Copyright, Music, Writing

Airplanes and Musical Instruments

Flying with an instrument is tough.  Checking an instrument as baggage is both emotionally difficult and physically risky.  The US Transportation Security Administration specifically allows one musical instrument to be carried through the security checkpoint in addition to the one carry-on bag and one personal item, http://www.tsa.gov/travelers/airtravel/assistant/editorial_1235.shtm , but each airline sets its own policies about whether instruments can be carried on.  This means that you should check the individual airline policies BEFORE you book your flight, so you can choose the airline that is most likely to handle your instrument the way you hope. 

Once you buy your ticket and get through security, getting your instrument on the plane can still be a challenge.  A working musician with lots of airline experience offers some very, very practical tips here - http://www.musicianwages.com/cruise-ship-musician/airline-travel-with-musical-instruments/

It is incomprehensible to me that airlines can't show more sensitivity towards the shipping of musical instruments, especially given that thousands of working musicians fly every day, so this is something the airlines see regularly.  I'm thinking there may be changes coming soon, though, thanks to an unfortunate incident between United Airlines and musician Dan Carroll.  After a broken guitar and a pointlessly drawn out quest for compensation (which was ultimately unsuccesssful, Carroll wrote a song about the incident and posted it on YouTube.  United then apologized, but still refused compensation.  Carroll wrote and posted a second song, leading United to finally offer compensation and to ask for permission to use Carroll's videos in training programs for their baggage handlers.

We'll see what happens.

Take a look at Carroll's videos here:

United Breaks Guitars- http://www.youtube.com/watch?v=5YGc4zOqozo&NR=1&feature=fvwp

United Breaks Guitars 2 - http://www.youtube.com/watch?v=h-UoERHaSQg

Tayor Guitars offers travel tips - http://www.youtube.com/watch?v=n12WFZq2__0&feature=response_watch

Musicians are Average People, Too (Even If They're Stars)

I think everyone has heard of "illegal downloading" and has a general understanding of what that is.  But when I say general, I do mean general.

Here's a very simplified explanation: Songwriters make their living by collecting royalties for the use of their songs.  Record companies make their living off the sale of recorded songs.  In the digital world, it's pretty easy to download music without having paid anyone for it.  If the record company doesn't get paid, the songwriter doesn't get paid.  People tend to think songwriters should be paid, but record companies deserve a little pilfering.

And, the average person really doesn't understand any of it very well. They don't equate their own activities with illegal activities.

And a lot of musicians are average people.  They know they want to get paid for their work.  But the complexity of comprehending what and how that should happen is still hard for most people.

And that's why Lilly Allen found herself in hot water with the media when she condemned illegal downloading, but was found to be engaging in the very activity herself. 

Clearly, we have a long way to go before we figure out how to handle music and media in the digital world.

Put It In Writing

Ever wonder why there are so many lawyers?  Basically, because of that old saw, "I'm as good as my word," coupled with a handshake.  In reality, you're as good as the point where your memory and the memory of the person you shook hands with intersect.  In other words, not so much.

Business agreements of all kinds should be put in writing.  It is not a sign of distrust to require a written agreement from someone with whom you do business. In fact, it's a huge red flag if the person does not want to sign a written agreement.  The only benefit that comes from not reducing a business agreement to writing is that is easier to renege on terms and to play dumb on others.  So run from anyone who refuses to put something in writing.

If you're a musician, you'll typically need written agreements in the following situations:

• band structure and payments
• performances (clubs, etc)
• artwork (for merchandise, recordings, websites)
• musician assignments and licenses (for playing on a recording)
• distribution of merchandise
• copyright splits

If you're a writer, you'll typically need written agreements for the following:

• freelance assignments
• copyright licensing (territory, term, media, etc)
• royalties

These are not exhaustive lists.  ANY business agreement should be in writing.  Putting them in writing allows you to:

• remember in detail what was agreed to
• be sure that both parties understand the terms in the same way
• notice additional terms that should be talked over

Don't be afraid of contracts.  Be afraid of handshakes.

Make Money Writing Books and Music

The perennial question of the day is: How do you make money as a songwriter or author?

The perennial answer is: Be good at what you do.

