| Foreword to the Fourth Edition |
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xvii | |
| Preface |
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xxi | |
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DVD and Free CLE Credits for Attorneys |
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xxiii | |
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xxiii | |
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xxiii | |
| Introduction: The Current State of the Music Business |
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xxv | |
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I Current State of the Recording Industry: Cataclysmic Decline from Approximately 14.5 Billion in 1999 to Less than 7 Billion Although Revenues Have Not Decreased as Much in the Last Several Years |
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Cataclysmic Decline in Revenue |
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The Majors: Further Consolidation but Continuing Relevance |
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xxix | |
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The Emergence of Streaming as the Revenue Model of the Future |
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xxx | |
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Paid Subscription vs. Ad-Supported, On-Demand Streaming |
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xxxiii | |
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Lack of Success in Converting Listeners to Customers |
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xxxiv | |
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Will Streaming Turn Around the Record Business's Cataclysmic Decline? |
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xxxiv | |
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Apple's Purchase of Beats Music |
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xxxv | |
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Licensing Recordings for Movies, TV, Games, and Ad Campaigns |
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xxxv | |
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II Music Publishing Business: Performance Income Up, Mechanical Income Down, Total Income Stagnant |
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xxxvi | |
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What Are Publishing Revenues? |
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xxxvii | |
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Global Publishing Revenues |
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xxxvii | |
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xxxviii | |
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III Current State of the Touring and Live Performance Business: The Only Sector of the Music Business That Is Making More Money than Before 1999 |
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xxxix | |
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Gross Income vs. Guarantees and Net Profits |
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xl | |
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Anecdote from My Own Practice |
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xli | |
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xli | |
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Stars vs. Indie Artists and Baby Bands: A True Case of "Income Inequality" |
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xli | |
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xlii | |
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V Current Conditions for Most Full-Time Musicians: Overall the Same as in Prior Years; Digital Has Not Lived Up to the. Promise of Leveling the Playing Field |
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xliii | |
| Part I: Music Law And Business Practices |
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Chapter 1 Music Law and Business Primer |
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1 | (68) |
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1 | (54) |
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The "Works" That Copyright Protects, Including Musical Compositions and Sound Recordings |
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1 | (1) |
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The Exclusive Rights That Copyright Affords |
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2 | (1) |
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Copyright Registration: Why Do It, and How |
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3 | (1) |
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3 | (1) |
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3 | (1) |
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4 | (2) |
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Works Originally Created on or after January 1, 1978 |
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4 | (1) |
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5 | (1) |
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Special Rules for Sound Recordings |
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5 | (1) |
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Termination Rights (How to Get Your Copyrights Back) |
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6 | (5) |
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6 | (1) |
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Special Issues Regarding Termination of Post-'78 Sound Recordings |
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6 | (1) |
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7 | (1) |
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The Artist May Not Be the Only Author |
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8 | (1) |
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8 | (1) |
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The Steps Artists Need to Take to Terminate Grants |
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9 | (1) |
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9 | (1) |
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When Must Notice Be Served? |
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9 | (1) |
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9 | (1) |
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To Whom Should Notice Be Sent? |
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9 | (1) |
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How the Fair-Use Doctrine Applies to the Music Business |
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9 | (1) |
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Performing a 30-Second Excerpt to Sell Ringtones Is Not Fair Use |
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10 | (1) |
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Using 15-Second Excerpts in a Documentary Is Fair Use Since the Use Was "Transformative" |
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10 | (1) |
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11 | (1) |
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Creative Commons: An Alternative to Copyright |
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11 | (2) |
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Attribution Noncommercial No Derivatives (BY-NC-ND) |
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12 | (1) |
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Attribution Noncommercial Share Alike (BY-NC-SA) |
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12 | (1) |
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Attribution Noncommercial (BY-NC) |
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13 | (1) |
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Attribution No Derivatives (BY-ND) |
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13 | (1) |
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Attribution Share Alike (BY-SA) |
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13 | (1) |
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Music Publishing Business |
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13 | (22) |
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Principal Sources of Income |
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13 | (1) |
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Public Performance Rights and Royalties |
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14 | (1) |
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The PROs: ASCAP, BMI, and SESAC |
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14 | (1) |
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Origins and the Direct-Payment-to-Writers Business Model |
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14 | (1) |
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Who They Represent and the Purpose They Serve |
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15 | (1) |
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How They Operate and the Direct-Licensing Controversy |
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15 | (1) |
