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hwnmusiclives
`Olu`olu
USA
580 Posts |
 Posted - 07/31/2007 : 07:25:21 AM
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quote:
Originally posted by Basil Henriques
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But if so, how can amazon.com, towerrecords.com, and other online retailers get away with putting up 30-second soundclips of every song on every CD they sell?
Because they have the permission of the artiste/record label/publisher to do so. It's given GRATIS for "Promotional Purposes"
Bill, Did you read what I said about European Hosting ?
What's Craig's spin on that ?
I noticed that Craig said "(assuming you don't have permission from the copyright holders to use the music),".
Well ? what's stopping you from aproaching the companies concerned for their permission, "For Educational and Promotional Purposes only" ?
You pose great questions, Basil! And I appreciate your sincere efforts to help me find my way through this. Some thoughts...
I did read what you suggested about European hosting and I have heard of others going that route. However, in the research that Craig set me upon, I discovered that Great Britain, in particular, is well aware of their limitations on copyright and appear to be pushing - harder and more expediently than even the U.S. - toward stopping the hemorrhaging of lost revenues due to inadequate laws. I would hate to get into a situation where I move my hosting to somewhere in the EU and they come up with an even more prohibitive licensing structure than the U.S. ultimately does. It's a guessing game. (And while yours remains an excellent suggestion, I was hoping for a solution that would allow me to use up the remaining 8 months of my costly prepaid U.S.-based hosting.)
But the other thing you propose is more interesting still - approaching the copyright/licensing holders. This a multifaceted task that could be someone's full-time vocation if they wished. (Any takers?) Because first we have to approach ASCAP/BMI for the use of the compositions because they are responsible for collecting the composer's royalty. I doubt they would ever relinquish rights - even for educational purposes - because they are, after all, entities which exist to make money for their clients. (Does anyone recall the scandals of 10 or so years ago in which BMI/ASCAP operatives would infiltrate everywhere from restaurants to Girl Scout jamborees to charge them with illegal use of every song from "Happy Birthday" ro "Kum Ba Ya?" This is why most restaurants do not serve up birthday cake with an out-of-tune rendition of "Happy Birthday To You" anymore - because they don't wish to pay everytime they sing it. But if the Girl Scouts don't stand a chance, I doubt I do, either.) But then there is the issue of the mechanicals to be paid to the performers. I would assume you would approach the performers and/or their record labels. With so many years gone by, many of the artists have passed away and nobody even knows who owns the rights to the legacy of some of these recording labels. But it seems to me that what were once "mom and pop" labels are now owned by much larger entities. Given the number of 49th State Records label re-releases on Cord International, I would assume that Michael Cord now owns this catalog. I don't believe that - as a businessman - he would grant permission for a podcast to use 49th State works and artists for educational purposes when the rereleases he produced were, after all, intended to support Cord International and its employees. But I bet he would be an excellent resource on the ownership of various now defunct labels and he would at least be one opinion on how such labels would feel about the issue of "for educational purposes." I don't know him, but I just might give him a call.
While I am daunted by it, Basil, it really is not a bad idea you propose. What I may end up with, of course, is a show where I can only play music from the artists on the one label that gives me permission, and that show would get pretty monotonous in a few weeks. ;-)
But this issue is what is driving podcasters into the ground and forcing them off the air. What were "labors of love" (like "pirate radio" in the 1950s) have become exhaustive legal entanglements, and nobody who spent 20 hours a week producing a one-hour podcast for free would be willing to spend thousands of dollars to figure out all the legal ramifications to continue to do so for free.