There are, of course, fifty more parts to the answer.  But none of them will do you any good if you are not good at what you do.  And by good, I do not mean that you write formula.  Being good has nothing to do with "selling out," or giving in to corporate myopia, or any other statement that you may use to justify why no one seems to like what you write.  You can be very good at what you do and yet be non-mainstream, innovative, off the beaten track, or just plain experimental.

 But here's the biggest tip I can give you: do not confuse innovative and experimental with untrained or unfinished.  There are precious few naturally formed writers in the world.  There are many naturally gifted writers and musicians, but precious few that create good works without any training, effort, or re-writes.

Daniel Webster was hailed as a naturally gifted orator.  But without training in the rule of law and extensive learning in many subjects, he would have had little to say and been a piss-poor lawyer.

So, work on your craft everyday.  When I hear and read the work that you d me, I want it to sparkle and shine, not because you dipped it in glitter, but because you spent time polishing and shining  your talent and work.

The Silver Recession

Today I want you to click this link and read what I wrote elsewhere. It's about seeking opportunities and why this is a good time to do so.  All the people I work for in my legal practice, and all the writing I do, is aimed at individual people or small companies being run by individual people who don't have the resources to tap into big companies for all their needs.  Kind of frontier-like.  It's just where I think I can do the most good.  And usually I'm talking about how to maneuver despite the fact that you don't have huge amounts of resources in the form of people, money, or expertise.  But this post - the one linked in the first line - talks about why the fact that your resources are more limited can actually be turned to an advantage in the recession. So check it out.

Be a Joiner

If you're a performer, you should look into this brand new group, the Featured Artists Coalition.   They really are brand new, and there is very little information on their website to help me figure out how well they are likely to represent artists, so I am not in any way endorsing or otherwise urging people to join.  But I do think the issues they are focusing on are important and I do think that are right that the performers are often forgotten when copyright issues are discussed, in part because standard business practice in the music industry generally removes performers from the front line of copyright licensing and such.  FAC is right that the performers' voices should at least be heard in the debates over how to pay royalties.

Getting Ready to Make Your First CD

We won't call this a business plan, we'll just call it "Things to think about regarding your recording." (But it's really a business plan.)

Who owns what?  Maybe you think you wrote all the songs, but if the music was developed collaboratively with your other band members, they may actually be entitled to co-writer credit.  Make sure it's clear that you are the writer, if that's what you intend.

The recording itself is a separate copyrightable product, in addition to the songs themselves.  If it's essentially your music project, you are paying for it, and the other players are  really just "workers," and you want to own the masters and all rights to license and make decisions about their use, then you will need to have written agreements from every person who participates in the making of the recording that give you an exclusive right to license and collect royalties. If the band considers it a band project, then all the band members may own the masters, but you'll want to have a written agreement specifying how licensing decisions are made. If you do a copyright registration for the recording, make sure the right people are listed as the owners.

If all band members own the masters, but one person paid most of the recording cost, is there an understanding in place about how money from sales will be distributed?  Actually, no matter who owns the masters, is there an understanding in place about how sales money is distributed?

How do you want to sell it?

If you're only selling at your live gigs, you can pretty much record, master, and be done.

If you want to offer digital downloading, you should obtain ISRC codes and have them added to each track at the time of mastering. They are free and you can get them here: http://riaa.com/whatwedo.php?content_selector=whatwedo_isrc_codes

If you want to sell in a retail store, you should generally have a bar code. The long story about getting bar codes is kind of complicated, but the short story is that there are several places you can get one for a relatively small cost. However, if you'll only be putting CD's on consignment in local area stores, you can probably skip the bar code. If the best case scenario happens and it's a hit and you can get a distribution deal, then you'll probably need to print more copies anyway and can add a barcode to the packaging at that time.

  Most local record stores will take local CD's on consignment. This means they will put your CD on the shelf and pay you if they sell (minus their cut, of course).

If you want to sell online, there are several different ways to do that.

You can sell on your own website, with a  paypal button and you personally sending out cd's as they are ordered.

You can use a shopping cart and merchant account – but this is not worth the trouble if you only have one product and won't be selling much.

You can use CDBaby.com. They are an online distribution and sales service for indie artists. You pay a set-up fee of $35 for each cd, and they give you a personal page on their website to sell your record. You have total control over the content posted. CDBaby will put up song samples, and handles all the orders and shipping. You send them a few CD's at a time and they keep them on hand. They'll let you know everytime you make a sale and ask for more cd's if they sell all the ones on hand. CDBaby also gets your music put up on all the major download sites – itunes, rhapsody, etc.  Then you can link to your cdbaby page on your website and let them handle any orders. CDBaby is not a marketing service, though – it's still up to you to let people know about your music and your record.