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Important and Growing Source of Income |
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16 | (1) |
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How Much Various Users Pay the Pros |
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16 | (1) |
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How They Pay Their Members |
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16 | (1) |
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17 | (1) |
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17 | (1) |
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Mechanical Rights and Royalties |
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18 | (1) |
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Section 115 Compulsory License |
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18 | (1) |
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19 | (1) |
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20 | (1) |
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Sheet Music and Other Sources of Income |
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20 | (1) |
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20 | (1) |
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21 | (1) |
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Role of the Music Publishers |
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21 | (1) |
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21 | (1) |
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21 | (1) |
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Music Publishing Contracts: Single-Song, Traditional-Term, Co-Pub, and Admin Deals |
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22 | (1) |
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Other Players: Sync Reps and Music Libraries |
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23 | (1) |
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Interview with Jake Wisely, Cofounder of Bicycle Music |
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23 | (5) |
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Interview with Adam Taylor, President of Leading Music Library APM Music |
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28 | (7) |
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35 | (9) |
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Why Radio Does Not Pay for Broadcasting Sound Recording |
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35 | (1) |
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36 | (1) |
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37 | (3) |
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40 | (1) |
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41 | (1) |
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41 | (1) |
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41 | (1) |
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Advances and Recording Royalties |
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42 | (1) |
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Standard Deductions to the Artist's Royalty |
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42 | (1) |
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Recoupment at Artist's Royalty Rate |
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43 | (1) |
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Controlled-Composition Clauses |
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43 | (1) |
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The 360 Deal and How to Avoid Getting Completely Screwed |
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44 | (16) |
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48 | (1) |
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Role of Major Labels: Interview with David Massey, President of Island Records |
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49 | (6) |
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Role of an Indie Music Label: An Interview with Jay Frank, President of DigSin Music (How to Run a Successful Record Label by Giving Away the Music for Free) |
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55 | (5) |
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60 | (4) |
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60 | (1) |
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61 | (3) |
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Definition of the Commission |
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61 | (1) |
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Duration of the Agreement (The Term) |
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62 | (1) |
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How Long the Manager Is Entitled to a Commission |
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62 | (1) |
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63 | (1) |
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Other Important Terms and Issues |
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63 | (1) |
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Interview with Emily White, Cofounder of Whitesmith Entertainment |
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64 | (5) |
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67 | (2) |
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Chapter 2 Practical Advice in Response to Clients' Most-Asked Questions |
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69 | (22) |
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Somebody Stole My Song! What Can I Do? How Much Can I Get? |
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69 | (6) |
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How Can I Protect My Name or My Band's Name? How Much Will It Cost? |
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75 | (13) |
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Protectable Forms of Marks |
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75 | (1) |
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76 | (1) |
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The Benefits of a Federal Registration |
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77 | (1) |
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78 | (3) |
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81 | (1) |
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82 | (3) |
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Special Update for 4th Edition |
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85 | (3) |
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How Can a Music Lawyer Help Me? Will My Lawyer Shop My Music, and How Much Will It Cost? |
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88 | (3) |
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Chapter 3 Overview of Digital Music Law |
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91 | (5) |
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91 | (1) |
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Statutes Applicable to Distribution of Digital Music: AHRA, DPRA, and DMCA |
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91 | (1) |
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Audio Home Recording Act of 1992 |
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91 | (1) |
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91 | (1) |
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The Digital Performance Right in Sound Recordings Act of 1995 |
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92 | (1) |
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The Digital Millennium Copyright Act of 1998 |
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92 | (1) |
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Distributing Digital Music: Downloading, Interactive Streaming, and Noninteractive Streaming |
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92 | (1) |
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92 | (1) |
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93 | (1) |
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Noninteractive Streaming, Including Webcasting and Satellite Radio |
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93 | (1) |
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Application of the Copyright Law and the Statutes to Downloading, Interactive Streaming, and Noninteractive Streaming |
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93 | (3) |
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93 | (1) |
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94 | (2) |
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96 | (7) |
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96 | (1) |
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How Much the Services Pay for Copyrighted Music |
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96 | (1) |
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How the Money Flows from the Services to the Labels, Artists, Publishers, and Songwriters |
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97 | (6) |
