ASCAP's Bill Of Wrongs

from the stage-and-symptom-of-the-grieving-process dept

ASCAP has published a Bill of Rights for Songwriters and Composers, which, unfortunately, seems to be more like a bill of "wrongs."

Just as citizens of a nation must be educated about their rights to ensure that they are protected and upheld, so too must those who compose words and music know the rights that support their own acts of creation. Without these rights, which directly emanate from the U.S. Constitution, many who dream of focusing their talents and energies on music creation would be economically unable to do so - an outcome that would diminish artistic expression today and for future generations.

Which U.S. Constitution is ASCAP reading? The U.S. Constitution provision says, "the Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." There is nothing in the U.S. Constitution to suggest that copyright law has anything to do with protecting artists' natural rights, copyright hardly exists for a limited amount of time anymore, and Thomas Jefferson and James Madison were quite skeptical of the concept.

And the claim that such laws are required to make a living as an artist is very debatable, and I'd beg to differ. There was art before copyright law existed, and many artists are making their living today despite copyright law (rather than because of it).

At this time, when so many forces are seeking to diminish copyright protections and devalue artistic expression, this Bill of Rights for Songwriters and Composers looks to clarify the entitlements that every music creator enjoys.

Who is seeking to devalue artistic expression? Price and value are not the same thing. Just because the economics of digital goods have pushed the price of music towards zero (the marginal cost) does not mean that music no longer has value. This sort of statement needs to be substantiated.

1. We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.

Why? In what other industries do creators maintain control over their creations after they reach consumers? Lenovo has no right to be compensated for the use of my laptop or to share in the revenue I generate through developing software. This is not a given.

2. We have the right to license our works and control the ways in which they are used.

Again - why? How many other industries control the way their works are used? This is not a given.

3. We have the right to withhold permission for uses of our works on artistic, economic or philosophical grounds.

This is not the purpose of copyright law at all, especially since it’s supposed to be for a limited time. This, in fact, is a restriction on artistic expression. Though it may be troubling to have a work associated with something that you don't agree with, I believe that freedom of speech is more important for artistic expression than total control.

There are defamation and libel laws for serious abuses.

4. We have the right to protect our creative works to the fullest extent of the law from all forms of piracy, theft and unauthorized use, which deprive us of our right to earn a living based on our creativity.

Theft and copyright infringement are not the same thing. And the sharing and spreading of music through digital channels is natural and, more importantly, does not deprive artists of their right ability to earn a living.

Bad, out-dated, obsolete business models based on artificial scarcity deprive artists of their right ability to earn a living.

(I'm not sure if this is a "right" because they seem to be confusing royalties and salaries.)

5. We have the right to choose when and where our creative works may be used for free.

Why? Coca-cola doesn't have the right to determine whether its products can be given away for free as part of a promotion after a pizza store purchases them. This is not a given.

6. We have the right to develop, document and distribute our works through new media channels - while retaining the right to a share in all associated profits.

Wow, that started off great, but the ending sounds like Billy Bragg's whining in the New York Times. The phrase "all associated profits" seems quite overarching. This sounds like musicians claiming that MySpace and Bebo owe them money for their success, while denying that the reverse could ever be true, that a new media company would be entitled to share in "all associated profits" of an artist it enables to succeed.

Double standard much?

7. We have the right to choose the organizations we want to represent us and to join our voices together to protect our rights and negotiate for the value of our music.

Excellent! I actually agree with this whole-heartedly. I do not want ASCAP to represent me!

8. We have the right to earn compensation from all types of "performances," including direct, live renditions as well as indirect recordings, broadcasts, digital streams and more.

This sounds like Viacom's misunderstanding of the difference between content and communication. ASCAP is treating the Internet like other forms of broadcast, but the Internet isn't a broadcast medium. It's a communications medium. When it comes to communication, the idea of using copyright to restrict content gets weird in a hurry. Royalties are not the answer for the digital age.

9. We have the right to decline participation in business models that require us to relinquish all or part of our creative rights - or which do not respect our right to be compensated for our work.

Sure you do, but that doesn't mean you'll make any money. Economics aren't about what you want to happen, or what you think should happen. Economics are about what is happening. Business models that don't make sense given the economics won't succeed. Of course you have the right to choose whatever business model you like, but that doesn't mean it will be successful or that it should be protected by copyright law.

The end of that statement sounds like another case of confusing royalties and salaries.

10. We have the right to advocate for strong laws protecting our creative works, and demand that our government vigorously uphold and protect our rights.

Of course you do, but again, I don't think it's a great idea if you subscribe to this "bill of rights." Moreover, consumers also have the right to advocate for better laws that protect their interests and vigorously uphold and protect their rights, which our current laws fail to do.

Artists can advocate whatever they want, but it's a bad idea to advocate the opposite of what your fans want.

Conclusion

This supposed bill of rights is really just an assertion of the status quo by those who depend on copyright law to protect their obsolete business models. If people in the music business could only realize that they're in the business of providing an enjoyable experience surrounding music, rather than trying to control and monetize every possible use of art, they might open up to new business models that make sense rather than whine about the fact that their current business models don't work anymore.

This isn't a bill of rights. It's a stage and symptom of the grieving process.

Signing this and, worse yet, living by it, would be an economic and ethical mistake for any songwriter or composer.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Steve R. (profile), May 30th, 2008 @ 1:21pm

    Bill of Extortion

    Excellent post. One conceptual addition. One section of this Bill of Extortion reads: "At this time, when so many forces are seeking to diminish copyright protections and devalue artistic expression, this Bill of Rights for Songwriters and Composers looks to clarify the entitlements that every music creator enjoys."

