work may license the entire work subject to a duty to account to the other owners for their proportionate share of the proceeds. Against that backdrop, the Report states:

While the 1976 Act establishes default rules for joint works, it must be remembered that they are subject to the Act’s express provision that a copyright, and the exclusive rights thereunder, can be divided and separately owned. As a leading treatise explains, the default rules within the Act are merely a” starting point, “ with collaborators… free to alter this statutory allocation of rights and liabilities by contract.”

Addressing industry custom among co-writers of songs, the Report also noted:

The co-authors of jointly created musical works often enter into agreements that define the percentages of copyright ownership of each co-author and provide that each will retain control over his or her “share” of the work. For example, a typical clause might stipulate that each contributor “shall administer and exploit only [his or her] respective ownership share” of the work. The “administration” of the copyright is commonly understood in the music industry to encompass the right to issue licenses and otherwise exploit the song and collect royalties from those uses.

Turning specifically to the interpretation of the ASCAP and BMI Consent Decrees, the Report stated:

Even setting aside the express mandate of the Copyright Act, the decrees – like any contract – must be interpreted in light of the prevailing customs of the industry. Thus, while the consent decrees require ASCAP and BMI to license users to publicly perform their respective “repertoires,” each consent decree describes those repertoires in a manner that can, and should, be read consistently with the practice of fractional licensing.

Again turning to basic contract principles, the Report stated:

The PROs’ practice of fractional representation is consistent with the basic legal precept that one cannot validly convey rights to more than what one owns or controls….. Accordingly, the ability of ASCAP or BMI to license public performances for their respective members’ works is ultimately constrained by the terms of songwriter, publisher and administration agreements entered into by those members, which, as explained above, typically reflect understandings of divided ownership and fractional licensing.

And these choice comments only get us about half way through the Report! It goes on in this vein and addresses the practical concerns that ASCAP and BMI do not have contractual privity with non-members and are not able to account to any non-members for their interests in a 100% licensing regime. Here’s the heart of what I submitted to DOJ last November during the public comment period – about 27 pages shorter than the Report but making many of the same points:

While it is true that absent a written agreement to the contrary, an author of a joint work may license 100% of the rights in that work subject only to a duty to account to that author’s co-writers for their share of the proceeds, that is not how the music industry operates. For decades, songwriters and publishers have routinely entered into, and continue to enter into agreements where each party separately administers that party’s interest – and only that party’s interest — in the particular song.

In the area of synch licensing, music supervisors and other music clearance professionals know that they need to obtain permission from all parties that separately administer a portion of the copyright in the song. Similarly, mechanical licenses are issued on a fractional basis where multiple publishers separately administer their interest in a particular work. ASCAP and BMI likewise administer only their shares in the song and price their licenses accordingly.

ASCAP and BMI operate on a fractional licensing basis because contractually they cannot license greater rights than they are granted by the underlying rights holders, the music publishers. To require ASCAP and BMI to license on a 100% basis not only flouts decades of industry practice but vitiates the myriad agreements voluntarily entered into by songwriters and music publishers . It would also require songwriters and publishers to be involuntarily subjected to the licensing and payment terms of a PRO other than the one the parties chose to represent their interests in the particular works.

At a recent meeting of the AIMP [Association of Independent Music Publishers], we were informed that it in the Justice Department’s view, if the songwriters and publishers either do not – or cannot – agree to 100% licensing, ASCAP and BMI simply will not be able to represent the works where that is the case. If true, that would be a horrendous result, mandating that DSPs and other licensees would have to engage in the grossly inefficient process of directly licensing innumerable works from each individual rights holder. Given the way most popular songs are now written, this would require separate negotiations with multiple rights holders for the performance rights in each and every song rather than two or three PROs for all songs.

In sum, 100% licensing is contrary to longstanding industry practice and countless voluntarily negotiated contracts. It would turn a relatively straightforward and efficient licensing scheme for performance rights into one that is fractured, unwieldy and unworkable.

