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“Clients aren’t deciding whether to pay you so you can send them your product. They’ve already got it.”
August 9, 2010 5:35 PM Subscribe

The Music-Copyright Enforcers “A few years back, we had Penn, Schoen and Berland, Hillary’s pollster guys, do a study. The idea was, go and find out what Americans really think about copyright. Do songwriters deserve to be paid? Absolutely! The numbers were enormously favorable — like, 85 percent. The poll asked, ‘If there was a party that wasn’t compensating songwriters, do you think that would be wrong?’ And the answer was, ‘Yes!’ So then, everything’s fine, right? Wrong. Because when it came time to ask people to part with their shekels, it was like: ‘Eww. You want me to pay?’ ”

A licensing executive for BMI, a Performing Rights Organization, hits the road. It's often not pretty:

“I actually had a guy that I called the other day,” Baker told me, “and when I asked when he might be sending in his check, he said: ‘I don’t know, why don’t you call Obama? Ask him! He runs everything now.’ So, I put that in my notes, ‘Client referred me to president of United States.’ ” Then there was the colleague of Baker’s who got a letter saying, “Eat you-know-what and die.” When she replied to the client, she got another letter, asking, “What part of eat you-know-what and die don’t you understand?”

posted by availablelight (121 comments total) 8 users marked this as a favorite

ASCAP, BMI And SESAC Continue To Screw Over Most Songwriters

"When asked if he's received any royalty check at all, the answer was no. So, how do the collections organizations respond? They tell them to become more famous:

"I'm sorry to hear that, but what I would like to tell him is that he needs to write a hit song," BMI's Bailey said."
posted by inigo2 at 5:41 PM on August 9, 2010 [16 favorites]

Would anyone like to join my new Indie band, The Magical Services Ponies?
posted by Joey Michaels at 5:42 PM on August 9, 2010 [17 favorites]

I don't pirate music, but if I did I would feel remorse for ripping-off the songwriters, musicians, singers, engineers and producers, but not the record companies, promoters, agents, and other assorted dirtbags in da biz.
posted by ZenMasterThis at 5:43 PM on August 9, 2010 [2 favorites]

wft now you're telling me there's no Magical Services Ponies? what fucking next?
posted by toodleydoodley at 5:44 PM on August 9, 2010 [4 favorites]

One of the things I try to explain to people is the basic concept:

"We won't go back."

One CD a month and whatever's on the radio used to be the average amount of music consumable by Americans. And then, you know what happened?

MP3.

Normal people -- non-geeks -- are maintaining collections of individual singles at a rate of hundreds of individually chosen tracks, cycled or grown every couple of months. That's a consumption rate tens to hundreds of times normal.

People are not willing to spend tens to hundreds of times as much money on music.

So that's the elephant in the room. The budget for music is maybe $20 a month. The desire for music is $200 to $2000 a month, but:

a) The desire is already fulfilled
b) Nobody's willing to pay that much

Industry keeps trying to deal with this with various rental models. The problem is it's all fragile junk that doesn't work well with various devices. The bigger problem is that no matter how good they make it, they can't compete with what the *really* free market has implemented.
posted by effugas at 5:44 PM on August 9, 2010 [39 favorites]

Oh, and the performing rights organizations.
posted by ZenMasterThis at 5:44 PM on August 9, 2010

Wait, they had pollsters (and Mark Penn, at that!) conduct a poll, and the poll was COMPLETELY at odds with reality? That's un-possible!
posted by KingEdRa at 5:47 PM on August 9, 2010 [3 favorites]

I'm a member of BMI.

Didn't have to pay a cent to join. Plus they have services for songwriters-they do more than just collect royalties. I haven't investigated it yet but apparently songwriters can get insurance thru BMI as well.

As to effugas, well, the market will figure it out. It always does. Meanwhile, nobody works for free.
posted by St. Alia of the Bunnies at 5:49 PM on August 9, 2010

BMI and ASCAP are worse than useless for dance music producers. DJs and clubs don't report what they play so the actual songwriters get nothing.

I have friends that produce music and some have even charted at online dance music stores, streamed on internet and european radio, and have been played in front of thousands of people at clubs all over the world, and they have made almost nothing from direct music sales and literally nothing from performance royalties. The one producer/song-writer I know who made any significant cash from making music did it through licensing directly to a chain of clothes stores, and from being included on a compilation CD sold in stores.

Also, strip club owners are polite because they have shitloads of cash floating around to pay BMI.
posted by empath at 5:50 PM on August 9, 2010 [4 favorites]

Everyone wants roads, schools, fire and police departments, streetlights, etc, etc but hardly anyone wants to pay taxes.

Don't know how small-government strawman-bashing got dragged into this, but I LIKE all these things. What I DON'T like is social welfare, corporate welfare and an imperial military.

Get rid of these things and there'd be a lot less whinging about taxes.
posted by ZenMasterThis at 5:54 PM on August 9, 2010 [3 favorites]

Industry keeps trying to deal with this with various rental models. The problem is it's all fragile junk that doesn't work well with various devices. The bigger problem is that no matter how good they make it, they can't compete with what the *really* free market has implemented.

Well, to be fair they have been trying subscription services as well. The problem is, people want to be able to keep their tracks, they don't want to deal with crappy DRM, etc. If someone made a 'download all you want' MP3 service for $20/mo, that would probably do well.

As to effugas, well, the market will figure it out. It always does. Meanwhile, nobody works for free.

The problem is that 1) There is a huge back catalog of music out there, so even if people stopped making new music entirely, there would still be a huge amount of material for people to listen too. 2) People actually don't always mind working for free if they enjoy doing it, and music is one of those things that's cheap to produce and fun to make. There's lots of free music out there. And finally 3) Bands can make money touring if their music is popular.
posted by delmoi at 5:56 PM on August 9, 2010 [2 favorites]

"When asked if he's received any royalty check at all, the answer was no. So, how do the collections organizations respond? They tell them to become more famous:

"I'm sorry to hear that, but what I would like to tell him is that he needs to write a hit song," BMI's Bailey said."

Is this person asserting that they should have obtained royalties but did not? That's a breach of contract.

If the person is saying nobody played or performed his song, that's another thing entirely.
posted by Ironmouth at 5:57 PM on August 9, 2010

Don't know how small-government strawman-bashing got dragged into this, but I LIKE all these things. What I DON'T like is social welfare, corporate welfare and an imperial military.

Get rid of these things and there'd be a lot less whinging about taxes.

Unfortunately, not enough people agree with you to implement the program you wish. The downside of democracy is that you have to win.
posted by Ironmouth at 6:01 PM on August 9, 2010 [3 favorites]

All commodities trend toward the marginal price. In the case of music, the marginal price is now so close to zero that there's no significant difference.

That's why musicians make their money off of performance nowdays: performance isn't a commodity.
posted by Jimmy Havok at 6:01 PM on August 9, 2010 [7 favorites]

Music distribution is oriented around the fact that music is hard to mass produce. It once took a huge capital investment to make the plants to produce the records. And distributors got very wealthy off the miracle of mass production.

But the digital era is just different. These guys are now in competition with hundreds of millions of tiny factories, every one of which can duplicate music perfectly for hundredths of a cent. Their business model is predicated on bits not being easily copyable, but as Bruce Schneier has put it, trying to make bits not copyable is like trying to make water not wet.

There simply is very little need for distributors at all anymore. There is still need for sound studios, and for marketers, and maybe for people to coordinate the other facilities for the famously scattered bands of the day, but there simply is no more need for a huge distribution infrastructure. And that infrastructure is desperately trying to use the guns of the government to preserve its obsolete business model.

It is absolutely critical to capitalism to let bad and obsolete ideas go away. Companies need to go bankrupt so that other companies can spring up to replace them. Napster should be a dominant player in music right now, probably paying artists directly, but instead they were shut down by a corrupt monopoly colluding with the government.

I predict nothing but conflict and pain for ordinary people until these leeches are finally squeezed out of the market. And given the amount of protection they're getting from the government, that might be a LONG time.
posted by Malor at 6:04 PM on August 9, 2010 [37 favorites]

Okay, so how do y'all propose a songwriter get paid?

Not all of us are performers!
posted by St. Alia of the Bunnies at 6:07 PM on August 9, 2010 [2 favorites]

Don't know how small-government strawman-bashing got dragged into this, but I LIKE all these things.

Because the two urges seem pretty equivalent in my mind. People want social services, heck they expect them, but they do not want to pay. People want a lot of music, but they don't want to pay. Like effugas says above:

Normal people -- non-geeks -- are maintaining collections of individual singles at a rate of hundreds of individually chosen tracks, cycled or grown every couple of months. That's a consumption rate tens to hundreds of times normal.

People are not willing to spend tens to hundreds of times as much money on music.

Now, you can make a reasonable argument that the large music labels could be done away with, allowing bands to pocket the money (and, presumably, pay songwriters, backing musicians, support personnel, etc themselves), or that small labels compete to "e-distribute" music so that bands don't have to figure it all out, still giving the creators more of the money, but the idea that, since people don't want to pay for stuff, they shouldn't have to is a little... disconnected from reality.
posted by GenjiandProust at 6:14 PM on August 9, 2010

It's good for songwriters to get paid.