Another note about CDBaby – once you have a cd on their service, you can get a credit card machine from them for free and sell at your gigs to people with credit cards. You do the swiping, send the slips to CDBaby and they send you the money. If you're getting good crowds at gigs, cdbaby may be worth it just for the card swiper.

There are new sites and services popping up everyday that allow indie artists to sell their music, so do a little surfing and see what you can find.

How are you going to market your CD?

Website with song samples, links to sales outlets or your own paypal sale button.

Video on YouTube

Music fan sites on the internet

Music chat sites you can frequent

Your gigs – who will sell at the show, will you collect email addresses for a mailing list?

Are there radio shows you want to try and get played on? There are a number of ways to research radio shows and specific programs that would fit your music style. If you plan to work radio, you'll need a budget for envelopes and postage.

Reviews - you can send copies, with written material, to papers and magazines, both print and online, to ask for reviews.  Getting a few positive quotes from a reviewer gives you some credibility on your sales page. You'll need a budget for envelopes and postage if you do this. 

At the beginning of your planning, you have to assess, very realistically, what is feasible and appropriate for the CD. For example, radio play requires a certain level of recording quality, no matter how great the music is. It may be that this first recording just doesn't meet that level, and so your primary goal for the recording might be to have something fans can purchase, and to use it as demos for other gigs. On the other hand, if it does meet radio play quality, you may want to look at that avenue. (Large radio is almost impossible for indies to reach, so you'd be looking at small shows, but they are out there.)

You also may not, realistically, have the ability to reach very many people yet, so you know you won't sell huge numbers of CD's and therefore want to keep production and marketing costs down.

You also need to do a realistic musical assessment.  If the music isn't up to a decent standard, don't bother sending out for reviews.  Most places won't review indie cd's if they're not very good, so you don't risk embarrassment but you will waste your postage money.

How to request permission to use a copyrighted work

The Association of American Publishers (AAP) has a resource page with links to templates and checklists to use in requesting permission to use copyrighted works. If you want to request permission from one of their member publishers, you can even submit the request on a form right through their website. Remember to keep copies of any permissions you receive.

Not All Use Is Fair

[This post was originally published on 3/12/07]

Lest we get caught up in the trees and forget that we are in a forest, I’d like to step back from the fair use discussion for moment and refer readers to testimony given just last month to Congress by the Association of America Publishers (AAP). The chairman of the AAP, Pat Schroeder (yes, the former congresswoman) testified to alleged widespread piracy of books in China, estimated to be costing publishers $52 million a year from print piracy and another unknown amount from digital piracy (online downloads). The AAP is asking Congress to take steps to encourage China to enforce copyright and anti-piracy measures that are apparently being largely ignored.

The Harry Potter Wizards-in-Training
The hugely successful Harry Potter books are among those being pirated in China, along with academic journals and other less commercial publications.

Google, Fair Use, and Turnabout

[This post was originally published on 3/10/07]

Google and Microsoft are both involved in massive projects to digitize full libraries. Google, though, has been criticized for playing loose with the copyrights on some of those books. While both Google and Microsoft are digitizing public domain works, Microsoft claims to only be digitizing copyrighted works for which they have been given permission. Google, on the other hand is digitizing portions of copyrighted works without permission. They assert this is a fair use, because they are copying only small portions for indexing purposes.

I checked the Google search engine homepage, and found a copyright notice at the bottom of it – and the same copyright notice appeared at the bottom of the search pages I ran. Google’s search pages contain a list of sites, a portion of text from each site, the search box, and a few individual words used as links to other google pages, such as “search tips,” “language tools,” and “business solutions.” Not exactly the type of creative work envisioned by copyright law. So what is Google laying copyright claim to? I’m not sure. It’s ironic to me that they make a point to include a copyright notice on a webpage that does not appear to contain any material that would be subject to copyright (there are some trademarkable items on the page), while at the same time pushing “fair use” farther than some observers believe it should be pushed.

A court may yet determine that Google is within fair use standards, but it does make you wonder.