The Report reaches the same conclusion:

In sum, an interpretation of the consent decrees that would require 100-percent licensing or removal of a work from the ASCAP or BMI repertoire would appear to be fraught with legal and logistical problems, and might well result in a sharp decrease in repertoire through these PROs’ blanket licenses. It would seemingly punish copyright owners who have chosen to exercise their rights under the Copyright Act to manage their separate interests through the PRO of their choice.

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Songwriters are unique among artistic creators in that about 75% of their income is regulated by the federal government. The biggest chunk of income songwriters receive is from public performances licensed by the PROs, of which the two largest, ASCAP and BMI and accounting for about 90% of the market, operate under consent decrees. The second biggest chunk, income songwriters receive from the purchase of recordings (whether in the form of CDs, LPs or downloads), is subject to a compulsory license with rates set by the Copyright Royalty Board. By contrast, recording artists, filmmakers, novelists, dramatists, and other fine and visual artists are under few, if any, federal restrictions on their livelihoods.

There are myriad articles in the popular press about the paltry royalties songwriters receive from streaming services such as Spotify, Pandora and YouTube. Few address the fine points of the PRO consent decrees and other statutory licensing regimes that form the backdrop for these payments. The Copyright Office, in its Music Study, recommended changes to the current music licensing regime that would relax restrictions on songwriters and music publishers and enable them to obtain income that more closely reflects fair market value.

It is somewhat telling that the President will be speaking not at the SXSW Music conference for creators of music, but at the Interactive conference, dominated by companies that use music and benefit from a licensing regime that keeps fees low. So the question songwriters should ask is “when will the government, specifically your Justice Department, stop screwing us?”

Synching Up Copyright, Contracts, Amazon and Warner Music Group

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A little over a week ago, I attended through meetup.com, a panel discussion on synchronization licensing. As a refresher, synchronization licensing, or “synch” licensing, is the permission required to incorporate copyrighted music into audio-visual works, such as films TV shows, ads, videogames and, yes, YouTube videos. The panel was put together by Legal Hackers and included computer types, artists (including one who produced a video of a 7-foot clown singing – quite well, I might add, a cover of Lorde’s “Royals”) a music publisher and a copyright lawyer.

If this discussion had occurred a few years ago, I would have expected it to have a copy-left, copyright-is-bad slant. However, in this digital, DIY climate, even the video remix artist on the panel recognized the importance of copyright and was quite knowledgeable about synch licensing. Everyone seemed to agree that artists should be paid, but obtaining synch licenses is a real obstacle because of what economists would call high “transactions costs.”

Proposed solutions included compulsory licenses, as with audio-only “mechanical” licenses” like those issued by The Harry Fox Agency and/or some form of “blanket” license similar to those that ASCAP and BMI provide. The problem is, many artist contracts have approval rights for synchs because unlike a simple cover, putting their music to video, especially if it’s to a product, service or cause they don’t like, can drastically change the meaning of the music. So, there’s no clear solution yet, but it will probably involve technological improvements in song identification and licensing procedures.

Speaking of contracts that make it more difficult for creators to earn income from their works, Amazon is launching a new streaming service to compete with the likes of Spotify, Pandora and YouTube. I was recently asked by a client to advise as to whether he should sign up. Having reviewed the Amazon contract, the executive summary of my advice, in which others concur, is “don’t.” Among other things, Amazon states it can change the royalty rates at any time. That’s bad enough. But the contract also says you can’t take your works out of their service unless you also take your music down from all the other services. That’s even worse.

Amazon is obviously a 900 pound gorilla with very clever lawyers but I think they may be a little too clever here as other lawyers are pointing out that these provisions are perhaps a tad overreaching. But going back to basic economics, moral outrage from the blogosphere won’t make Amazon change its terms. That will only happen if content owners refuse to sign up and Amazon doesn’t have enough music to offer to be able to compete.