But ASCAP and BMI aren't always defending songwriters. Where were they when Biz Markie needed defending in 1992? Oh, that's right – hip hop songwriting didn't count back then. By the time BMI and ASCAP decided to wake up and take care of their constituents, the damage was already done – and that court case pretty much destroyed a good chunk of the cool stuff going on in hip hop at the time.
posted by koeselitz at 6:17 PM on August 9, 2010 [3 favorites]

Why have we elevated professionally-produced and performed music to the status of a need? Not saying I don't like it (high-quality music, not the status elevation), but there is no social purpose beyond that there is a market for it.
If no one will pay professional musicians, then there actually isn't a market for it, and we will go back to a situation where musicians are strictly either enthusiastic amateurs or at most solicit donations to cover meager costs (sing for their supper, so to speak). How is this a Bad Thing?
posted by overyield at 6:22 PM on August 9, 2010 [8 favorites]

but the idea that, since people don't want to pay for stuff, they shouldn't have to is a little... disconnected from reality.

Well strangely, the actual, real reality is that people who don't want to pay for stuff don't actually have to pay for it - it's very, very easy for them to get it for free. That's the reality all of this has to deal with. We can philosophize all day about what should happen, and what would be fair, but that's not going to stop someone downloading any album they want off their favorite torrent tracker in 2 minutes flat. Hell, it won't stop people borrowing a CD from their local library and ripping it to iTunes. Any discussion, any solution has to exist within that environment because all the guilt, DRM and enforcement thrown at people by the industry aren't going to make a dent in that.
posted by Jimbob at 6:22 PM on August 9, 2010 [5 favorites]

Okay, so how do y'all propose a songwriter get paid?

Not all of us are performers!

My guess? Payment up front. Indie game developers seem to have a pretty good model. A lot of them are using services like kickstarter to get the initial funding, then using 'pay-what-you-want' sales after the game has been out for a whole to get additional interest.

The fact is, songwriters and performers are probably just going to make less money than they used to make. And perhaps there will still be a lot more of them, since it's much easier now to make and publish music than it used to be. We may be entering an era of amateurs rather than professionals. It may be that millionaire pop stars are a dying breed, and maybe that's a good thing. It's hard to say that culture was much advanced by the existence of the Backstreet Boys.

What I'm sure of is, music will be made, whether artists are getting paid for it or not.
posted by empath at 6:23 PM on August 9, 2010 [7 favorites]

Music is now free. It is what it is and there is no going back.

As business models go, the music biz is not an old one - perhaps a generation or so. It evolved with the times. Prior to the marriage of Rock and Roll and radio, musicians starved. The crude technology available to sell music on discs from the 40's onward ensured that the music biz would become a vast value added enterprise.

Musicians became rich. I was an executive with WEA and then Capitol Records in the 70's. The amount of money became stupid - and it all went to support the industry, with shockingly small amounts trickling down to the artists. That was the model, and it became a machine.

Then came the internet, You Tube and Myspace. No need for an "industry", and no reason to pay to support it. Music is now free.

Funny thing about the new music biz - there has been an explosion of performance and creativity that has no equal in the biz. It is astonishing the amount of music that is being produced - brilliant music - from basements, bedrooms, and beer halls. Virtually all of it from a generation who does not expect to be paid, but is cranking it out regardless. Exactly as it was before the 70's from time unknown.

I think removing insane amounts of Rock Star cash from the equation has been a breath of fresh air for the wider population of artists and lovers of art.

I say rip 'em off until they are gone. The true artists will always remain.

Regardless, there will no doubt be a new business model, and it will attempt as best it can to compensate the starving artist. As it should. But that is no guarantee at this point.

But the old model? Gone forever.
posted by Aetius Romulous at 6:28 PM on August 9, 2010 [55 favorites]

The problem isn't that music consumers aren't paying. The problem is, and always has been, that there are too many leeches and no-value-added middlemen in the system taking the majority of what is being paid.
This isn't about artists. It's about rights-holders.
posted by rocket88 at 6:29 PM on August 9, 2010 [3 favorites]

Okay, so how do y'all propose a songwriter get paid?

Not all of us are performers!

You think BMI is going to pay you? Not unless you're already being paid. That's the problem with this kind of PRO. A friend of mine owns a record store. He plays music there all day. But he plays independent music. If he pays PRO, the artists he actually plays won't see a dime of it and never will. The money will go to the same people who already get paid by every other system in place: the same artists he abhors and doesn't even carry in his store.

These organizations are pretty much rackets. It's like the RIAA who spend 10 gazillion dollars suing people and made 30 cents back for their trouble. It's ridiculous. Their systems are broken and rather than fix them, they keep on keepin' on and just sue the fuck out of everybody.
posted by dobbs at 6:32 PM on August 9, 2010 [5 favorites]

Well strangely, the actual, real reality is that people who don't want to pay for stuff don't actually have to pay for it - it's very, very easy for them to get it for free.

Well, in the short run, perhaps. So what happens in the long run if no one can afford to produce music for the price people are willing to pay? I don't have a lot of confidence that "new business models" will solve the problem when huge numbers of people will just steal the product. Because there is a lot of talk about how stealing from the big companies is OK and to be expected since they are such bastards (and they do, in fact seem to be bastards, so this is an easy stance to take), but I am willing to bet that these people would be no more willing to pay the performers than the major labels.
posted by GenjiandProust at 6:33 PM on August 9, 2010

Awhile back I was offered the opportunity to acquire 120 gigabytes (I spelled that out so there would be no mistake) of music via sneakernet. Hey bud, just get yourself a USB hard drive and I'll slip you mine for a few hours. I saw the directory; it was something like 30,000 songs. It would have cost me about USD$120 to partake, the cost (then) of a 160 gb USB drive. The costs are, of course, always going down.
posted by localroger at 6:35 PM on August 9, 2010

So what happens in the long run if no one can afford to produce music for the price people are willing to pay?

Well lets try it and see. In fact we don't have to try it, it's happening, and has been running at full steam for close to a decade now. As far as I can see, there's no shortage of music being produced. In fact, the amount of music being produced that doesn't even have a price tag attached is only increasing.
posted by Jimbob at 6:36 PM on August 9, 2010

You know, (since for me, I'm not in it for the money anyway) maybe all this is worth it if it turns out we won't have any more Britneys. OTOH, y'all better be taking up collections and buying us poor songwriters Apple computers and software and such. Because that stuff doesn't buy itself.

Unless you just LIKE acoustic. :P
posted by St. Alia of the Bunnies at 6:40 PM on August 9, 2010

Well, in the short run, perhaps. So what happens in the long run if no one can afford to produce music for the price people are willing to pay? I don't have a lot of confidence that "new business models" will solve the problem when huge numbers of people will just steal the product. Because there is a lot of talk about how stealing from the big companies is OK and to be expected since they are such bastards (and they do, in fact seem to be bastards, so this is an easy stance to take), but I am willing to bet that these people would be no more willing to pay the performers than the major labels.

People will make music for free. Or, they won't.

Simple enough.
posted by Sebmojo at 6:40 PM on August 9, 2010

Prior to the marriage of Rock and Roll and radio, musicians starved.

I read saw an interview with Mick Jagger not long ago where he made this point; in the century or so that recorded music has existed, musicians only managed to make any money out of it for a period of about 25 years. As far as he was concerned, that was a brief blip, and it's over. Of course, he hardly has to worry about where his next meal is coming from, but that's just because he was there at the right time.
posted by Jimbob at 6:41 PM on August 9, 2010 [7 favorites]

This isn't about artists. It's about rights-holders.

The two are often one and the same. That's the point of organizations like BMI and ASCAP. Channeling income to songwriters (the ARTIST who wrote the SONG) and publishers (oftentimes that's also the ARTIST) is what they do. Is it always fair, accurate and efficient? Of course not. But it's better than nothing.
posted by flapjax at midnite at 6:53 PM on August 9, 2010 [1 favorite]

This was one of the more interesting copyright stories I've read in some time.

BMI certainly comes out looking better than the RIAA does in similar enforcement stories. If taken at their word the crucial distinction is that BMI apparently is just looking for the writers piece of the pie, not the destruction of the business models.

The biggest distinction though, seems to be that the people that the BMI are approaching are enhancing their business through playing this music to their customers. Your local grocery store can kill it's piped in music if it wants to, and a bar is obviously less appealing without music.

It's easier to have sympathy for some teenager that doesn't have a music budget than to help a business person not pay one of their suppliers (music being the product).

The critiques of the PRO's seem more interesting than critiques of RIAA types.
posted by el io at 6:56 PM on August 9, 2010

Why is this surprising? Everyone wants roads, schools, fire and police departments, streetlights, etc, etc but hardly anyone wants to pay taxes. It's like they believe in the Magical Services Ponies or something....

They also like to believe that their taxes/fees/whatever are going to afore-mentioned services. All too often, that just ain't happening.

The Free Money Bunny isn't dropping golden eggs on your average (or above-average) artist. The collection agency execs aren't hurting, though. It'd be a shame to see their lifestyle impacted.
posted by ChurchHatesTucker at 7:00 PM on August 9, 2010

If someone made a 'download all you want' MP3 service for $20/mo, that would probably do well.