Harkening back to one of my earlier posts on the subject... The irony, of course, is that if the podcasts weren't playing this music, mainstream radio still wouldn't be, either, and the music would remain in unrereleased obscurity. Or, in other words, nobody is making money off of these old recordings now, and nobody has been looking for any money from these out-of-print recordings in eons. It is amateur philosophy, at best, but when is the legislation going to be handed down about used LP and CD sales? Because the artists and composers aren't receiving any money from the second, third, fourth, and subsequent used sales of their CDs. And by logical extension, the reason there are so many used CDs in circulation for sale is because somebody bought them, ripped them to their hard drives and iPods, and then didn't need the originals anymore. Should we not allow the ripping of the CDs (the way that Digital Rights Management does not allow the proliferation of songs purchased from iTunes and other online outlets?) Or should we levy fines against eBay, half.com, and other repositories of used CDs? You could take this even further and make the selling of a used LP of material that has been rereleased on CD illegal, too. It's a ridiculously slippery logical slope we're on here, I think.
But here is the irony to that irony... The artists (You remember them, right? The people who MAKE the music?) receive the smallest percentage of the retail music sales pie. (Basil, can you confirm this?) The artist's record deal usually pockets them 10-14% of the Suggested List Retail Price (SLRP). BUT the SLRP is calculated on a much reduced base after other ridiculous deductions are accounted for. So the CD for which you paid $16.99 may have a calculated SLRP (according to the label) of $8.58. (Visit this link for more: http://www.futureofmusic.org/itunes2.cfm). That means that the artist stands to make as little as $0.85 to $1.20 per CD - which then has to be divided up among the bandmates. (Bandmembers, take note: Go solo now!)
So who is REALLY losing money on these podcasts? |
Join me for the history of Hawaiian music and its musicians at Ho`olohe Hou at www.hoolohehou.org. |
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Retro
Ahonui
USA
2368 Posts |
Posted - 07/31/2007 : 07:51:00 AM
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quote:
Originally posted by hwnmusiclives
But the other thing you propose is more interesting still - approaching the copyright/licensing holders. This a multifaceted task that could be someone's full-time vocation if they wished. (Any takers?)
Companies that use music, such as the one that was my former employer, have entire divisions that pursue and negotiate contract deals to license music usage. Attorneys who specialize in entertainment and intellectual property law are a good place to start.
You have three main areas where you need to get licensing deals - as you already mention, there's the ASCAP/BMI/SESAC-type organizations, then there's the individual record companies that hold rights to the recordings themselves, then you have the individual publishers. All required under the Digital Millennium Copyright Act of 1998.
You are absolutely right, Bill - there are so few opportunities for the type of artists we want to deal with to get exposure, and they also get so little of the income from all the afore-mentioned deals. |
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wcerto
Ahonui
USA
5052 Posts |
Posted - 07/31/2007 : 08:40:15 AM
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| What does Auntie Maria have to do to get her samples on her web site? All it does is help to seel the product. This all goes back to that thread I started a long time ago about how do musicians make money. The bottom line of that thread is that they don't. (except Elvis, I guess). |
Me ke aloha
Malama pono,
Wanda |
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Retro
Ahonui
USA
2368 Posts |
Posted - 07/31/2007 : 10:52:23 AM
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Originally posted by wcerto
What does Auntie Maria have to do to get her samples on her web site?
It's considered fair use for promotional purposes, same as it would be for other online retailers. She doesn't have to get licensing deals with every single artist, record company, publisher, etc. for that. Plus, the clips are streaming audio that isn't capture-and-copy-able (well, technically not, though there are plenty of freeware programs that will capture it. But that's illegal.) |
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keoladonaghy
Lokahi
257 Posts |
Posted - 07/31/2007 : 4:08:27 PM
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My personal policy when I was doing the Nahenahe.net podcasts was:
1) Only play recordings with permission of artist and/or label.
2) Only play songs I felt confident were in the public domain or if I could get permission from the composer.
If there were a reasonable doubt regarding whether or not they were PD, I didn't play them. That ruled out playing a LOT of music, and I'm not 100% certain that I didn't miss anything, but I'm not losing any sleep over it. However, I found that most artists and labels were thrilled to have their music featured. Personally I felt happy to be featuring new compositions as well as older traditional material. Composers were also gracious in allowing me to include their songs, all I had to do was ask. In some cases, the performer was the composer.