    Copyright has not been diminishing, the legal trend has been to give copyright holders ever greater rights at the expense of the consumer. If the artists truly seek to clarify the entitlement that every music creator enjoys, let's go back to the original version of the copyright law.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, May 30th, 2008 @ 1:52pm

    And I have the right...

    to take as much music, movies and whatever falls in the digital realm.

    Catch me if you can, or better, before I share with the rest of the planet.

    Sorry, this is already being done :)

    go TPB!!!!

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Inky, May 30th, 2008 @ 1:54pm

    architecture

    In what other industries do creators maintain control over their creations after they reach consumers?

    Most architects retain control of their drawings and other documents after the building is built. While they don't control the actual building, they do control their creative work. However, I don't consider it a right, it's something negotiated in every contract.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, May 30th, 2008 @ 2:06pm

    Re: Bill of Extortion

    While we are at it, lets get rid of the DMCA and other BS copyright crap. Nothing says "fuck you" more than a company taking your rights away so they can extort more money out of you.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    interval, May 30th, 2008 @ 2:16pm

    Ha ha

    Look at the funny suits lining up with people like Thomas Jefferson trying to make like they are defending freedom. Silly suits. Declarations are for people, not suits.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Leo, May 30th, 2008 @ 2:24pm

    Re: architecture

    As an architect, I would say that my creative work is the space within the building, not the drawings. The drawings merely comunicate to the builder my vision for him to execute. If my creation was merely the drawings, that would be the limit of my responsibility. As it stands I am responsible for the welfare of the occupants of the building.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    MAtt, May 30th, 2008 @ 2:29pm

    rights?

    I think society is further confusing "right" with "ability." Our list of inalienable rights has far outgrown the initial intent. And these ass-clowns at ASCAP are just trying to line their pockets.
    I own a small business and they want to extort US$1000 per year for me to play the radio. Forget about the fact the radio is already paying them. And forget about the fact the some songs the radio plays are covered by another licensing agency, who no doubt would come calling for their US$1000 as soon as they found out I paid ASCAP.
    They are tethered to a sinking ship. I hope they drown. A lot.
    Matt

     

    reply to this | link to this | view in thread ]

  8.  
    identicon
    James Keegan, May 30th, 2008 @ 6:16pm

    Rights

    The problem is you keep treating music like a physical piece of property. Let's continue the Coca Cola reference. If Coke sells an can to a vendor and that vendor gives the product away unopen, it is still unused. Now if I receive the can, open it, and then try to re-sell it or even just share it, who wants it? Oh maybe my wife or kid but I can't deliver it around the country expecting people to continue using it.

    With music, I can produce a song, one person buys it and an endless number of people can now share it via the internet. You have now undermined my way of life. If I choose to give it away, then I accept the potential loss in hopes it will turn into profit another way. My choice! Not yours!

    What if music started to develop bacteria and disease after the 5th or 6th person copied it?

    Stop associating the songwriters with maniacal freaks. Just because one super rich drummer complains, doesn't make all songwriters super rich freaks. He just had the voice and money to speak for the rest of us. If you keep copying my song and posting it freely, how do I make a living? Why pay for something that is free?

    If you clicked 2 buttons on your computer and a free Coke appeared that you could drink forever, ya think Coke might be a bit perturbed?

    Or maybe you'll understand it this way. A thief is arrested and at his trial he argues, "That bank has plenty of money, I didn't think they would miss a few thousand here and there." At this point the only question is, how long will he go to jail?

    There are literally millions of people who illegally download millions of songs. Somebody wrote them but somebody won't be paid.

    Jimmy

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    DanC, May 30th, 2008 @ 6:55pm

    Re: Rights

    With music, I can produce a song, one person buys it and an endless number of people can now share it via the internet. You have now undermined my way of life.

    So your answer is to blame basic economics and the emerging digital marketplace for undermining a business model based on selling physical goods.

    Newsflash: When the market changes, you change your business model in order to adapt. The big record labels only took a little over a decade to figure that out. So the insistence that you should be able to rely on the same business practices regardless of reality is ludicrous.

    If I choose to give it away, then I accept the potential loss in hopes it will turn into profit another way. My choice! Not yours!

    No one is saying it isn't your choice. However, what is being said is that it doesn't make any sense to continue with a business plan that has outlived its usefulness. At present, music tracks are typically sold for $0.79 - $0.99 USD (much to the chagrin of the RIAA). When the price continues to inevitably decrease towards zero, an artist trying to sell a track for $1.50 is simply going to be out of luck.

    A thief is arrested and at his trial he argues, "That bank has plenty of money, I didn't think they would miss a few thousand here and there." At this point the only question is, how long will he go to jail?

    This example shows an incredible misunderstanding of the situation. Digital goods are not limited by availability, since as you noted they can be reproduced ad infinitum with essentially a zero cost of reproduction. There isn't "plenty" of digital goods, there is an infinite supply of digital goods, rendering your example moot.

     

    reply to this | link to this | view in thread ]

  10.  
    icon
    Mike (profile), May 30th, 2008 @ 7:12pm

    Re: Rights

    With music, I can produce a song, one person buys it and an endless number of people can now share it via the internet. You have now undermined my way of life.

    No. They have only undermined your business model.

    If I choose to give it away, then I accept the potential loss in hopes it will turn into profit another way. My choice! Not yours!