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How Much the Labels Receive |
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97 | (1) |
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Major Record Companies and Their Wholly Owned Affiliates |
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97 | (1) |
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98 | (1) |
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How Much the Artists Receive |
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98 | (2) |
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98 | (1) |
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Eminem's Lawsuit against Universal |
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99 | (1) |
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99 | (1) |
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How Much the Music Publishers Receive |
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100 | (1) |
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Mechanicals: DPDs Are Subject to the Statutory Rate |
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100 | (1) |
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Downloads Are Not Subject to Public-Performance Royalties |
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101 | (1) |
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Previews of Songs Are Subject to Public-Performance Royalties |
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101 | (1) |
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How Much the Songwriters Receive |
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101 | (2) |
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Chapter 5 Interactive Streaming |
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103 | (10) |
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103 | (1) |
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How Much the Services Pay for Copyrighted Music |
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104 | (1) |
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How the Money Flows from the Services to the Labels, Artists, Publishers, and Songwriters |
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105 | (8) |
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How Much the Labels Receive |
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105 | (2) |
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Major Labels and Their Wholly Owned Affiliates |
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105 | (2) |
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107 | (1) |
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How Much the Artists Receive |
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107 | (2) |
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107 | (1) |
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"Breakage"—Are the Majors Paying Artists Properly? |
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107 | (1) |
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108 | (1) |
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Is Spotify Underpaying Indie Artists? |
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108 | (1) |
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Another Controversy: The Majors' Equity Interests in Interactive Digital Services |
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109 | (1) |
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How Much the Music Publishers Receive |
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109 | (2) |
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Statutory Rate Applicable to Audio Interactive and Limited Download Services |
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110 | (1) |
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How Much the Songwriters Receive |
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111 | (6) |
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111 | (1) |
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111 | (2) |
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Chapter 6 Noninteractive Digital Streaming, Including Webcasting and Satellite Radio |
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113 | (10) |
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113 | (1) |
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How Much the Services Pay for Copyrighted Music |
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114 | (2) |
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How the Money Flows from the Services to the Labels, Artists, Publishers, and Songwriters |
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116 | (1) |
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How Much the Labels and the Artists Receive |
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117 | (2) |
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The Services Pay SoundExchange and It Pays 50 Percent to Artists and 50 Percent to Sound Recording Copyright Owners |
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117 | (6) |
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How SoundExchange Calculates the Value of Each Performance |
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117 | (1) |
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The Rates Payable by Various Noninteractive Streaming Services |
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118 | (1) |
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Stand-Alone Digital Services, Including Pandora |
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118 | (1) |
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119 | (1) |
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Broadcast Radio Services That Simulcast Their Signal |
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119 | (1) |
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119 | (1) |
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How Much the Publishers and Songwriters Receive |
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119 | (1) |
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Performance Rights in Pre-'72 Recordings: Lawsuits against Sirius XM and Pandora |
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120 | (3) |
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Chapter 7 The Direct-Licensing Controversy |
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Will Publishers Be Able to License Public-Performance Rights to Digital Music Services Directly (Instead of through the PROs), and What Are the Consequences for Songwriters? |
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123 | (8) |
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123 | (1) |
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123 | (1) |
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Consent Decrees and the "Rate Court" |
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124 | (1) |
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Major Publishers Make a Move but the Rate Court Rebuffs Them |
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124 | (1) |
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The ASCAP-Pandora Rate Proceeding and Judge Cote's Summary Judgment Decision (September 2013) |
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125 | (1) |
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The BMI-Pandora Rate Proceedings and Judge Stanton's Summary Judgment Decision (December 2013) |
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126 | (1) |
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The Publishers' New Strategy: Amend the Consent Decrees |
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126 | (1) |
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Why Direct Deals May Be Horrible for Songwriters |
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127 | (2) |
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Many Writers Are "Unrecouped" |
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127 | (1) |
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Publishers Generally Do Not Have to Share Advance Monies with Their Songwriters |
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128 | (1) |
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Direct Deals Could Hurt Independent Publishers and Songwriters |
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128 | (1) |
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Proper Solution to Avoid Screwing the Writers |
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129 | (1) |
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Final Note: Even if the Consent Decrees Are Amended and Major Publishers Withdraw Digital Rights from ASCAP and BMI, Certain Songs in their Catalogues, Including Huge Hits, May Be Excluded |
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129 | (2) |
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Chapter 8 International Digital Music Licensing |
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131 | (14) |
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Overview of the Global Digital Music Business |