Someone did. It was called Emusic. It wasn't even $20/month, though at the time, it didn't have much in the way of major label acts. I subscribed for several years, and I thank them for fueling my exploration of hot jazz, as well as several rock bands I still listen to. It did well enough that in 2003 the company was bought by private equity firm.

That was the beginning of the end, for me. Smelling the success of iTunes at $.99/track, they "re-launched" the site in 2004 by eliminating unlimited downloads and substituting a (small) fixed number of tracks a month. I think it's currently $12 for 24 tracks.

I left, because I could no longer use the site as I had been, to explore music. Before, it was great, I could sample songs and albums left and right, the ones I like I kept, the ones that did not stand the test of time were deleted. But with a small fixed number of tracks a month, I felt I could not afford to "take a chance" on something that I *might* like, especially when it was now cheaper to buy used CDs off amazon instead.

So yeah, bring back "download all you want" mp3 for $20/month, and I'll be there. Until then, I'll be getting my music via used CDs and libraries.
posted by fings at 7:03 PM on August 9, 2010 [2 favorites]

I'd really like to see some stats on how much BMI actually disburses to songwriters, versus how much goes to smiley-face charts and the like.

Also, predictable that they are bragging about the omniscient Blue Arrow software (great name, btw); yet it seems they are not using it for determining how much to pay the artists. Instead they are using "an appropriate surrogate — local radio or TV — that reflects a sampling of bars and restaurants in the area". We'll detect even small samples of our music in the background of your music when you pay us, but when we pay you, it's kind of an average based on some other business deals that we had handy.
posted by breath at 7:03 PM on August 9, 2010 [3 favorites]

Man, as much as I love this discussion (digital media wrecks everything: good or bad?) we sure have it a lot on the Blue.

But hey musicians, books are going that way too, if it's any consolation. Writing and releasing a book has never been easier. Getting paid any kind of significant scratch for it, not so much. As soon as most books are digital, I guess we'll start seeing sympathetic articles about book-copyright agents in the Times too?

A professional and successful writer I respect and follow online posts frequent rants about the theft of rights and unauthorized book duplication, and I feel for her, because it's her income at stake. She gets really angry at anyone who tries to tell her, look it's coming and it's not stoppable, and she advocates for DRM and spyware and whatnot, and it's sad, because none of that is going to help.

I'm not as blase about the "let old models die, it's natural and good" because, you know, old models dying tend to take people's livelihoods down with them.

The Times profile did give me kind of an icky feeling, in the way it blatantly tried to make us feel bad for the poor rights collector lady and the poor music industry struggling in the cruel winds of change. I mean, ok, yes, but given that the Times tried to paywall itself recently, it reeks of propaganda.
posted by emjaybee at 7:04 PM on August 9, 2010 [3 favorites]

Okay, so how do y'all propose a songwriter get paid?

Get a different job. Lots of people can't make a living doing what they "want" to do--lumberjacks complain that they can't cut down trees; autoworkers complain that they can't make autos; typesetters complain that they can't find typesetting jobs; guitar players complain that there aren't enough clubs; authors complain that nobody buys their stories; bootmakers complain that they can't sell enough boots; what do they all do? They get jobs that they can get paid for.

but the idea that, since people don't want to pay for stuff, they shouldn't have to is a little... disconnected from reality.

This sentiment completely misses the reality, which is: When people don't want to pay for stuff, they're not going to pay for it. Cf. overyield there simply is no longer a liquid market for songwriting.

Having been both a song writer, a guitar player and a typesetter, I can tell you that it's an absolute bitch when you can't get paid to work anymore. But, c'est la f****** vie, man.
posted by carping demon at 7:05 PM on August 9, 2010 [12 favorites]

both three of 'em.
posted by carping demon at 7:07 PM on August 9, 2010 [5 favorites]

I know this may seem a little crazy, but the main reason the arts are dying right now is because the middle class can't afford anything other than basic necessities. There are plenty of people choosing between gas and food. No one is going to drop $10 on an album when that's enough gas to get to work and back. Basically anything that they can get for free will be consumed. If they can't get it for free, then they just ignore it.

Even beyond that, I don't know if artists or evil pricks who claim they help artists can legitimately arrive at the conclusion that they are losing a lot of money. Downloading MP3s is sort of like downloading anything else. A lot of times people download things just because they can, not because they are willing to bet that it will be worth money to experience. The thing ASCAP and BMI are probably upset about is that you can't just put out a commercial for a record and make a million dollars anymore. If it sucks, not only are people going to download it and subsequently forget about it, but they won't even bother to buy a high quality version or go see your show or buy a t-shirt off your website.

People, in general, have never bought tens of albums every month. It's the same as it is now, but instead of hearing music on the radio or borrowing a tape from a friend, you just download the album. Personally, if I fall in love with an album, I try to buy direct and get LPs with download tickets. With my favorite bands I even pre-order to get limited edition prints, and try to see them when they come to town. Anyone who isn't changing their business model accordingly is destined to be out of business.

If I had any advice for bands, it would be this: give standard quality songs away on your website, so people at least go there to get them. That gives you a shot at selling them something or getting them to one of your shows. Just make sure it's easier than hitting a torrent website. Charge $5 for a high quality download, or $10 to add the LP, or $20 to get the collectors edition and maybe a cool 7 inch b-side. (On of my favorite bands even sells used and signed washboards from their show for $100. That's fucking brilliant.) Tour and don't try to rip people off for the tickets. If your stuff doesn't suck, you may not be rich, but you're not going to be poor either. If your art is more important than your paycheck, who cares anyway. If you get a legion of true fans, they're going to buy your stuff. They will want to give you money because they love your art.

On the other hand, if you'd rather be rich, maybe you could get a job working for some dinosaurs in LA who sue little girls for a living. I hear it pays pretty well, but the man paying you is going to want something in return.
posted by atypicalguy at 7:08 PM on August 9, 2010 [1 favorite]

My own opinion, for whatever it's worth: what BMI and ASCAP claim compensation for is ridiculous. Public performance of a song ought not require payment to the songwriter. Use of the tune in a commercial setting, yes, but not if it's simply in public. This is an important distinction, but one which BMI and ASCAP don't really seem to care about.
posted by koeselitz at 7:10 PM on August 9, 2010

Okay, so how do y'all propose a songwriter get paid?

Not all of us are performers!

Oh, the market will work it all out.

It's just that, as always, simple supply and demand curves don't begin to reflect the complexity of the real world, and the market clearing price for songs quickly becomes "zero dollars, plus a bit of guilt and a tiny amount of bandwidth".
posted by pompomtom at 7:10 PM on August 9, 2010

Microsoft could have sprung for some decent music on Forza 3. That would have generated some royalties for someone, I guess. I remember everyone being so gaga about the soundtrack for the original Gran Turismo, what with Garbage and the Chemical Brothers. I had to switch off the music track in Forza 3, I found it so terrible. I thought about ordering the GT soundtrack on mp3 to play in the background instead, but it was not available.
posted by nervousfritz at 7:11 PM on August 9, 2010

I have a hard time seeing a catastrophic end-game where people stop making music because it's all pirated.
1) Most of the people I know who make music never expected to make any money off of it and it's good stuff.
2) My life would be no better or worse if I had never heard of Animal Collective, even if I'm a huge fan now that I have heard it
3) This may be a different category of discussion, but music editing software is almost as easy to pirate as music is, and it's shockingly easy to make something listenable or even catchy with the right software, based on stuff I've seen floating around Facebook.
posted by EtzHadaat at 7:12 PM on August 9, 2010

Okay, so how do y'all propose a songwriter get paid?

Get a different job.

they're hiring down at mickey d's
i guess i'll go sign on
this writin' songs is deader 'n dead
hey man, those days is gone.
i'll flip some burgers 'n dunk some fries
i'll do it, don't you doubt it,
'n when i get back home, with my minimum wage
i'm gonna write you a song about it.
posted by flapjax at midnite at 7:14 PM on August 9, 2010 [15 favorites]

flapjax, w/ a standard blues riff? Nice.
posted by emjaybee at 7:21 PM on August 9, 2010 [1 favorite]

standard blues riff?

Yup, that'll work. I've basically always got the blues rattling around my in head.
posted by flapjax at midnite at 7:26 PM on August 9, 2010 [1 favorite]

The comments here are a collected bag of stupid.

1) ASCAP, BMI And SESAC Continue To Screw Over Most Songwriters

I'm sure you were so concerned about artists before file sharing technology. This is a weak excuse to screw the artists over a little, based on the flimsy pretext that they will magically get money.

2) I don't pirate music, but if I did I would feel remorse for ripping-off the songwriters, musicians, singers, engineers and producers, but not the record companies, promoters, agents, and other assorted dirtbags in da biz.

Hmm. Because promoters don't do anything, right? I was under the impression that they promoted. I guess people just get famous by accident. Spoken like someone who is sure that a job they don't understand must be useless.
posted by snookums at 7:30 PM on August 9, 2010

Because promoters don't do anything, right? I was under the impression that they promoted. I guess people just get famous by accident.