And speaking further of contracts, it’s just been reported that Warner Music Group’s labels have entered into a $11.5 million settlement with various artists, including Sister Sledge, relating to payment for distributions of downloads and mastertones (ringtones). This class action lawsuit focused on whether these distributions were “sales” or “licenses” of the artists’ master recordings. In a typical recording contract, sales are typically paid in a 10-15% of the sale price and subject to all forms of deductions and recoupment, depending upon the language of the contract. License fees, on the other hand (such as a synch license for using the song in a film or TV show, for example), are typically split 50-50% between the label and the artist. In older recording contracts, the language may not be clear as to how these newer technologies should be handled. You can guess which side made which argument.

The takeaway: you – or at least your lawyer – should always carefully read any contract.

Pouring Out My Soul In Song

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Of course, they’re forecasting torrential rain tomorrow. Just when I’ve got my first gig since July. Tomorrow night is my latest return engagement at The Cornelia Street Café in Greenwich Village. I’ll be doing a set of my own songs at 6:30pm with a little teaser at about 6:15pm for anyone who gets there after we do our sound check. The prognosticators of precipitation are predicting that most of the deluge will occur during the daytime. Hopefully it’ll be somewhat dry by the time any of you may venture forth to hear me play. And I’ll be dry at least until my set is done.

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….

The Blog Is Back

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Dear Readers:

It’s been way too long since I lasted posted anything on my blog. It’s not that there hasn’t been anything interesting to write about in the realm of copyright, music, my cats or any other myriad topics like “why can’t Roger Federer convert two match points?” No, I’ve just been too focused on other things: launching a new business for classical and jazz composers, assisting my clients with their legal issues, teaching college classes on music publishing and the recording industry, losing 20 pounds, doing a gig at Cornelia Street Café, writing new songs in preparation for an October 19 gig and finally learning to hit a one-handed topspin backhand.

However,  my friend and professional butt-kicker, Nancy Tierney, tells me that if I really want my law practice and my new business – which I hope to launch in the beginning of next year –  to soar, I’ve got to keep this blog thing going on a regular basis.  So, I’m going to update the blog by starting with some re-posts of articles that originally appeared on BMI’s Songwriter101.com site, where I am a member of the “faculty” (check out the site in a month or so for some new articles on Grand Rights and other topics) as well as some new musings written just for you.

So, if you’re interested in music, tennis, copyright and cats, please check back here regularly.  And if you haven’t already done so, please take my Copyright Quiz. Nancy says I should post something once a week and I’m going to try very hard to do it because I really don’t want bruises on my behind.  Comments are always welcome and appreciated. Thanks for reading.

My Jewish Christmas Song

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I’ve decided I’m going to be the next Internet sensation. That’s right, me: a forty-something copyright and entertainment lawyer. Hey, if Susan Boyle can do it, why the hell not?

There’s a method to my madness. I’ve spent the better part of the last two decades helping composers and songwriters do what they do, as a music publisher, an attorney at BMI and now, as a lawyer in private practice. And I’ve done my best to keep up with all the changes that the digital revolution has wrought, from sites to sell sheet music and CDs to Facebook, Twitter and other social networking arenas, to the sites that help keep track every kind of statistic through nifty analytics.

But, it’s one thing to know what composers and songwriters go through and tell them how about the various tools available to them. It’s another thing to actually do it yourself. So, I decided the best way to really understand and to advise clients was to become one.  From doing the recording and the video to the inevitable viral release to having the means to connect with and market to both of my fans.   And all because I hate sending Christmas cards!

Let me explain.  The song I’m about to release to the world is a little ditty called “Let’s Have a Jewish Christmas.” It’s destined to become a holiday classic, right up there with “Grandma Got Run Over By a Reindeer” and “Jingle Bell Rock.” I assayed the role of DIY musician from start to finish – attempting to do for myself all the things I’ve either advised others to do – or had a staff of people to do it for me. OK, I did hire some elves along the way, but more on that in our next installment….