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131 | (1) |
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Introduction to Global Digital Music Licensing |
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132 | (1) |
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Interview with International Copyright and Music Attorney Amanda Harcourt |
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132 | (15) |
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Distributing Digital Music |
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132 | (2) |
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Impact of Foreign Publishing Business Practices on Direct-Licensing Controversy in the US |
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134 | (1) |
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134 | (2) |
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136 | (5) |
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141 | (4) |
| Part II: Music Clearances |
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"Music clearances" means licensing songs that were previously written and musical recordings that were previously produced and commercially released. It does not pertain to original music written for a particular project. Part II provides the basic legal principles and business practices pertaining to clearing music for a wide variety of both traditional media projects and stand-alone digital ventures. |
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145 | (2) |
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Chapter 9 Introduction to Music Clearances |
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147 | (8) |
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147 | (1) |
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Copyright Owners: Music Publishers and Record Labels |
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147 | (1) |
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Sync License vs. Master-Use License |
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148 | (1) |
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When You Don't Need to Clear the Master |
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148 | (1) |
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148 | (1) |
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.Labels' "Blocking Rights" |
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149 | (1) |
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150 | (1) |
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150 | (1) |
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Special Rules for Public Broadcast Stations Are Favorable to Producers |
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150 | (1) |
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151 | (1) |
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Most-Favored-Nation Clause |
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151 | (2) |
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153 | (1) |
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153 | (1) |
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Public-Performance Licenses and Cue Sheets |
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153 | (1) |
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154 | (1) |
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What if You Can't Find the Copyright Owner? |
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154 | (1) |
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Chapter 10 Audiovisual Projects |
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155 | (16) |
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155 | (3) |
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Standard Terms and Practices |
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155 | (1) |
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155 | (1) |
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156 | (1) |
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MFN's Application to Features |
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157 | (1) |
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Trailers: In-Context, Out-of-Context, and Other Promotions |
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157 | (1) |
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Relationships and Music Clearances |
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157 | (1) |
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158 | (1) |
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Standard Terms and Practices |
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158 | (1) |
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158 | (1) |
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159 | (2) |
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Standard Terms and Practices |
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159 | (1) |
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Strategies for Saving Money |
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159 | (1) |
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160 | (1) |
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160 | (1) |
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Discounts for Very Obscure Music |
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161 | (1) |
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161 | (2) |
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161 | (2) |
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Discounts for Benefit Concerts |
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163 | (1) |
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163 | (5) |
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A Brief History of Music in Advertising |
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163 | (1) |
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Standard Terms and Practices |
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163 | (1) |
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164 | (1) |
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Other Factors in Determining Price |
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165 | (1) |
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MFN, Exclusivity, and PRO Licenses |
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166 | (1) |
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166 | (1) |
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Practical Tips for Clearing Music in Ads |
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167 | (1) |
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168 | (1) |
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168 | (1) |
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Exhibits and Installations |
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169 | (2) |
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Chapter 11 Audio-Only Clearances, Parody, and Fair Use |
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171 | (10) |
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171 | (1) |
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171 | (1) |
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172 | (1) |
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172 | (3) |
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172 | (1) |
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172 | (1) |
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172 | (1) |
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173 | (1) |
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173 | (1) |
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Are Parodies Protected by Fair Use? |
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174 | (1) |
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175 | (6) |
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175 | (1) |
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176 | (1) |
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176 | (2) |
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When Is Sampling "De Minimis?" |
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178 | (1) |
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178 | (1) |
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178 | (1) |
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The Madonna Case: Conflict between Jurisdictions |
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179 | (1) |
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179 | (2) |
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181 | (6) |
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181 | (2) |
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181 | (1) |
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Standard Terms and Practices |
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181 | (2) |
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Licensing Music for Fashion Shows |
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183 | (4) |
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184 | (1) |
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185 | (1) |