(a) Yes, you know what, a lot of them do get famous by accident.
(b) A system in which artist A is crap but can afford to pay a good promoter, while artist B is a genius but can't afford to pay a promoter is intrinsically fucked if artist A then goes on to "get famous". A system in which promotion and marketing are dead, and luck and meritocracy rule is the one I prefer, thank you very much. I prefer art not to be a product marketed to me like fucking toothpaste.
posted by Jimbob at 7:35 PM on August 9, 2010 [2 favorites]

Q: Okay, so how do y'all propose a songwriter get paid?
A's: You think BMI is going to pay you? / Get a different job.

Cool, but now answer her question. She didn't make an assertion ("BMI will pay me"), and she didn't ask how to make a living wage.

Because the alternative retort that has been voiced in this thread is, "Music is free now." Some of you really believe that, too—that if a musician makes a recording, then you have a right to own a copy of it. Musicians should flip hamburgers or work in IT if they care about food and shelter, or perform if they want to get paid for making music, but recordings are free now because of computers, the end.
posted by cribcage at 7:50 PM on August 9, 2010 [3 favorites]

I prefer art not to be a product marketed to me like fucking toothpaste.

While this is a noble sentiment, I can't imagine your personal collection of Favorite Music doesn't include a huge number (in all likelihood, a majority) of bands and artists that were marketed to you. That is, unless the lion's share of folks you listen to and include among your favorites are, say, your friends and neighbors. People you listen to as they strum their guitars on your back porch.
posted by flapjax at midnite at 7:50 PM on August 9, 2010

I know a few producers, song-writers, label owners, promoters, and agents, and almost all of them are working their asses off to bring music they believe in to the public, and I wouldn't consider any of them parasites. They do contribute something valuable to society. Some artists are immensely talented and prolific and having people who can do the business stuff for them let's them create more work. At their best, that's what 'industry people' do.

One thing I have noticed though, is that promoters, label owners and agents I know are all making a living doing what they are doing full time, while most of the actual music producers and song writers I know are not. I think that's largely due to the way that money flows in the business.

Bands almost never get money from their fans directly. It always gets filtered through label owners and promoters, and they generally get what's left over after everyone else gets enough to make their living, which is usually almost nothing. Except for 'headliners', who are really the only people that get paid before the promoter does, and it's a tiny percentage of working musicians who have that kind of pull.

I guess what I'm saying is, if you're interested in earning money as a musician, form a personal relationship with your audience, and make them understand that they need to buy stuff from you for you to continue to be able to make new work. And if you ever start making enough music and money that hiring people to take care of business stuff makes sense, then do that. But don't let labels ever think that you work for them.

Look at Penny Arcade, and what they've managed to do with a moderately sized fan base (compared to a lot of bands). Those guys are millionaires, and I bet they have a lot more money than a lot of artists who are a lot more famous than they are.

And if you can't find enough people to give you money to do so that you can earn a living, then, in all seriousness, you should probably get another job.
posted by empath at 8:00 PM on August 9, 2010 [4 favorites]

The future of music recording and sales, at least part of it, probably looks a lot like what Tom Milsom and Scotty Dynamo are doing. I'm not worried at all.
posted by LastOfHisKind at 8:02 PM on August 9, 2010

i pay the artists directly. i do this with the musicians who have created a system for me to pay them directly. cultivating smaller, but more rabid, fan bases is working really well for a lot of different type of musicians.
posted by nadawi at 8:09 PM on August 9, 2010

Cribcage, St. Alia: But the problem is that the answer to the question of how a songwriter gets paid is pretty much the same as always, that they need to write a hit song and have it performed by somebody huge or played in something popular.

I don't have a huge problem with the idea of PROs, per se, though threatening Girl Scouts over "Happy Birthday" is some bullshit, and the practical administration of royalty disbursement is often deeply fucked in a way that excludes thems with the least power. I just want to see a massive expansion of what's understood as fair use, including expanding what's non-commercial work.
posted by klangklangston at 8:09 PM on August 9, 2010

That brings up an interesting point, flapjax. There is a tremendous library of mp3s available that were written and recorded by dead people; you've featured many in various posts. During the '60s I watched a fella methodically tie up the rights to all the records of a man who had died many years before this fella (definitively no relation to said man) had been born. Are you interested in making a case that this fella should make a penny from anybody for this?
posted by carping demon at 8:12 PM on August 9, 2010

Are you interested in making a case that this fella should make a penny from anybody for this?

Absolutely not interested, carping demon! I don't support or endorse such a thing.
posted by flapjax at midnite at 8:14 PM on August 9, 2010 [1 favorite]

While this is a noble sentiment, I can't imagine your personal collection of Favorite Music doesn't include a huge number (in all likelihood, a majority) of bands and artists that were marketed to you.

This is certainly true of a lot of the big bands I've been listening to for years. But what do you consider "being marketed to"?

I'm listening to my local community radio station, who plays a lot of local music (in fact, they are probably the only radio station on earth that plays 99% of these local bands) - bands just drop in their demos and releases and the station, run by volunteers, funded by grants and listeners, plays these songs. I like some of the songs, I go check out the band's website that they put together themselves, download some of the tracks that they recorded and produced themselves. Was I "marketed to"? I guess I was, in that I'm part of the "market" that the radio station aims at, and the band gave the station their album so it could be played to people like me. No money changed hands, though.

What about if I go browsing, say, Jamendo, or Archive.org, listening to tracks from loads of different artists, and download an album from one I like. Was I marketed to? Well the band put their album up there so people could find it, I guess, but I used the tools available to browse the music, sample the selection, and choose based on my personal preference. No promoters or advertising folk between me and the musicians.

Surely this is different than commercial radio stations being paid to play a song 6 times a day, or a paid-for ad on a website telling me to go buy the latest Lady Gaga single on iTunes?
posted by Jimbob at 8:26 PM on August 9, 2010

David DeBusk, who was vice president of business development when I met him this spring but has since left BMI, offered to show me how Blue Arrow works. An employee punched a few keys to find out which radio stations in Germany were playing “schlager music,” a bizarrely kitschy form of country pop. One tap of the keyboard, and we were listening live: Oom pah pah, oom pah pah. We went on to display all stations, worldwide, playing Swedish death metal. Did I want to see which ones were playing compositions by the composer Milton Babbitt? How about radio stations in Laos?

Want.
posted by madajb at 8:30 PM on August 9, 2010

Wouldn't the notion that musicians would make music anyway end up privileging those that have the money & time to be able to afford making music? There goes a lot of voices and a lot of talent that don't have the privilege to be heard or produced.
posted by divabat at 8:31 PM on August 9, 2010 [2 favorites]

Okay, so how do y'all propose a songwriter get paid?
Get a different job. Lots of people can't make a living doing what they "want" to do

The problem with this is that artists would have to make the choice between the investment necessary to produce their best work and this "different job" you're talking about.

Making music is fun enough that you'd still get people who are talented enough to do both producing stuff. Maybe even good work. Not their best, though, and in many cases, not even their continued work: not what they could have produced if they'd been able to pour themselves into it instead of writing TPS reports.

It's totally true that we're not going back, nor do I think we should. And it may be most of us don't really want people's best/continued work more than we'd like to cherry pick freely from the volume of what people will produce without compensation. But it's also true that there's a cost when we choose not to pay for these things, and I think we're better off if people remember that most everyone has limited time and resources and paying musicians for what they do lets them spend more of that on making music.
posted by weston at 8:33 PM on August 9, 2010 [2 favorites]

I like how a handful of commenters here even read the post, much less the actual article, which has nothing to do with record companies or individuals pirating music, etc. Probably the few comments which were on topic are actually from people who already read The New Yorker.

I'm sure for every post on Metafilter probably a lot of the comments are from people who didn't bother to read and just guessed what the topic was, but for this post in particular it is really obvious and amazingly pervasive.
posted by snofoam at 8:34 PM on August 9, 2010 [4 favorites]

koeselitz: Where were they when Biz Markie needed defending in 1992? Oh, that's right – hip hop songwriting didn't count back then. By the time BMI and ASCAP decided to wake up and take care of their constituents, the damage was already done – and that court case pretty much destroyed a good chunk of the cool stuff going on in hip hop at the time.

A good point, and an excellent track.
posted by paisley henosis at 8:36 PM on August 9, 2010 [1 favorite]

I think you'll find the current system is already biased against musicians with no time and money, divabat. How many hit singles have you heard coming out of, say, Malawi or Sierra Leone lately?
posted by Jimbob at 8:37 PM on August 9, 2010 [1 favorite]

Jimbob: so the solution is to just maintain the status quo, or - worse yet - tip it so that it's less likely that anyone beyond Upper Middle Class Dude will get heard?
posted by divabat at 8:57 PM on August 9, 2010 [1 favorite]

snofoam: “I like how a handful of commenters here even read the post, much less the actual article, which has nothing to do with record companies or individuals pirating music, etc.”

True enough. I've been feeling that for a while here, actually.

It's cute how we're talking about online piracy, but this is about public performance. And, though the article is a bit oblique about what exactly that entails (maybe that's why we're not really dealing with the issue at all) it's not at all an easy thing.