    No. It's the market's choice. If they are only accepting free content, then your attempt to charge will fail.

    Stop associating the songwriters with maniacal freaks.

    Blaise is a songwriter, so I don't think he's associating them with maniacal freaks.

    If you keep copying my song and posting it freely, how do I make a living? Why pay for something that is free?

    Well, we've gone over that about 1000 times at this point. But, for your sake:

    http://www.techdirt.com/articles/20070503/012939.shtml

    You still have plenty to sell. It's just that you need to focus on selling the scarce goods, not the infinite ones.

    If you clicked 2 buttons on your computer and a free Coke appeared that you could drink forever, ya think Coke might be a bit perturbed?

    Yeah, and if you could turn a knob in your house and water would rush out of the faucet, don't ya think that water companies would be a bit perturbed... oh wait...

    Or maybe you'll understand it this way. A thief is arrested and at his trial he argues, "That bank has plenty of money, I didn't think they would miss a few thousand here and there." At this point the only question is, how long will he go to jail?

    Please learn the difference between scarce and infinite goods.

    There are literally millions of people who illegally download millions of songs. Somebody wrote them but somebody won't be paid.

    The ones who wrote them and understand these business models are getting paid. It's only those who put their head in the sand who aren't.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Lawrence D'Oliveiro, May 30th, 2008 @ 10:14pm

    Re: Rights

    James Keegan wrote:

    With music, I can produce a song, one person buys it and an endless number of people can now share it via the internet. You have now undermined my way of life.

    If you really were a musician, you would be well aware that musicians get hardly anything from sales of recordings--essentially all the profits from those go to the record companies. So you have nothing to "undermine" from giving your recordings away--treat them as promotional material to encourage people to come and see you perform live--that's how you make your real money.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Steve, May 31st, 2008 @ 5:37am

    Bill of Wrongs is Right

    Great post - especially the "There was art before copyright law existed, and many artists are making their living today despite copyright law (rather than because of it)." There's so much opportunity today and the organizations on the fringe - those that don't actually produce the content - are panicking and missing it.
    Thanks for the insights.

     

    reply to this | link to this | view in thread ]

  13.  
    icon
    PaulT (profile), May 31st, 2008 @ 5:39am

    Re: Rights

    "With music, I can produce a song, one person buys it and an endless number of people can now share it via the internet."

    Emphasis on the word can. just because something *can* happen doesn't mean it *will*. Even with Nine Inch Nails' Ghosts albums - which were under a CC licence and therefore legal to copy for free - a few million bucks' worth of CDs and vinyls were bought. Why do you assume it will never happen with other albums?

    "There are literally millions of people who illegally download millions of songs. Somebody wrote them but somebody won't be paid."

    You're falling into the usual trap of assuming that nobody who downloads music ever pays any money to the creator. This is false - apart from the fact that some people who download songs do go on to buy the CD (and may never have done so without hearing the downlads first), your statement also assumes that nobody who downloads music will ever buy a T-shirt, attend a gig, buy a DVD or other merchandise of that artist. This is a false and unsupportable assumption.

    Under most record company contracts, a person who downloads the album for free and then attends a gig will give more money to the artists than a person who buys the CD but never goes to a gig.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    wasnt me, May 31st, 2008 @ 6:54am

    Re: Bill of Extortion

    Steve R.

    it doesn't say copyright has been diminished it only says certain groups and or ppl are trying to diminish it.

    not that i support the bill of extortion in anyway.

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    Blaise Alleyne (profile), May 31st, 2008 @ 7:25am

    Re: Rights

    Dan, Mike, Lawrence and Paul have pretty much covered everything. I just have a couple thoughts to add.

    The problem is you keep treating music like a physical piece of property.

    That's the point, in a way, but the purpose is to highlight the difference: "those who insist that copyright is the same as real property break their own rule by also insisting that they retain perpetual rights to the good, even after it's been sold."

    You can't complain that music is being treated like physical property one second and use the example of a bank robber the next.

    More importantly, ASCAP claims to be putting forth a "Bill of Rights." In it, they assert all sorts of arbitrary intellectual property claims. My point is that "this is not a given," that it's hardly the substance from which to derive inalienable rights. The "rights" granted by specific intellectual property laws are very different from natural rights (the kind you'd expect in such a document); there's nothing natural about intellectual property.

    Stop associating the songwriters with maniacal freaks.

    As Mike already pointed out, I am a songwriter and I work for songwriters, practically on a daily basis. There are many songwriters who understand the current landscape, which is why I fully support the seventh "right" in the bill, so that those songwriters have the freedom to distance themselves from groups like ASCAP and the freedom to flock to groups like the Canadian Music Creators Coalition.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Blaise Alleyne (profile), May 31st, 2008 @ 8:01am

    Re: Re: Bill of Extortion

    it doesn't say copyright has been diminished it only says certain groups and or ppl are trying to diminish it.

    True, though Steve's objection still stands in the sense that there are so many forces working to expand copyright as well. The entertainment industry has been quite successful at this over the past several decades.

     

    reply to this | link to this | view in thread ]

  17.  
    icon
    PaulT (profile), May 31st, 2008 @ 8:19am

    Re: Re: Rights

    OK, I've just re-read my comment and would like to add the following as clarification:

    I'm not saying that everyone who downloads for free will eventually give money to the artists - in fact, I'm well aware that many won't. The intention behind my above comment was to point out that the assumption that *nobody* will do it is utterly false.