Since the Stones came up in earlier in the thread, to quote: "you can't always get what you want, but if you try, sometimes, you get what you need."
I hope that use of that quote falls under fair use ;-)
KD |
Edited by - keoladonaghy on 07/31/2007 4:13:27 PM |
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Rlowenote
Akahai
84 Posts |
Posted - 08/01/2007 : 05:20:36 AM
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A couple of months ago I was notified that Borders would no longer have an Open Mic night. The audience would be 30 - 50 people in the Coffee area, but some complaints were generated about material (too this, too that). We had about 1 1/2 years at the location.
Now I just received notice that performing musicians at Borders will be charged 40% of the CD sales generated at performances at Borders beginning in September.
Ralph |
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hwnmusiclives
`Olu`olu
USA
580 Posts |
Posted - 08/01/2007 : 05:30:05 AM
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quote:
Originally posted by Rlowenote
Now I just received notice that performing musicians at Borders will be charged 40% of the CD sales generated at performances at Borders beginning in September.
Ralph
Regrettably, that is standard industry practice. Of course, I never knew the industry included Borders. But in contracts with other performance venues, the house often requires a cut of CD sales, and the percentage is typically no less than 30% (but is negotiable).
This is why the price of a CD at a concert is often more than the retail price - to cover the house's cut. But it is still wise to purchase CDs directly from musicians at their engagements because they still make more off those sales than they do through retail outlets. |
Join me for the history of Hawaiian music and its musicians at Ho`olohe Hou at www.hoolohehou.org. |
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Rlowenote
Akahai
84 Posts |
Posted - 08/01/2007 : 05:46:03 AM
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That explains why the CD's were more expensive than the DVD's at the last concert I attended.
Do they get of cut of the Tip Jar as well? |
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hwnmusiclives
`Olu`olu
USA
580 Posts |
Posted - 08/01/2007 : 06:08:00 AM
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quote:
Originally posted by Rlowenote
That explains why the CD's were more expensive than the DVD's at the last concert I attended.
Do they get of cut of the Tip Jar as well?
Not my tip jar, they don't. ;-) |
Join me for the history of Hawaiian music and its musicians at Ho`olohe Hou at www.hoolohehou.org. |
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hapakid
Luna Ho`omalu
USA
1533 Posts |
Posted - 08/01/2007 : 07:39:38 AM
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Does anyone know if any songs by Hawaiian royalty, through Lili'uokalani, are under copyright to current music licensing companies?
Andy and I have talked about how to produce a compilation by Taropatch members that could be sold or otherwise distributed and my idea was to limit it to songs of the royalty and earlier songs like "Hawai'i Aloha."
Jesse Tinsley
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Reid
Ha`aha`a
Andorra
1526 Posts |
Posted - 08/01/2007 : 09:53:53 AM
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Jesse, this doesn't answer your question directly, but it is not exactly easy, for other reasons, to acquire "distribution rights" (or whatever the heck it is called) to songs by Queen Lili`uokalani that are contained in the Queen's Songbook. (Including Aloha `Oe, Sanoe, and all the others in that book.)
Sarah created a slack key setting of the song, "Ka Ipo Nohea" (1881), which was, apparently, originally arranged as a choral work. There is no indication it was ever recorded, or even performed, by anyone else - it is listed in the book as "unpublished". Her version (sung,too, of course) was part of an r.m.m.g.a compilation CD, distributed only to contributors, and the words and translation were posted on a website.
In order to get permission, Sarah wrote the Lili`uokalani Trust, Hui Hanai, explaining the situation and asking for that permission. It took about a year, and at least 2 known meetings of the Trustees, at which they considered the request, and judged a copy of the recording that Sarah sent them at their request for evaluation.
Finally, they gave permission, with the caveat that the Trust retained copyright to the words (I don't remember about the rights to the basic melody - but it is in a legalistic document that they sent Sarah) and they required her to send them a finished copy of the CD compilation for their files.
I am totally ignorant of the actual "legal" requirements and other entanglements, but this was an effort to be completely pono.