For example, flapjax at midnight: have you ever performed a cover song in public? Hmm? How would you like it if you were required to pay every time you perform a cover song in public? That's the ASCAP / BMI way. And the funny thing is how they enforce that; they won't go after you if you're too small to attract any notice – and they won't go after you if you're too huge to take down. They will only go after you if you're modestly successful. So the musicians and bands, particularly independent ones, who are just making it are the ones who get hammered by ASCAP and BMI.

That's not cool. Since I discovered this a few years ago, I've felt this way.
posted by koeselitz at 9:00 PM on August 9, 2010 [1 favorite]

1) ASCAP, BMI And SESAC Continue To Screw Over Most Songwriters

I'm sure you were so concerned about artists before file sharing technology. This is a weak excuse to screw the artists over a little, based on the flimsy pretext that they will magically get money.

A thief whining about getting ignored, well, just doesn't garner my sympathy. Your comment is a weak excuse to put the blame of broke artists completely at the feet of someone downloading songs, based on the flimsy pretext that the artist would magically get money that could be collected by these groups.
posted by inigo2 at 9:04 PM on August 9, 2010

The two things I have to say about this (and I apologize if this has been mentioned already) is 1. The performance rights organizations are pretty pissed about piracy, to the point of screwing their biggest customers, radio stations, digital and terrestrial. I know, it sucks. And 2. Some people, it seems, think that piracy magically began when they invented MP3s (and/or Napster/Limewire). When this is not the case, the big issue from way back when was people recording songs from the radio on to a cassette tape, then sharing it.
posted by thebenman at 9:16 PM on August 9, 2010 [1 favorite]

Because the alternative retort that has been voiced in this thread is, "Music is free now."

What? The thread is about BMI / PRO, not downloading music. These systems and organizations existed pre-mp3s and audio tape. My comment, which you quoted and then distorted, was on topic. Don't put words in my mouth. I do not think "music is free now". I do think and always have thought that BMI / ASCAP / SOCAN are rackets.

It's not my job to come up with a better system. It's theirs. Having a big pool that spills out to those it probably shouldn't is not a business model many people can get behind.
posted by dobbs at 9:18 PM on August 9, 2010

Jimbob: so the solution is to just maintain the status quo, or - worse yet - tip it so that it's less likely that anyone beyond Upper Middle Class Dude will get heard?

I've been thinking of a witty retort, some reasoned argument why this won't happen, but I can't. I just don't feel it will be this way. Because while Sony certainly aren't helping some guys in Malawi hit the top of the charts, the internet doesn't discriminate nearly as much, and it's only getting cheaper and more democratic. The fact that there's less money to be made in music may well be offset by the fact that you need to spend less money to make music.
posted by Jimbob at 9:23 PM on August 9, 2010 [2 favorites]

By the way, I don't think the detour into "piracy" in this thread is that much of a problem. The issue of ASCAP etc. not really getting money to artists came up, which led to questions of what options are left if artists are no longer making money from songwriting royalties OR music sales. The issues are connected.
posted by Jimbob at 9:26 PM on August 9, 2010

"She understood why musicians wanted their money, she said, but she didn’t feel too excited about paying her share."

Heh, the musicians, songwriters, agents, managers and various hangers-on got their money when the CD/mp3/digital-crystal-chip-of-the-future was purchased.

What they are after here is extra money.
posted by madajb at 9:35 PM on August 9, 2010 [1 favorite]

A long time ago, my Dad played in bands on the radio. Live. That was his living. When records became popular, live house bands on the radio dwindled and disappeared. His job evaporated.

That's why I've studied science/engineering not music, even though I'm a member of BMI and I'm in a few bands.

He and I both play music to preserve our sanity above all else. He's made money occasionally from it, and we have family that have made a living from it. Beyond songwriting and playing easy to get to shows, it's really hard work for sporadic pay.
posted by nutate at 9:52 PM on August 9, 2010

There have been forces over the last century and a half that have worked to commoditize music, and we have lost sight of the fact that music is fundamentally a social phenomenon. In allowing ourselves to be influenced this way we have lost a great deal of music's true value. Possibly the internet will help us get it back.
posted by carping demon at 9:58 PM on August 9, 2010 [5 favorites]

"The problem with this is that artists would have to make the choice between the investment necessary to produce their best work and this 'different job' you're talking about. "

This is the way it has always been. I'd love if people would beat a path to my door to get, oh I don't know, hand set mosaic tile showers installed. But they aren't; practically no one can afford that and there is lots of competition out there for the jobs that do exist. So here we are doing mundane jobs that are commercially competitive and none of that art is being created except in cases of personal use or personal favour trade jobs where the pay back isn't money.
posted by Mitheral at 10:05 PM on August 9, 2010

From the article:

P.R.O.’s license the music of the songwriters and music publishers they represent, collecting royalties whenever that music is played in a public setting. Which means that if you buy a CD by, say, Ryan Adams, or download one of his songs from iTunes, and play it at your family reunion, even if 500 people come, you owe nothing. But if you play it at a restaurant you own, then you must pay for the right to harness Adams’s creativity to earn money for yourself. (emphasis mine)

To be clear, this is an article about BMI pursuing licensing fees for commercial uses of members' music. Dance clubs, radio ads, bars, coffee shops, and so on use that music to make money for their businesses. Even Lawrence Lessig thinks that this is a clear and appropriate application of copyright, only expressing concern over its expansion to public but non-commercial uses.

I don't think existing copyright law serves the public interest, and I don't think that collecting copyright fees at the point of purchase will remain more feasible than the difficult to implement but more socially beneficial "ipod tax" proposals.

But here, I don't see why I should side with one corporate entity against another corporate entity when both exist for the sole purpose of making money. One is simply demanding the other subsidize it by providing products for free (resulting in reduced royalties to the artists, of course). BMI isn't going to destroy music by refusing, the businesses have no right to expect other businesses to give them free stuff to use in their own pursuit of dollars, and there's an simple way to make sure that the thing we really value still gets done.

We could just subsidize the artists directly, after all.
posted by Marty Marx at 10:50 PM on August 9, 2010

OTOH, y'all better be taking up collections and buying us poor songwriters Apple computers and software and such. Because that stuff doesn't buy itself.

why? - i don't need anyone to take up a collection for a computer or musical instruments, i've already bought them - and i'll get more as time goes on

---

Wouldn't the notion that musicians would make music anyway end up privileging those that have the money & time to be able to afford making music?

making 30k a year while paying child support and working up to 68 hours a week must make me privileged than, because i manage to make music anyway

it's been a lifelong dream of mine to have a multi-track recording studio with instruments and now i have that thanks to today's technology

it'd be nice to make some money at it, but if i don't, i'm going to do it anyway, for free, because it's what i want to do

i'm getting tired of all those who want to pity the poor musicians and the poor songwriters because YOU DON'T SPEAK FOR ME
posted by pyramid termite at 10:56 PM on August 9, 2010 [5 favorites]

i pity the poor immigrant
who wishes he would've stayed home

(wonder if ol' Bobby D would've kept it up if he'd never made money at it...)
posted by flapjax at midnite at 11:57 PM on August 9, 2010

atypicalguy: "I know this may seem a little crazy, but the main reason the arts are dying right now"[citation needed]

Are you really claiming that art is dying? There is more music, film, and graphic art being produced every day than I could consume in my lifetime.
posted by mullingitover at 12:38 AM on August 10, 2010

Here is where I am right now, I pretty much don't pirate music anymore. The big album downloading I did just occurred at the transition between the CD era and the Napster era. I took everything I had already bought and pirated it. When I pirate anything anymore it is usually one of those old albums I loved.

I tried Rhapsody for the iPhone for a similar function, plus any album I wanted to try, but the app was truly god awful the last time I tried it. It was easier and quicker sometimes just to torrent and transfer to the phone, not that I bothered that much unless I suddenly had a drunken urge for "Songs You Know By Heart" or something.

I listen to Pandora. Free, minimal ads, you get to hear a lot of new stuff. It doesn't lead me to albums though, because that is just too much trouble. Give me a GOOD subscription service and I will go back to them, but for now singles are where it is at and no one will pay for a single when they can just hear it on YouTube free and legal.

Cable TV is the model, people are comfortable with subscriptions, but music will have to keep the price down. TV has you by the balls for stuff like live sports and events or people would be pirating that more instead.