The first thing I did was to call up my friend, Dean, to line up some studio musicians to record two tracks: the Christmas song and one other.  As a fellow musician, I assured Dean I’d pay the musicians “scale” for the recording. Easier said than done.  Have any of you tried going to the AFofM site to figure out what “scale” is for an individual track to be released as a download?  Well, I’m a lawyer in the music biz and I couldn’t figure it out!  Dean, who’s been a member of Local 802 for more years than he’d care to admit and who rehearses his big band at the union hall, couldn’t figure it out, either!  So, after a collective shrug we just agreed upon a number that we thought reasonably approximated “scale” and left it at that.

Now, as a lawyer, I always advise clients to make sure everybody understands everything up front and to get it in writing, even if it’s just scribbled on a napkin.  Naturally, based upon Dean’s assuring me that “everything would be OK with the guys,” I acted like a musician and ignored my own wise counsel.

For those of you who’ve never experienced the joy of being in a recording studio it’s simultaneously  exhilarating, scary, tedious, frustrating  — and fun.  Especially as the artist, songwriter, producer and label all rolled into one. Yes, folks, you can have total artistic control – as long as you’re signing the checks.

We recorded two songs, with five musicians: me on piano and vocals, along with a reeds, trumpet, bass and drums. And we recorded the songs live.  Even so, it took nearly three hours to record six minutes of music and another three and change to mix and master the tracks.  And that’s actually moving at a brisk pace.   We recorded about a half dozen takes each and then did some overdubbing and punches – – and had doughnuts and coffee. And as fun as working with good musicians is, I actually had an even better time after I sent the boys on their way and I was just working with my recording engineer, Jim, cutting and pasting among different takes and cleaning things up while trading Monty Python quotes.

After my hired hands left, I realized I had this freshly tuned grand piano at my disposal that sounded really great. So, as label and producer, I authorized myself to record a pretty ballad with just me singing to my piano accompaniment.  And I did it live, one take, no punch. Another three minutes of music recorded in…. three minutes! I felt like a pro!

However, having a freshly burned master in my hand was just the beginning of my very odd Odyssey. After all, what’s a track without a video and I still had no online infrastructure to capitalize on the notoriety that’s sure to come my way…..

Next: making the video….

Whack-a-Mole Reigns Supreme

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Dear Readers:

Welcome to my blog. I figure since I’ve got one now, I’d better put something up while ruminating on what to post next. So, below is an article I originally wrote back in June when the Viacom v. YouTube decision originally came down.

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In June, Louis L. Stanton, the federal judge hearing a copyright infringement lawsuit brought by Viacom and other “content owners” against YouTube, issued a 30-page opinion in YouTube’s favor.  This decision will affect anyone who makes a living by creating or marketing any kind original, creative work, like TV shows, movies and music.

More than two years and many millions of legal fees ago, Viacom, along with Paramount, BET, the English Premier (soccer) league and some music publishers, sued YouTube and Google, which had paid more than $1.6 billion for YouTube and the privilege of being sued.

Unless you’ve been living in one of the few caves without broadband for the past few years, you know that YouTube is the repository of millions of videos of varying degrees of quality, put up there by ordinary folks like you and me.  And many of the more popular videos are excerpts of TV shows like “The Daily Show” or are amateur videos that include music from their favorite bands.    Sounds like a clear case of copyright infringement, right?  Well, that’s where a fairly arcane section of the Copyright Act comes in.  Section 512(c) provides the YouTubes of the world with a “safe harbor” against copyright infringement claims if they follow certain procedures.

And what are these procedures?  Basically, an entity such as YouTube that has “information residing on systems or networks at the direction of users” has to have a “designated agent”, like an e-mail address where copyright owners can send a notice that the site has posted infringing material.  If the site promptly takes down infringing material after receiving a notice of infringement in accordance with the statute, then it won’t be liable for copyright infringement.

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