    It's that assumption that has caused all of the problems with a declining music industry suing its own customers - they simply don't seem to understand that the people downloading for free and the people who pay their wages can be, and often are, the same people. As a music fan who buys music regularly but has boycotted major labels for 4 years now, I find this lack of understanding frustrating. Especially since I didn't really care about major vs. indy labels before the RIAA lawsuits and DRM.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    John Wilson, May 31st, 2008 @ 8:45am

    I guess I'm a pirate then

    By your definition, confused as it is, the very act of inviting a group of people to my house to listen to a CD that I found very good and not paying you royalties, or some such thing, I'm a pirate.

    Even worse I could be blasting the music out as I BBQ in the back yard. So I guess I'd have to forward royalties to you from all the neighbours I've inflicted your music on.

    Just how do you want to play this out?

    I guess it's sue everyone who my possess your music should they dare to play it for anyone else in their home, in their car, in their back yard as so on. Willing listener or not.

    Sounds pretty silly to me.

    ttfn

    john

     

    reply to this | link to this | view in thread ]

  19.  
    icon
    Steve R. (profile), May 31st, 2008 @ 2:27pm

    Re: Re: Bill of Extortion

    As a extremely brief summary Wikipedia wrote: "The Copyright Term Extension Act (CTEA) of 1998 – alternatively known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or pejoratively as the Mickey Mouse Protection Act – extended copyright terms in the United States by 20 years."

    The rules were changed to give the copyright holders extra rights and the public is finally reacting to that. However, the response of the copyright holders is the mantra of "You are stealing from us by trying to diminish our rights.". The problem is that the copyright holders stole (diminished) our rights to fair use first. If we go back to the original concept of copyright we are neither diminishing nor stealing from the supposed "rights" of the copyright holders.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    mobiGeek, May 31st, 2008 @ 7:55pm

    Big Artists

    I think a problem that many, MANY people have when considering copyright, digital media, "piracy", etc... is that they have a misconception of the business of music (or any digitally distributable work).

    The overwhelming majority of people who make their money as musicians make extremely little or even NOTHING from the sale of music. Consider the thousands of bands/musicians playing in bars all around the world each and every night. They make their money from playing, and might make the odd buck or two from CD sales during intermissions.

    Only the Very Big Artist, typically who have their own labels and/or business sense to put the recording industry in its place, make big money from music sales. Typical artists make peanuts from the sale of plastic discs.

    Songwriters are typically paid for the work of writing a song. They typically sign over the rights to their songs to either the recording artist or to the music producers (i.e. the labels). Like the Hollywood writers, most of them have already negotiated their price to sell the work, and have given away the rights from that point on.

    This "bill of rights" is pure grandstanding. It is meant to get the attention of politicians and to catch up young "talent" before they've had a chance to understand the true business of The Business.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    James Keegan, Jun 1st, 2008 @ 10:40am

    Rights

    Aah, there in lies the rub. Under a different business model, the rules change. But from the point of view of the writer. Technology changed, millions of people became dishonest by the lure of simplicity (what? I just download it?) and the "music business" changed almost overnight. As a session musician, I watched all my writer clients virtually disappear due to publishing contracts being cut in half or just being dropped.

    The real problem is too many people are arguing about a topic they know almost nothing about.

    Yes there are ways to adapt your business and artists are doing it but the songwriter gets cut from the loop. Selling merchandise such as t-shirts and hats has nothing to do with the songwriter (unless they are also the performing artist but then that is coincidental).

    If I write a song for Nine Inch Nails and Trent decides to give it away, neither of us make money on the song, but if he tours, he makes his money there. I make a small amount from the catch all ASCAP/BMI fee that all venues pay if they play music. Pennies! Trent's decision would involve me arranging a buy out deal.

    Now if I write this song and NIN records it and everybody simply copies it then distributes it on the internet. Nobody makes money period. Trent still tours but me as the songwriter is screwed! No buy out! No dough!

    Yes we need to change the way we do business but theft is theft. No I don't think we should be arresting grandma because her granddaughter downloaded a couple songs. But the people still believe they are not stealing. The writers yell foul and everybody pulls their digital hands out of the cookie jar and says, "I didn't steal anything!"

     

    reply to this | link to this | view in thread ]

  22.  
    icon
    Mike (profile), Jun 1st, 2008 @ 11:56am

    Re: Rights

    The real problem is too many people are arguing about a topic they know almost nothing about.

    You keep saying that, despite the fact (as was pointed out clearly to you) that Blaise is a songwriter and works with songwriters. Don't argue against what's not true.

    Yes there are ways to adapt your business and artists are doing it but the songwriter gets cut from the loop. Selling merchandise such as t-shirts and hats has nothing to do with the songwriter (unless they are also the performing artist but then that is coincidental).

    Again, this is a business model issue. In most "writing" businesses, the writer isn't paid a royalty. Journalists don't get a cut of newspapers sold. Software writers don't get a royalty of software sold.

    What's wrong with a typical arrangement of getting paid for the work that you do -- writing the song -- rather than a cumbersome and unnecessary process of royalties?

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Xanthir, FCD, Jun 1st, 2008 @ 1:41pm

    Re: Rights

    Yes we need to change the way we do business but theft is theft. No I don't think we should be arresting grandma because her granddaughter downloaded a couple songs. But the people still believe they are not stealing. The writers yell foul and everybody pulls their digital hands out of the cookie jar and says, "I didn't steal anything!"