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Licensing Music for Fashion Shows for Television |
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185 | (1) |
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Licensing Music for Fashion Shows for the Web |
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185 | (2) |
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185 | (1) |
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Sync and Master-Use Licenses for the Web |
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186 | (1) |
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Chapter 13 How to Clear Music for Various Stand-Alone Digital Projects |
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187 | (14) |
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187 | (1) |
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187 | (1) |
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188 | (1) |
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188 | (1) |
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How to Avoid Clearance Issues Altogether |
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188 | (1) |
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188 | (1) |
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Music Blogs: A "Gray" Area of Law |
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188 | (1) |
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189 | (1) |
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Public-Performance Licenses |
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189 | (1) |
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189 | (1) |
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190 | (1) |
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190 | (1) |
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Clearing Music for Indie Webisodes and Web Series |
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190 | (1) |
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Crowdfunding Video Promos |
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191 | (1) |
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191 | (1) |
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191 | (1) |
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191 | (1) |
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192 | (2) |
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192 | (1) |
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Major-Label Blanket Licenses Are Expensive |
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192 | (2) |
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194 | (2) |
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Why Permission Is Required |
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194 | (1) |
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Rap Genius and the Fair-Use Argument |
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195 | (1) |
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195 | (1) |
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196 | (1) |
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196 | (1) |
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Ringtones and Ringbacks (Ain't What They Used to Be) |
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196 | (2) |
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197 | (1) |
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Compulsory Licensing for Songs |
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197 | (1) |
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Ringtones Are Not a Public Performance |
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198 | (1) |
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198 | (3) |
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199 | (2) |
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Chapter 14 Tips and Commentary |
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201 | (6) |
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Practical Tips for Clearing Music for Any Project |
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201 | (4) |
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Billboard Commentary: Music Documentary Filmmakers Deserve a Break on Licensing Fees |
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205 | (2) |
| Part III: The Recording Industry In Transition: A Brief History Of Digital Music, Current Status Of The Battle Against Unauthorized "Free" Music, And Current Controversies And Trends |
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Income from sales and licensing of recorded music has dwindled to less than 35 percent of what it was in 1999, accounting for inflation. Part III focuses on the recording industry's struggle to come to grips with the digital era and recover from its precipitous decline. |
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207 | (2) |
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Chapter 15 A Brief History of the Recording Industry's Struggle with Digital Music |
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209 | (10) |
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Introduction: A Business Affairs Conference at Sony Music in 1999 |
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209 | (1) |
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Labels vs. P2P File Trading: Why the Record Industry Supreme Court Victory against Grokster Actually Hurt Its War on Piracy |
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210 | (3) |
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The Legal Battle with Napster |
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210 | (3) |
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Labels vs. the Consumer Electronics Industry and the Failure of the Secure Digital Music Initiative (SDMI) |
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213 | (1) |
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Labels vs. Technology: The Rootkit Disaster |
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214 | (1) |
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Labels vs. Fans: RIAA's Lawsuits |
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215 | (1) |
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Labels Enter the Digital Music Business: MusicNet and Pressplay |
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215 | (1) |
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Labels Give Away the Store: The Birth of iTunes |
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215 | (1) |
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Recording Industry Pushes Antipiracy Legislation but Tech Industry Pushes Back: The Failure of SOPA |
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216 | (3) |
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Chapter 16 Update on Piracy; The Recording Industry's Battle with "Free Music" |
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219 | (10) |
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219 | (1) |
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Pirate Sites; P2P and BitTorrent; and Cyberlockers |
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219 | (4) |
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219 | (1) |
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220 | (2) |
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222 | (1) |
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Private Sharing: Ripping, Burning, Instant Messaging, E-mailing Music Files, USB, and Hard Drive Sharing: A Bigger Source of Unauthorized Free Music than P2P and Cyberlockers Put Together, but One Which the Industry Can Hardly Do Anything to Stop |
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223 | (1) |
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224 | (1) |
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225 | (1) |
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The Forces Amassed against the Recording Industry: Google, Apple, and Other "Partners" |
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226 | (3) |
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Chapter 17 Network Neutrality: What Is It? Will It Survive? And the Consequences of Its Demise for the Music Business |
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229 | (6) |
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229 | (1) |
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Dangers of Eliminating Network Neutrality |
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229 | (1) |
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FCC's Classification of ISPs |
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230 | (1) |
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The Right but Not the Will to Reclassify |
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230 | (1) |
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Current Controversy: The New Proposed Rules and President Obama's Call for the FCC to Reclassify Internet Service under Title II |
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231 | (1) |