How is this for a vision? A subscription music service with unlimited album and single downloads, a complete music video catalog, and an EXTENSIVE schedule of live and archived music performances webcasted, big and small? How about you give those songwriters a chance for an international live audience and maybe they won't feel so screwed and will have an easier time giving you that HIT SONG you want?
posted by furiousxgeorge at 1:11 AM on August 10, 2010

pyramid termite: i'm getting tired of all those who want to pity the poor musicians and the poor songwriters because YOU DON'T SPEAK FOR ME

good for you - you don't speak for me either.
posted by divabat at 2:17 AM on August 10, 2010

interesting thread...

regarding music being free: it is. get used to it.
this doesn't mean that we need to take sides over the ethics of its free-ness, but you can surely agree that if you want it you can get it and you don't have to pay for it unless you want to.

i find a particular set of my catalog is bundled up very nicely in torrent-world including my only vinyl release. it's done at sufficiently high quality that the band i made that stuff with has decided we aren't even going to reprint the initial album of our collaboration. what's the point? we could throw in some stickers and a t-shirt with every order, maybe.

i do shipping for a friend's vanity label. we get very few orders, but so many kids into the tastemakers of ethnic collusion sonics know who he is and it's fascinating. i know he's making money and it all seems to come from performance.

the moral of this limp tale: play a lot; record a lot; put as much out there as possible; any crazy idea you get for marketing go for it. something will work.
posted by artof.mulata at 2:31 AM on August 10, 2010 [1 favorite]

Meanwhile, nobody works for free.

Huh.

There is plenty of 'free as in beer' software and quite a bit of music that is 'free as in beer'.

And copyright did expire on plenty of music - so that too is now 'free as in beer'.

I don't like the DMCA and try not to feed the star making machinery behind the popular songs - so rather than being a free man in Paris I've opted to stop consuming music. I have the CDs and LPs bought in the past and fill the "music void" with podcasts. I'm not in the habit of listening to music anymore - I don't wanna feed the same beast that paid for the DMCA.
posted by rough ashlar at 2:49 AM on August 10, 2010 [1 favorite]

I'm a member of BMI.
Okay, so how do y'all propose a songwriter get paid?
Not all of us are performers!

And how do you "feel" about:

One proprietor of a small restaurant in Western Massachusetts, who says he’s lucky if 25 people show up for live music on Tuesdays and Thursdays, has written letters to each of the PROs explaining that entertainers in his establishment play only originals and traditional folk songs, which aren’t protected by copyright.

"They wrote back and said, 'I don’t believe you,'" he said.

or

Bruce Schrader, who owns the Sacred Grounds Coffee House, tried to keep his open mics going by having his performers sign waivers stating they were playing only their original songs. Nevertheless, he was faced with demands for $6,000 in license fees from the agencies and had to shut down the weekly event last year.

Sure sounds like being part of BMI means that you are part of a group of extortionists.
posted by rough ashlar at 4:17 AM on August 10, 2010 [3 favorites]

Coming a little late to this party, but this is vaguely related to an ongoing academic project of mine.

I would direct your attention to Wheaton v. Peters, 33 U.S. 591 (Peters) (1834). Yes, that's an early nineteenth-century Supreme Court opinion. Justice Marshall's last, actually. It contains this key quote

The argument that a literary man is as much entitled to the product of his labor as any other member of society cannot be controverted. And the answer is that he realizes this product in the sale of his works when first published.

Early on, the Supreme Court was pretty apathetic about royalties. Why? Because royalties are essentially the transformation of an author into a publisher, and copyright is really only intended to protect authors.

Hear me out.

When an author writes a book or a songwriter a song, the only way they get paid is if they get published. But publication is an entirely different activity than authorship. The cost of authorship are almost purely opportunity costs: any time or effort spent writing is time and effort not spent doing something else. But the cost of publication are more like the risks of any other commercial venture: you pay a fixed amount for a product and hope to sell that product for more than you paid for it. In this case, the publisher is agreeing to pay an amount to the author in exchange for the right to publish the work in question.

But here's where things get interesting. If the author retains all the risks of authorship and the publisher all the risks of publication, the benefits of those activities remain with their respective parties. The author will be paid a relatively large fixed sum by the publisher to compensate him for his time and creativity, and the publisher will be paid an unknown but hopefully greater sum by the public in exchange for his bringing a new work to market. No royalties are involved. What royalties amount to is, in effect, a transfer of some of the risks of authorship to the publisher and some of the risks of publishing to the author. The author will accept a lower up-front price in exchange for a share in the risk of publication, i.e. any profits the publisher makes at market. If the work is commercially successful, he makes more money than he would have if he'd taken a lump sum, but if it isn't, he gets less. Risk transfer, pure and simple. This lets the publisher, in effect, borrow from the author by paying him less for his time, which ties up less of his capital and enables him to work with more authors at once.

Let's go back to Wheaton then. The case involved a dispute between two publishers of the Supreme Court Reporter--note that "Peters" is both a party to the case and the name associated with that volume of U.S. Reports--where Wheaton asserted perpetual common law copyright, which he argued entitled him to royalties from Peters. The Supreme Court rejected this argument, finding that if an author is unhappy with the amount he's getting paid, he should have asked for more up front, because royalties are not really a copyright issue.

If this were accepted as true, the idea that copying music, movies, books, whatever, hurts artists would be problematic. It would hurt them insofar as they have gone into business as publishers, just as it would hurt publishers insofar as they have gone into business as authors, but it does not necessarily implicate authors as such.

Needless to say, I tend to view arguments by the copyright industry, which is an industry essentially founded on regulatory arbitrage, i.e. a massive government giveaway, with a somewhat jaundiced eye.
posted by valkyryn at 6:20 AM on August 10, 2010 [6 favorites]

emjaybee: I'm not as blase about the "let old models die, it's natural and good" because, you know, old models dying tend to take people's livelihoods down with them.

Well, by that argument, cars should be heavily restricted or outright illegal, because they put buggy-whip makers out of business.

I saw an awesome explanation of this once... I don't remember where anymore. That person pointed out that buggy whip makers failed because they thought they were in the business of making buggy whips. They were actually in the business of transportation acceleration, and those that didn't adapt to the new reality went the way of the dodo. We'd have been very silly to subsidise their old businesses just to protect their jobs.

Likewise, I think the music industry thinks it's in the business of selling records. They're actually in the business of promoting and distributing music, but most of them don't seem to have figured that out, or if they have, they realize that there won't be as much money in the new model. Whichever they happen to believe, they're trying to force us to keep them in their plush lifestyles forever.

We didn't make cars illegal to protect buggy whip makers, and we shouldn't be making music sharing illegal to protect record companies. It's up to them to survive by providing a service that the economy wants, not to extract revenues by force using the guns of the government.
posted by Malor at 7:02 AM on August 10, 2010

Prior to the marriage of Rock and Roll and radio, musicians starved.

Which is totally true, but in general we try to keep people from starving, don't we?
posted by kingbenny at 7:45 AM on August 10, 2010

BMI certainly comes out looking better than the RIAA does in similar enforcement stories.

That's because the article is an absurd piece of BMI propaganda that contains no dissenting voices at all and doesn't even contain the relevant facts (which is to say, it's a New York Times article).

For example, in a piece about PROs enforcing the public performance right in small establishments there is no mention -- NO MENTION -- of the homestyle exception (17 U.S.C. 110(5)(A) and (B)) which says that the vast majority of truly small establishments don't have to pay royalties at all. So the "little coffee shops" and such that Ms. Baker is "crying" about because they are so difficult probably have no obligation to pay BMI anything at all under the applicable statute. That's something BMI's much-touted questionnaire no doubt fails to mention. The large strip clubs and live music honkey-tonk joints aren't covered by the exception, so they pay because they have to.

Also this statement from the article: "That’s because in 51 years, BMI has never lost a single case it has tried." is simply flat-out wrong. A modicum of fact checking would have revealed that the PROs have had a number of serious losses recently in what is commonly called the "Copyright Court" here in the SDNY and that's why they are stepping up enforcement on the little guys.

God I hate the Times.
posted by The Bellman at 7:48 AM on August 10, 2010 [5 favorites]

The bar where bands I was involved with played had that same "all originals" policy. Didn't mean a thing to the licensers. I think they finally caved in after years of threats and harassment.
posted by Jimmy Havok at 8:53 AM on August 10, 2010

Aetius Romulous: Funny thing about the new music biz - there has been an explosion of performance and creativity that has no equal in the biz. It is astonishing the amount of music that is being produced - brilliant music - from basements, bedrooms, and beer halls.

Really? My overall impression of popular music produced out of "basements, bedrooms, and beer halls" during the file-sharing era is that it falls considerably short of "brilliant."

koeselitz: My own opinion, for whatever it's worth: what BMI and ASCAP claim compensation for is ridiculous. Public performance of a song ought not require payment to the songwriter. Use of the tune in a commercial setting, yes, but not if it's simply in public. This is an important distinction, but one which BMI and ASCAP don't really seem to care about.

This is, I believe, a misstatement in the article. Or, if not, then their use of "public setting" and "commercial setting" are synonymous. One example made is: ". . . if you buy a CD by, say, Ryan Adams, or download one of his songs from iTunes, and play it at your family reunion, even if 500 people come, you owe nothing. But if you play it at a restaurant you own, then you must pay for the right to harness Adams's creativity to earn money for yourself." It doesn't matter whether that family reunion is in your backyard (a presumably "private setting") or in Central Park (a "public setting")... you still don't owe a royalty. It's when you start playing the music in a setting where you stand to make money, and where having customers listen to the music enhances your ability to make money (why else would you play it?) that you owe a royalty.