    You are completely correct. Theft is theft. And if someone broke into your house at night and stole the lyric sheets you were writing, I'd be with everyone else in condemning them as a thief and wanting them in jail.

    However, you losing out of royalties isn't theft (unless you were actually due some royalties and they went to someone else). You apparently aren't even compensated from the actual song - you say that you just get a cut of the generic licensing fee. You are not even touched by downloading.

    Your pain comes from a shift in business plans. It sure does suck that your current plan for making money doesn't work so well anymore. It sucked for all those buggy-whip makers too. However, we as a society didn't declare that Henry Ford was stealing from the whip makers, and we as a society are gradually coming to realize that downloading isn't stealing from people like you either. It's just shifting the marketplace, and you have to deal with it, like people have always had to when technology changes what's possible.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Xanthir, FCD, Jun 1st, 2008 @ 1:47pm

    Re: And I have the right...

    Well, almost. You have the right to do what you wish with things that are sold or freely given to you, unless you agree to special terms limiting your freedoms in a formal contract. Shrinkwrapped EULAs don't count, and luckily the courts are starting to realize this.

    When I am sold a CD, I own it. I won't buy a plastic disc for $14.99, as I can get several hundred for that price. If I'm paying that sort of money, it's for the content. I'm buying the music. If the artist wishes to attempt to engage me in a formal contract whereby I limit my rights to redistribute my property after I buy it, they are free to, but I'm free to refuse as well. Luckily, I've never had any of them do that. All I ever see are transparent attempts to try to ram a contract down my throat by stealth via EULAs.

    In the meantime, I will take my (intellectual) property as my own, and do what property law has always allowed me to do with my own property - share it with others.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Robert, Jun 1st, 2008 @ 6:09pm

    ASCAP is right.

    While I do not see it as a constitutional right, I do think music should be protected and not freely distributed. I do not think it should be a problem to make a copy of a cd and give to a couple close friends, but I do however think that it should not be distributed freely online to complete strangers. If you would write a book or design some new tech device, would you want people to distribute it freely? If you manufacture something expecting to be paid for all the time and energy that you invested and someone would take it say thank you and walk away without paying for it, How would you feel?

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Robert Maxwell Case, Jun 1st, 2008 @ 8:48pm

    Performance licensing and restaurants ...

    During my 35 years as a professional entertainer, I have often found gigs at restaurants that have not had music before.

    And nearly as often, the performance licensing organizations arrive several weeks later demanding a license. The restaurant owner has never heard of such a thing and when I tell them it is legal, the restaurant stops hiring music, affecting my income.

    As a former ASCAP member and lifelong musician, I understand the right of composers to share in performance of their music for profit. My problem is the haphazard and arrogant way the performance licensing groups enforce that right.

    The typical restaurant license is very complex and owners often are able negotiate lower payments than originally demanded. In my more than three decades as an entertainer, I have seen the number of venues available in which to perform drastically reduced due to this unfair process.

    I have read that the amount collected from restaurants and bars is less than 20 per cent of the performance licensing organization's income. The damage done to the live music scene certainly exceeds the amount they derive.

    I've had enough. Starting today, I am taking a stand for even-handed enforcement and simplified standardized payments.

    http://www.topsailadvertiser.com/news/ascap_2240___article.html/business_restaurant.htm l

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    Blaise Alleyne (profile), Jun 2nd, 2008 @ 12:51am

    Re: ASCAP is right.

    I do not think it should be a problem to make a copy of a cd and give to a couple close friends, but I do however think that it should not be distributed freely online to complete strangers.

    How does the law determine the difference between a friend and a stranger? Are there people you know who are not your friends, or does everyone you know count as a friend? What about "MySpace" type friends, do those count? See how this gets complicated quickly?

    Everything breaks down the moment you start thinking about how this would be implemented, enforced or even defined.

    If you would write a book or design some new tech device, would you want people to distribute it freely? If you manufacture something expecting to be paid for all the time and energy that you invested and someone would take it say thank you and walk away without paying for it, How would you feel?

    Books and electronic devices aren't the same. With a book, yes, I'd want people to spread it freely and I'd be interested in a business model that uses that to my advantage. An electronic device, on the other hand, costs money to copy, so I probably wouldn't give too many away for free myself. But anyone has the right to redistribute it at no cost (e.g. if you buy an iPhone, you can give it away for free).

    Also, click through the link about confusing salaries and royalties in the post. There's a difference between being paid to do work (e.g. a salary) and being paid for work you've already done in the past (e.g. a royalty).

    You're confusing infinite and scarce goods, distribution and redistribution, royalties and salaries...

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Tee, Jun 2nd, 2008 @ 11:12am

    Re: Re: Rights

    "Again, this is a business model issue. In most "writing" businesses, the writer isn't paid a royalty. Journalists don't get a cut of newspapers sold. Software writers don't get a royalty of software sold."

    If one or two people were writing a newspaper or magazine then they probably would get a very large cut. That model works for that industry because it takes many journalist to put out a paper. The same could be said for most software companies. It takes more than a few programmers to write most of the applications, games and various utilities. And the companies where it is a one or two man operation, when they develop something everyone wants, they are rewarded handsomely. Just as they should be and just as a songwriter should be.

    "What's wrong with a typical arrangement of getting paid for the work that you do -- writing the song -- rather than a cumbersome and unnecessary process of royalties?"