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Impact on the Music Business |
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232 | (1) |
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Net Neutrality and Mobile Broadband Services |
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232 | (3) |
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Chapter 18 Current Controversies, Trends and Developments: Discussion with Glenn Peoples, Senior Editorial Analyst at Billboard Magazine |
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235 | (8) |
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235 | (2) |
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Will Streaming Kill Downloading? |
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237 | (1) |
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Will Streaming Save the Record Business? |
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237 | (1) |
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The Significance of Beat Music's Partnership with AT&T |
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238 | (2) |
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Who Does BitTorrent Piracy Hurt Most: Music, Movies, TV, Games, or Porn? |
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240 | (3) |
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Chapter 19 Current State of the Music Business in the Largest Potential Market on Earth—The People's Republic of China |
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243 | (8) |
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Q&A with Eric de Fontenay, Founder and President of China.Musicdish.com |
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243 | (3) |
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Music and Traditional Media in China |
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244 | (1) |
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Music and New Media in China |
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245 | (1) |
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State of Live Music in China and the US |
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246 | (5) |
| Part IV: Winning Strategies And Compelling Ideas |
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Chapter 20 How to Write Hit Songs in the Digital Age |
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251 | (6) |
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An Interview with Jay Frank, Author of FutureHit.DNA |
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251 | (6) |
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Chapter 21 How to Market a Record in the Digital Age |
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257 | (6) |
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263 | (1) |
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Chapter 22 How to Use Spotify to Expand Your Fan Base and Make Money |
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263 | (2) |
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"No One Wants to Talk Numbers When It Comes to Streaming Revenue. Well, Here Are Mine" |
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263 | (2) |
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Chapter 23 How to Use YouTube to Get Discovered (And How to Use MCNs to Expand Your YouTube Audience and Make Money) |
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265 | (6) |
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Using YouTube to Get Discovered |
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265 | (6) |
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How to Use MCNs to Expand Your YouTube Audience and Make Money: Interview with Fiona Bloom, Founder of the "Efficacy Channel" |
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266 | (5) |
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Chapter 24 How to Use Other Digital Tools to Succeed (And Why There Is No Guarantee That They Will Work) |
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271 | (12) |
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Music Blogs: How to Use Them to Get a Deal |
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272 | (2) |
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272 | (1) |
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Which Blogs Should I Approach? |
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272 | (1) |
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How to Attract Bloggers to Your Music |
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273 | (1) |
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273 | (1) |
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Your Website: How to Make It Great and Why It Is Still Important |
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274 | (1) |
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Why Your Own Website Is Essential in Crafting an Online Presence |
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274 | (1) |
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Methods to Easily Create Your Own Website |
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274 | (1) |
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What to Include on Your Website and Why |
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275 | (1) |
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Twitter vs. Facebook: How They Compare in Popularity |
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275 | (6) |
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Twitter: How to Market Your Music and Make Some Money |
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276 | (2) |
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Facebook: Still a Major Force in the Social Media World |
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278 | (3) |
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Facebook for Artists: Do's and Don'ts |
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279 | (1) |
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279 | (1) |
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How to Set Up Fan Your Page and How to Use It |
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279 | (1) |
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The Benefits of Having a Facebook Fan Page |
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279 | (1) |
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How to Use the Facebook Fan Page |
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280 | (1) |
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280 | (1) |
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Why Musicians Don't "Like" Facebook Changes |
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281 | (2) |
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Chapter 25 How to Use Crowdfunding |
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283 | (12) |
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Create a Successful Crowdfunding Campaign: Interview with Brian Meece, Cofounder of RocketHub |
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283 | (6) |
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How to Maximize Your Crowdfunding Campaign and How One Indie Rock Club Used Crowdfunding to Survive: Interview with Nick Bodor, Cofounder of Cake Shop |
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289 | (6) |
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Chapter 26 How to Develop a Successful Internet Radio Station |
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295 | (5) |
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Interview with Elias Roman, CEO of Songza |
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295 | (5) |
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Chapter 27 How a Jazz Club Is Using the Internet to Reach a Worldwide Audience and Create New Revenue Streams for the Artists Who Play There |
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300 | (7) |
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Interview with Spike Wilner, Jazz Pianist and Co-Owner of Smalls Jazz Club in NYC |
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300 | (7) |
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Chapter 28 How to Use a Music College Education |
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307 | (6) |
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Is It Worth the Time and Money? |
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307 | (1) |
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Interview with Jonathon Batiste |
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308 | (1) |
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Interview with Linda Lorence Critelli |
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309 | (4) |
| Acknowledgments |
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313 | (2) |
| About the Author |
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315 | (2) |
| Notes |
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317 | (22) |
| Index |
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339 | |