To make some other clarifying examples: If you own a restaurant and the staff plays a CD back in the kitchen, you do not owe a royalty; if you play the same CD in the dining room for paying customers, you do owe a royalty. As for bands playing covers... if the band is not being paid to perform, then the band does not owe a royalty for playing the cover; if the venue where the cover band is performing is not making money in connection with the performance, then the venue also does not owe a royalty. Royalties are owed by the band or the venue when money starts to be made in connection with the performance of the music.
posted by slkinsey at 9:28 AM on August 10, 2010

My overall impression of popular music produced out of "basements, bedrooms, and beer halls" during the file-sharing era is that it falls considerably short of "brilliant"

Really, all music since 1995 or so?
posted by empath at 9:46 AM on August 10, 2010

So much of this thread seems to be focused on the question of whether music is or ought to be free for the consumer, new methods of distribution to customers etc rendering the old system obsolete. But what the article is talking about is whether music ought to be free for people who are making money off playing it.

My wife's parents are songwriters who have written a few minor hits. They still get some airplay, but most of their income comes from the fact that their songs are the particular favorites of a certain type of advertising. Used car companies, for instance, use their music to promote their own products. The idea that they should be able to do so "free" is as absurd as suggesting they should be able to grab stock footage of cars off the internet for free instead of licensing it from the production company.

Bar owners and others who play music in public commercial venues are no different. They are making money by using work belonging to other people. As the article notes, the fees aren't unreasonable: a small dive bar might pay $200 a year while a massive club might pay the maximum of $9000. Business has costs, you know, and you've got to pay for what you use.
posted by gabrielsamoza at 11:04 AM on August 10, 2010

The bar where bands I was involved with played had that same "all originals" policy. Didn't mean a thing to the licensers. I think they finally caved in after years of threats and harassment.

Isn't that racketeering?

(Not that it always matters, as I've commented in the past.)

Royalties are owed by the band or the venue when money starts to be made in connection with the performance of the music.

And the funny thing is how they enforce that; they won't go after you if you're too small to attract any notice

The funnier thing: I actually volunteered to pay for performance rights years ago when I had an act that included two covers and a booking that was a nice $500 + travel costs. At least, I tried. I contacted both ASCAP and the publishers. I got either "I don't know what you should do" or "don't worry about it -- the venue should take care of this."

Meanwhile I have acquaintances who've personally seen their work performed in concert by bona fide famous country stars and strangely don't see what they'd expect coming in from the PROs.
posted by weston at 11:54 AM on August 10, 2010 [1 favorite]

slkinsey: “Really? My overall impression of popular music produced out of ‘basements, bedrooms, and beer halls’ during the file-sharing era is that it falls considerably short of ‘brilliant.’”

I almost feel as though this apparent disgust for newer music completely disqualifies you from talking about this, since music has changed so much in the last ten years, and since the changes it's gone through have a lot to do with the new directions it's taking. But I'll leave that where it is.

me: “My own opinion, for whatever it's worth: what BMI and ASCAP claim compensation for is ridiculous. Public performance of a song ought not require payment to the songwriter. Use of the tune in a commercial setting, yes, but not if it's simply in public. This is an important distinction, but one which BMI and ASCAP don't really seem to care about.”

slkinsey: “This is, I believe, a misstatement in the article. Or, if not, then their use of "public setting" and "commercial setting" are synonymous. One example made is: ". . . if you buy a CD by, say, Ryan Adams, or download one of his songs from iTunes, and play it at your family reunion, even if 500 people come, you owe nothing. But if you play it at a restaurant you own, then you must pay for the right to harness Adams's creativity to earn money for yourself." It doesn't matter whether that family reunion is in your backyard (a presumably "private setting") or in Central Park (a "public setting")... you still don't owe a royalty. It's when you start playing the music in a setting where you stand to make money, and where having customers listen to the music enhances your ability to make money (why else would you play it?) that you owe a royalty... To make some other clarifying examples: If you own a restaurant and the staff plays a CD back in the kitchen, you do not owe a royalty; if you play the same CD in the dining room for paying customers, you do owe a royalty. As for bands playing covers... if the band is not being paid to perform, then the band does not owe a royalty for playing the cover; if the venue where the cover band is performing is not making money in connection with the performance, then the venue also does not owe a royalty. Royalties are owed by the band or the venue when money starts to be made in connection with the performance of the music.”

No. The article claims this, yes; it is flatly incorrect. I'd even say it's a lie, considering that the sources are ASCAP. In all the situations you describe – a cover band playing for free in public, a public wedding, a party in the park, the back room of a restaurant, etc – the ASCAP could and probably would demand royalty fees.

The ASCAP makes a well-established claim that it is owed royalties on all 'public performances' of songs in its catalog. For a clear and unequivocal definition of what the ASCAP defines as a "public performance," see their informative document here:

A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet. Generally, those who publicly perform music obtain permission from the owner of the music or his representative.

In short, to ASCAP, it simply doesn't matter if your performance is commercial or not. If you're a jug band playing on a hill in the park – if you wouldn't take money even if people offered it – they still want your royalties. This is why ASCAP has pursued so many apparently foolhardy causes like attempting to sue the Girl Scouts to the tune of $1200 per camp for singing around camp fires and attempting to find a way to collect a public performance fee every time someone's musical ringtone goes off. These are situations where there is no question that there's commercial benefit involved – the Girl Scouts are a non-profit organization, and you obviously don't charge anyone to listen to your ringtones – and still ASCAP believes that a public performance fee should be charged.

This amounts to a kind of extortion. Moreover, it's indicative of ASCAP's vast misunderstanding of the music landscape that we sit on today. ASCAP has continually blundered through their approach to modern music; the latest snafu from a few months ago involved ASCAP actually claiming that Creative Commons undermines copyright. This is hugely ironic, considering that Creative Commons is a method whereby millions of artists and creators out there today have put their stuff into the world, and often gotten compensated nicely for it, without paying an extortion fee to a protection racket. It's one more good reason why nobody should hand their money – that is, their royalties – over to ASCAP.

gabrielsamoza: “Bar owners and others who play music in public commercial venues are no different. They are making money by using work belonging to other people. As the article notes, the fees aren't unreasonable: a small dive bar might pay $200 a year while a massive club might pay the maximum of $9000. Business has costs, you know, and you've got to pay for what you use.”

No. This isn't about bar and restaurant owners – an easy-to-malign group, which is why ASCAP so frequently claims that its main 'clients' are 'strip club owners' and such. It's about people who want to perform music for free, people who want to sample music in free creations, people who want to share stuff and put it out there. ASCAP is byzantine; it offers no way of doing any of these things without paying extortionate fees. That's why Creative Commons is really the only worthwhile route for the creator today who wants a way to copyright her or his works in such a way that the creator, not some suit in an ASCAP/BMI office millions of miles away, has control over what happens to it.

Let me take a common and (I think) sufficiently modern example:

Say you – you're someone I've met over the internet, right? – have recorded a song that I think has some awesome riffs in it, some really stonking bits. And say that I'd like to take those riffs, sample them, and mash them up into a great new dance track that's nothing like the original. The most rational thing for me to do, of course, is to go to you, the creator of the sounds in the first place, and ask if I have permission to do that. So I do that. What happens?

If you've signed your soul away to ASCAP: nothing. Your hands are tied. You cannot give adequate permission such that I won't be sued by ASCAP. Sure, you can say I have permission, and I can say you gave me permission – but those samples will not be judged 'legally cleared' until ASCAP has given it the okay. So – you call ASCAP and say: "koeselitz wants to use a sample of my music; he has permission." What will they say? "No." According to the ASCAP, I must clear my samples with them – and that means paying exorbitant license and royalty fees every time I perform the song using those samples. At that point, they'll happily offer me a 'clearance pack' whereby I can pay thousands of dollars to use the sample for a limited number of times or maybe even over the course of a few years. And then, they'll pocket most of that fee, telling you that it's mostly going to "processing costs" and suchlike nonsense.

But – what if you've released your music with your own Creative Commons license? Then, when I ask you if I can sample your music, you can just say yes; it's your music, under your license, and there's nothing anybody can do to stop that from happening. If you want, you can change the license, so that anybody is allowed, even without asking to sample your work, so long as they don't use the entire song. Or, if you decide you don't like me, you can change your license so that nobody can sample it. It's up to you – it's your license.

Seriously, there is no longer any reason that anybody should be forking over their hard-earned cash to ASCAP. I know a lot of people who've made modest amounts of money in music over the last twenty years, and you know how much of that cash has been in ASCAP checks? That's right. Zilch. Nada. It's a racket, folks. You're getting nothing. Hold on to your licenses; control them yourselves. In the era of the internet, this is now not only possible – it's easy. And it's a hell of a lot more profitable than going with the music mafia.
posted by koeselitz at 12:22 PM on August 10, 2010 [8 favorites]

Okay, so how do y'all propose a songwriter get paid?

Get a different job.

And I guess that can go for all the writers, filmmakers, actors, whatever. Trouble is, a lot of these disciplines take a lot of time and work to get any good at. First Radiohead album? It's no OK Computer. Question is, would they, doing it in their spare time, be able to progress enough to make an album like the Bends or OK Computer or (insert your favourite bands album here)?
posted by ciderwoman at 1:16 PM on August 10, 2010 [2 favorites]

What if they weren't? It does go for all the writers, filmmakers, actors, and whatevers. Everything good takes a lot of time and work. For whatever reasons, we've produced an economy that doesn't allow much time for those kinds of things to be done.
posted by carping demon at 2:17 PM on August 10, 2010

don't see what they'd expect coming in from the PROs.