    What you are talking about has actually been done. Way back in the beginning of the rock and roll era. Songwriters got paid a one time fee and everyone else around them got rich. They, essentially, got nothing. History has shown that the record companies will conspire to pay songwriters as little as they can. So, they will do just that. The arrangement you are suggesting appears to ignore that very real historical fact. Thats why organizations like ASCAP were formed. To protect artists from being wrongly exploited. Although, I will agree, they are getting a bit out of hand. Any activity that unfairly threatens new ways to deliver music is wrong. I'm sure there is a percentage formula that is more than fair for all parties involved. And, I believe that we are in the opening salvos of negotiations that will bear that out. No good negotiator goes in asking for the rock bottom terms they are willing to accept. Thats just bad business for either side. In short; they are asking for these outlandishly high percentages, knowing full well they will be bargained down to something a lot more reasonable.

    With that said, you are leaving out major bits of info and practical application. As the old saying goes, "The Devil is in the details." Neither journalist nor software writers are typically signed to exclusive deals. Either one can quit working for their perspective companies and work elsewhere at any given time. If you are a songwriter, you are usually signed to an exclusive publishing deal. You cannot break that deal. If you do, you can not legally write for another company (or artist) until your contract runs out. Even when you are under contract, music industry politics dictates that you will not work for any artists who are not signed to that publishers roster or it's larger owner (the record company's)artists. Oh, did I mention the record company's publishing arm takes half of the songwriters earnings for the song? Yeah, my bad. The publisher gets half of that money. And, the songwriter is frequently the last one in the musical food chain to get paid. So, the songwriter is paid royalties, in part, for that exclusivity and in part for the other inconveniences he or she must endure to make a living in that field.

    I am not in anyway trying to belittle anyone's job. Whether it be a software writer (programmer) or journalist (my first "real" job). But neither of those jobs are the same as being a songwriter, novelist, artist, etc ... If someone is intelligent, hardworking, and willing to put in the work, they will be able to make a good living being a journalist or a software writer. Songwriting is an entirely different animal altogether. Either you can do it or you can't. No amount of education or ambition will turn you into a songwriter. No book or instructor can “teach” you how to write a good song. Sure, people can help a person refine his or her song writing skills. But, it's either in you or it isn't it. And “its” not in many people. Thats life.

    Scarcity drives up the wage for any given profession. If you're talking about the real life economics of any business model (old or new), then you have to factor that in. Songwriters get paid the way we do for the same reason superstar athletes get paid those huge amounts of cash: there are very few people who can compete at that level. That's just the way it is. On any given day there are competent journalist and software programmers available should the need arise. Fire one, and there are many more just as skilled to take his or her place. The same cannot be said for songwriters. Look at it like this; if becoming rich (or even making a semi-decent living) from songwriting were that easy, wouldn't there be at least as many people doing just that as there are journalist and software “writers?” Like it or not, these are the realities you don't seem to be addressing.

    The truth of the matter is that most songwriters see the new technology as empowering. For the first time in years, if things are allowed to progress without being crushed by telecom deregulation, we may be able to make a good living without having to go the corporate route.

    If you really want change the way things are done, start by using your forum to shine light on the unfair accounting practices, and shady deals that really drive up the price of music and truly stifle new and creative ways to deliver that music. Don't pick on us. We aren't the real problem here. If people (bloggers, judges, politicians and the general public as a whole) would do the research and not assume, that would be clear.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Dosquatch, Jun 2nd, 2008 @ 12:25pm

    9. We have the right to decline participation in business models that require us to relinquish all or part of our creative rights - or which do not respect our right to be compensated for our work.

    Does not the current system of labels and trade groups require exactly this?

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Jerry Pisk, Jun 2nd, 2008 @ 12:44pm

    1. We have the right to be compensated for the use of our creative works, and share in the revenues that they generate.

    If they truly do feel that way do they also pay the companies that make their instruments, their tools, and so on, a share of their own profits? Does James Hetfield pay ESP a cut of Metallica's revenue because its generated using EPS's guitars? How about paying the Chinese companies manufacturing chips in all the electronic equipment Metallica uses a cut of the revenues those gadgets help generate? Are musicians paying the makers of their cars, their chauffeur, cab drivers or whoever gets them to a concert a cut of the revenue those people helped generate? Does ASCAP pay Microsoft for their use of Windows servers in generating revenue? If they think that is the right way of doing business they should pay up.

     

    reply to this | link to this | view in thread ]

  31.  
    icon
    Blaise Alleyne (profile), Jun 2nd, 2008 @ 11:20pm

    Re: Re: Re: Rights

    I think we're largely in agreement, but a few comments...

    If you're talking about the real life economics of any business model (old or new), then you have to factor that in. Songwriters get paid the way we do for the same reason superstar athletes get paid those huge amounts of cash: there are very few people who can compete at that level.

    Without getting into a hardest-profession-in-the-world Fame-style debate over who's more replaceable... you're confusing royalties and salaries. No one here is claiming that songwriters shouldn't get paid, or paid well for that matter. Rather, the point is that having an artificial monopoly over one's work and getting paid royalties for work that was done in the past is something that is up for debate (i.e. "not a given") rather than a "right" that us songwriters and composers have.

    If you are a songwriter, you are usually signed to an exclusive publishing deal.

    Two comments: 1) this isn't really a bill of rights for songwriters and composers, it's a bill of rights for their publishers; 2) just because that's the case now doesn't mean that it will always be the case, as this discussion is largely about not ignoring other business models.