Jimmy Buffet pays up...although there's some evidence that the person writing the checks is baked. My buddy wrote "The Natives are Restless Tonight" like, 30 years ago, somehow Buffet got hold of it, and so he gets a thousand-dollar check every once in a while.
posted by Jimmy Havok at 3:53 PM on August 10, 2010

Personally, I don't mind my music going out for free IF no one else is making money off it. If someone else IS making money off it they dang well better be giving me an appropriate cut.
posted by St. Alia of the Bunnies at 5:40 PM on August 10, 2010

St. Alia of the Bunnies: “Personally, I don't mind my music going out for free IF no one else is making money off it. If someone else IS making money off it they dang well better be giving me an appropriate cut.”

I think that's a really fair and sensible way to feel about your music. That's why I encourage people to avoid ASCAP – because they won't let you license your music that way. They don't allow specialized licensing that does what you're saying you want to do; they simply put you under their umbrella and collect royalties, and try to sue the pants off of anybody who uses your music for anything. And they'll file those lawsuits in your name, without even getting your consent.

Licensing your own music via Creative Commons, however, allows you to put those stipulations on it – for example, you can apply a Creative Commons copyright to your music and state that it may only be used for non-commercial public performances, or (what's better, I think) that any public performances must be non-commercial and must allow the same use. In short, you have total control. And you don't have to give some money to ASCAP for their trouble. In a day and age when you can know pretty much instantly whether anyone's using your song for any significant purpose, and when it's so much easier to manage your own creations and give yourself that control, I don't think it makes sense anymore to keep giving it up to ASCAP that way.

Just my opinion, anyway.
posted by koeselitz at 6:04 PM on August 10, 2010

BMI owns my rights for two years. But the Creative Commons approach is intriguing.
posted by St. Alia of the Bunnies at 6:58 PM on August 10, 2010

"A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet. Generally, those who publicly perform music obtain permission from the owner of the music or his representative."

This is the Copyright Act's definition of public performance. 17 USC s. 101. ASCAP, BMI, and SESAC's raison d'etre is to collect royalties for the public performance of musical works on behalf of their members. This is an exclusive right of the copyright owner, and not one that must be licensed, like the right to make copies of a composition.

You can cite the places where it appears they went too far (e.g., their stance on ringtones, which I didn't agree with), but I haven't seen anything to suggest they lie or cheat. What do you expect them to do?
posted by pollex at 7:41 PM on August 10, 2010

pollex: “You can cite the places where it appears they went too far (e.g., their stance on ringtones, which I didn't agree with), but I haven't seen anything to suggest they lie or cheat. What do you expect them to do?”

Well, first of all, I didn't say they lied. I said that this article lied – and while it's a matter of debate whether they lied or simply were misled, the fact is that the article is wrong. It claims that free public performance isn't something ASCAP or BMI claim for. That isn't true, as you yourself have said.

But ASCAP and BMI have indeed misled people. Most recently, they put Bruce Springsteen's name at the top of a lawsuit without telling him they were doing so. He was quite annoyed when he found out, too. They're constantly pushing the courts to extend copyright in more and more outrageous directions. And perhaps the most misleading and untruthful thing ASCAP has ever said is their claim to members that Creative Commons is "undermining" copyright. That, my friend, is a lie.

What do I expect them to do? Protect their members' rights. Respect their members' wishes. Become advocates for creation and artistry, and drop the whole protection racket act. But I suspect that ASCAP and BMI, like so many very large 'non-profit' organizations, are funneling money into so many pockets and handing stuff out under the table to so many people that they couldn't quit now if they wanted to. No single 'non-profit' should be the conduit for a billion dollars a year; it's just begging for corruption, and I'm sure that corruption exists there in spades.
posted by koeselitz at 7:56 PM on August 10, 2010 [1 favorite]

The point of BMI or ASCAP, is that they have a collections arm, which means that you don't have to do it yourself. If you go Creative Commons, which is great, you do have to be willing to do enforcement yourself. On the other hand, if you're not a moneymaker for the PRO, you're not a priority.
posted by klangklangston at 11:01 PM on August 10, 2010

"But ASCAP and BMI have indeed misled people. Most recently, they put Bruce Springsteen's name at the top of a lawsuit without telling him they were doing so. He was quite annoyed when he found out, too."

He should have been annoyed with his attorney, who didn't properly explain the PRO agreement to him.
posted by pollex at 11:28 AM on August 11, 2010 [1 favorite]

Which is totally true, but in general we try to keep people from starving, don't we?

I think that's a worthwhile point, and makes me realize how funny it is to see a bunch of ostensible liberals suddenly become hardcore "if they can't make a living anymore, fuck 'em" free market fundamentalists when music/movie/book payments/royalties/copyrights are discussed in the Blue.
posted by Amanojaku at 11:36 AM on August 11, 2010

I think that's a worthwhile point, and makes me realize how funny it is to see a bunch of ostensible liberals suddenly become hardcore "if they can't make a living anymore, fuck 'em" free market fundamentalists when music/movie/book payments/royalties/copyrights are discussed in the Blue.

Liberal doesn't mean what you think it means.
posted by empath at 12:15 PM on August 11, 2010 [1 favorite]

It really is just a matter of priorities. I'm of the opinion that more information of all kinds should be put in the hands of more people, and whether and how the person who originally 'created' that information (or more realisticly, the massive corporation that owns the rights to that information) is compensated is a secondary concern.

I'm also of the opinion that single moms and college kids shouldn't be sued into bankruptcy for downloading a Shania Twain album, or whatever.

I don't think either of these are libertarian, free market positions, and 'information wants to be free' is about as leftist a position as you can take.
posted by empath at 12:21 PM on August 11, 2010 [2 favorites]

This debate would be a lot better if people were never allowed to reference 'massive corproations'. It just doesn't help because not everything that people don't want distributed for free comes from a 'massive corproation' and any solution that's going to be found has to be fair to those in the less emotive set as well.
posted by ciderwoman at 1:56 PM on August 11, 2010

I don't think you can ignore the fact that the primary income earners for copyright materials are record labels and movie companies, with actual artists earning a tiny percentage of it.
posted by empath at 2:13 PM on August 11, 2010

Liberal doesn't mean what you think it means.

Yes, I grant I was being a bit imprecise, but I think kingbenny's point that we tend to be willing to financially support things we deem valuable, as a community, while still conspicuously defaulting to "get a different job" or "they're like buggy whip makers" when something we want for free is on the line, is valid, and not much of an anti-corporate position.

That said, you're right about priorities. I simply feel like compensating the people who make the information that wants to be free is vital to them continuing make more of that information in the future.
posted by Amanojaku at 4:19 PM on August 11, 2010

Right, I think the difference here is that all of that stuff is going to get done regardless. I tend to kind of think of progress as inevitable.

Just as an example, the guy that just posted the potential P != NP proof. He gets a million dollars if he's right. Do you think he's working on it to win the million dollars?

Also, I'm in favor of a vigorous social safety net so starving artists don't literally have to starve, even if nobody buys their stuff.
posted by empath at 5:00 PM on August 11, 2010

I guess what I mean is that, to me, leisure time seems more important than anything else in terms of how creative work gets done. And I support social policies that enable more people to have more leisure time. I don't think that we need 'professional artists', we just need to structure society and our economy in such a way that people with a creative inclination have time to be creative. That should be the primary goal here.

Sure, that can be done by giving them money in return for selling copies of their work, but that's not the only way it can be done. Having generous social programs, education subsidies, etc, and so forth can also accomplish the end goal, and you don't even really need to particularly target artists.
posted by empath at 5:03 PM on August 11, 2010 [2 favorites]

Last additional thought -- for example -- liberal policies like health care reform would be a big step in terms of allowing people the freedom to create. Right now, you can't realistically quit your job and still have health insurance. So if I, for example, wanted to take 2-3 years off to work on the great american novel or record an album, I'd basically be boned if I got sick, even if I had enough money saved up to eat and pay rent for that whole time period if I was frugal.
posted by empath at 5:08 PM on August 11, 2010

Empath, you're not one of them "professional leftists" are ya?
posted by carping demon at 10:21 PM on August 11, 2010

Oh, and on a somewhat different but closely related front, there's this.
posted by carping demon at 10:29 PM on August 11, 2010

I want my films made by 'professional artists' please, not someone doing it at the weekend.
posted by ciderwoman at 4:16 AM on August 12, 2010

[few comments removed or fixed. calling users by their old usernames not at all okay ever at all ever, okay?]
posted by jessamyn at 12:49 PM on August 16, 2010

Hey, sorry about that, guys. Totally spaced on the new name thing. Wasn't at all intentional.
posted by klangklangston at 8:48 PM on August 16, 2010

Yeah, I could tell he just spaced. No harm done as far as I am concerned.
posted by St. Alia of the Bunnies at 4:47 AM on August 17, 2010

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