    It seems like you're suggesting that these royalties are necessary because "the songwriter is frequently the last one in the musical food chain to get paid" and "for the other inconveniences he or she must endure to make a living in that field." Doesn't that seem a little inefficient? Asserting the "rights" in the bill would be an affirmation of the current status quo.

    Again, even though that's the way things are run now, that doesn't make it content for a bill of rights.

    Don't pick on us. We aren't the real problem here. If people (bloggers, judges, politicians and the general public as a whole) would do the research and not assume, that would be clear.

    No one is suggesting that songwriters are a problem. (I am a songwriter and I work for songwriters.) This "bill of rights," however, is filled with problems.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Dhee, Jun 4th, 2008 @ 7:50am

    Re: ASCAP is right.

    "I do not think it should be a problem to make a copy of a cd and give to a couple close friends, but I do however think that it should not be distributed freely online to complete strangers"

    Although I agree with the spirit of the article, how exactly is there a difference whether you give s copy to friends or strangers? Surely the majority of copies pass between friends, even with all the download/file sharing mechanisms.

    And aren't both publicity? Is it not that publicity that needs to be harnessed as the income generator?

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Mark Blu, Jun 19th, 2008 @ 7:13pm

    Bill of Wrongs / Intellectual Property

    Intellectual properties and products are not necessarily one and the same. Your example, the Lenovo computer, is definitely a product that once purchased can be used in any way the purchaser sees fit, including as a boat anchor. The software that comprises the operating system is a different story altogether. There are copyright laws that protect its use. Of course, even with products there are patents, another type of intellectual property that can have its use restricted and can be licensed.

    The statement "Coca-cola doesn't have the right to determine whether its products can be given away for free as part of a promotion after a pizza store purchases them." may be somewhat true but it's out of context. Coca-Cola has the right to maintain its formula as a trade secret. They can, should they choose, license the formula to others and can also choose to contractually control how the licensee uses the formula. They can also sell the formula outright and still control the use via covenants and conditions.

    Royalties and licensing has been a large part of many industries. It's not a new concept, at all. it's also not such a cut-and-dry issue. I can't help but wonder, if someone chose to somehow make money using the techdirt.com moniker I think the registered owner of techdirt *might* have a thing or two to say about it.

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    Blaise Alleyne (profile), Jun 20th, 2008 @ 1:07am

    Re: Bill of Wrongs / Intellectual Property

    Intellectual properties and products are not necessarily one and the same.

    That was the point of the examples you bring up, to highlight the differences.

    Royalties and licensing has been a large part of many industries. It's not a new concept, at all.

    I never said royalties are new. Just that royalties aren't the stuff of natural rights. Royalties are "not a given" and not material for a bill of rights.

    It's also not such a cut-and-dry issue.

    Exactly. None of the rights ASCAP asserts are cut-and-dry at all. How can they put them in something called a bill of rights?

    I can't help but wonder, if someone chose to somehow make money using the techdirt.com moniker I think the registered owner of techdirt *might* have a thing or two to say about it.

    You wouldn't be the first to make this mistake. This has been answered many times. Here's a recent example:

    http://www.techdirt.com/article.php?sid=20070412/183135#c612

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Alex, Jun 25th, 2008 @ 5:22pm

    I hold a degree in the Music Industry, am a songwriter, and am working within the music industry in Los Angeles.

    It appears a little too late to join in the conversation, but I would just like to add a couple of notes:

    -The Music Business is not like other businesses. Writing a song is similar, but not the same as designing a building or painting a picture. Don't forget that just because it is similar, doesn't mean the soultions are already there.

    -ASCAP appears to be the victim of much of the talk here, and it also seems much of the debate revolves around what is actually the law. These PROs have been and will continue to be within their legal rights. The law determines if your business needs to pay out or not, and if you are a business owner surprised by this, you need to do more comprehensive research before investing your time and money into a venue (Its not ASCAP's fault the size of your business deems a $1000/mo fee).

    -Music may one day find itself like water, but even with water, do we not now have to pay 10 cents for a cup from Taco Bell?

    -This 'Bill of Rights' isn't being amended to our constitution... it's an attempt to protect and even perhaps garner more awareness of rights in an age where so many people are unaware of the legality of situations they find themselves in...

    if you want a more in-depth look at how ASCAP's lawyers think... read the position paper....
    http://www.ascap.com/rights/pdf/ASCAP_BillOfRights_Position.pdf

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Ronnie, Jul 11th, 2008 @ 7:07am

    Good music is under rated!

    Like teachers asking for proper compensation for their critical contribution to society. Weather you want to admit it or not, Musicians and songwriters and yes even the big corporations that spend millions to produce and promote the music that colors almost every aspect of your life. Do deserve to be compensated. In this world of getting it all for free I for one applaud this mind set. Next time you are watching TV or visiting a club to dance to your favorite cover band or driving in your car with the radio on. Imagine for a moment if there was no music

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    Blaise Alleyne (profile), Jul 12th, 2008 @ 7:28am

    Re: Good music is under rated!

    Who said musicians and songwriters shouldn't be compensated?

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    Songwriter anonymous, Aug 10th, 2008 @ 9:26am

    Music being stolen from your home is big business

    My work was stolen from my home, I live with the comprimised posistion it left me to bear, The big name artist who profited , is a thief, I know what its like to have your creative work stolen and it is not a good thing , it is not condusive to creativity and certainly doesnt feel good . I starved and strived for over 18 years to become a songwriter and musician , The industry is corrupt and now I know the truth , I wasted 18 years of my time and energy creating work , it is not valued , it is stolen , it is not a good thing , I now discourage anyone from being a songwriter and if they choose to be anyway I warn them to keep all their works under gaurd and locked up , because the big name producers and artist obviously have no talent so they have to go rip off unknown songwriters material . I see what they are doing now in the law wise is only an attempt to actually legalize theft , go figure , I sent in over one thousand lyrics to copyright in 2005, and only did so because they had thefted some of my work from my home and I didnt want to have any more thefted . I have lived as no creator should ever have to live , You cannot imaging the damaging effect until you have lived through it.

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Mary, Sep 15th, 2008 @ 5:09pm

    ASCAP

    These people are a nightmare. Its like they go through the phone book and just call businesses they think might play music somehow and threaten them.

    ASCAP makes LOADS of money (that's right - non-profit doesn't mean you can't pull in millions and spend it) and from what I hear, most of the artists they "represent" aren't seeing the profits ASCAP would have you belive they're sending them.

    I run a 4 day convention every year. We don't even play music. They're threatening me if I don't get a license, because the hotel or avenue might be playing music that they've licensed. I'm not paying the extortion fee so they leave me alone. To hell with that.

    Have you read the story about how the Girl Scouts can no longer sing around the campfires? ASCAP is totally trying to cover that up, and act like they didn't get all mafia on those kids, but they did.

    Someone needs to CURB this out-of-control money hungry company.

     

    reply to this | link to this | view in thread ]

  40.  
    identicon
    willis washington, Oct 17th, 2008 @ 11:06am

    getting shafted/ shunned

    thank you for the info. i sing, and i've made a c.d.
    with someone i thought meant well, i've sent the music
    to the copyright division (3) times and nothings come-
    back it's been almost a year, i beieive it will comback this time , my so called freinds who understand copyrights
    were'nt a part of this project so they made it hard for me,
    (over the past year they did what they could to frustrate
    my efforts, but it was to no availe, i won't give up, and i won't give in). please sir could you tell me how to join
    ASCAP. IT'S BEEN A YEAR SINCE THIS PROJECT WAS CREATED.
    I never had to use the computer, all i had to do was sing.
    now that i did an album (c.d. on my own no one's laughing anymore' I've even learned how to use a computer, that's just how much i beleive in this my god and this project.
    thank you for the knowledge. SIGHNED: WILLIS JEROME WASHINGTON

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    Anonymous Coward, Oct 22nd, 2008 @ 5:49am

    Re: Re: Rights

    I don't know about James Keegan, but when someone buys one of my songs off iTunes, I get about $.75 - I'm not represented by a record company.

    Once again, the assumption here is that we're sticking it to the man...but musicians are just experiencing the ability to earn a moderate living without getting screwed by record companies.

    It used to be that the only way a band could get their music recorded was to land a record deal, now they can do it themselves (still with a significant cost, but it's not in the 100's of thousands of dollars anymore)

    It used to be that the only way to get your band promoted outside of your home town, was through a record company's promotion and distribution system. Now there's the internet.

    So now musicians are embracing that, and trying to do it on their own, just in time for forums like this to say...hey...you should give it away for free.

    By downloading music (that the artist has not authorized to be downloaded for free), you are simply not paying the musician most of the time.

     

    reply to this | link to this | view in thread ]

  42.  
    identicon
    Anonymous Coward, Oct 22nd, 2008 @ 5:52am

    Re: Re: And I have the right...

    the contract that you agree to is ensconced in law and is written on every cd that you buy...it's called copyright. And that law allows you fair use. But for $15 do you really think you have unlimited rights to that material?

     

    reply to this | link to this | view in thread ]

  43.  
    icon
    Blaise Alleyne (profile), Oct 22nd, 2008 @ 5:31pm

    Re: Re: Re: Rights

    I agree with most of your comment, but you lost me as you got to the conclusion.

    So now musicians are embracing that, and trying to do it on their own, just in time for forums like this to say...hey...you should give it away for free.

    By downloading music (that the artist has not authorized to be downloaded for free), you are simply not paying the musician most of the time.


    The argument isn't a defence of unauthorized downloads, but rather that artists should consider authorizing downloads, growing their market and adopting business models that take full advantage of digital technology.

    The "embrace" can go further.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    DDM, May 18th, 2009 @ 8:25pm

    ASCAPS Extortion

    Here is the real deal: ASCAP only pays out to a select few, a pittance to a few more and then absolutely nothing to most of their catalog. I am one of the many...I have performed in countless venues...CBGB's, Hard Rock Cafe' etc etc, played on Hard, satellite and online radio worldwide, earned Six Grammy Nominations & 4 Air Platinum Record Plaques (equals 4 million plus) been a ASCAP member for 40 years and have never collected one cent. Not one. So if the PRO's did what they claim then yes, the licensing fees would and should also be fair and legitimate. But it is not! It is extortion and they are liars and thieves and they WILL sue. And oh by the way, ASCAP has never lost a suit!!! They have all your money and our money to bury you with.

    Read my article:

    http://movies.48153.free-press-release.com/news/200506/1118008594.html

    http://www.musiqqueen. com/2005/06/15/the-stiffff-kitties-creator-diane-d-meinke-takes-ascap-to-task/

    listen to my story on the David Lawrence Radio Show

    http://www.thedavidlawrenceshow.com/classic_stiffff_kitties_mosqitone_and_evans_007127.html

    h ttp://www.stiffffkitties.com/ASCAP.htm (download the show)

     

    reply to this | link to this | view in thread ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This