Bottom line: it was a long, drawn out, unsure process, and even though it did not involve money, it took work and an emotional toll.
...Reid |
Edited by - Reid on 08/01/2007 09:56:37 AM |
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cpatch
Ahonui
USA
2187 Posts |
Posted - 08/01/2007 : 11:51:44 AM
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quote:
Originally posted by hwnmusiclives
I did do some additional research at your suggestion and learned that you are quite an authority on this subject (even if you are not a lawyer). (Craig founded his own awesome podcast - TGN - and was writing a book on the issue of podcasting - a book I will be the first to by when it becomes available.) So I have two questions that hopefully don't sound ridiculous. I hope you are willing to oblige with an answer.
No problem. As for the book, although I've contributed to O'Reilly's "Podcasting Hacks" (including a section on copyright) and been technical editor for two other podcasting titles, I decided not to write a book of my own. Thanks for the plug though!
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1) If I turn off the ability to download the podcast, then it is no longer by definition a "podcast" because it is not a copy and cannot be rewound/fast-forwarded. If I then simply leave the "PLAY" button, does this program then become a stream like Territorial Airwaves? http://hawaiian105.com/MARKET/shared/ads/territorial_airwaves.html
It should be, yes.
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2) Can you say more about the "30 second myth?" I would be happy to do a show where I only play snippets of music to turn the audience on to artists and songs they had never heard before. What rules apply here? If I researched correctly, these brief clips are still subject to the same royalties and mechanicals. But if so, how can amazon.com, towerrecords.com, and other online retailers get away with putting up 30-second soundclips of every song on every CD they sell?
It is, as you say, a myth. There is nothing explicit in the copyright law (even in fair use) that says anything about the use of excerpts other than for educational purposes (at least not that I've found). The quote that Retro gives is from guidelines for multimedia presentations in an educational environment, not from copyright law, and is not applicable to podcasts. Online retailers get away with it for no other reason than the fact that the RIAA sees it as a benefit and hasn't seen fit to file suit.
As for the EU copyright rules, if you read carefully you'll see that they apply to EU recordings, not U.S. recordings playing in the EU. Therefore having an EU-based host does not give you the right to violate U.S. copyright laws.
quote:
I am looking for any legal means to continue to do some kind of show that will educate and help perpetuate this music. Any suggestions you have in this regard would be greatly appreciated. I remain willing to move forward with grant proposals, but I need to be able to calculate how much I am asking these foundations to cough up.
Your best strategy is to contact individual labels and request their permission to use the music in a podcast. While larger labels are unlikely to give you permission (although you never know), smaller labels are going to be more interested in any kind of exposure they can get. Just make sure you get the permission in writing. |
Craig
My goal is to be able to play as well as people think I can. |
Edited by - cpatch on 08/01/2007 11:57:39 AM |
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cpatch
Ahonui
USA
2187 Posts |
Posted - 08/01/2007 : 12:08:56 PM
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quote:
Originally posted by Reid
Sarah created a slack key setting of the song, "Ka Ipo Nohea" (1881)...In order to get permission, Sarah wrote the Lili`uokalani Trust, Hui Hanai, explaining the situation and asking for that permission...Finally, they gave permission, with the caveat that the Trust retained copyright to the words (I don't remember about the rights to the basic melody - but it is in a legalistic document that they sent Sarah) and they required her to send them a finished copy of the CD compilation for their files.
This brings up an interesting point. According to U.S. copyright law all copyrights prior to 1923 have expired. Hawaii was annexed in 1898, so even if all Hawaiian copyrights were renewed at the time of the annexation (which I doubt), from a strictly legal standpoint it would appear that "Ka Ipo Nohea" is in the public domain and the Trust has no legal say over its use. The argument over what's "pono," however, is a completely different matter. |
Craig
My goal is to be able to play as well as people think I can. |
Edited by - cpatch on 08/01/2007 12:18:05 PM |
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Reid
Ha`aha`a
Andorra
1526 Posts |
Posted - 08/01/2007 : 1:42:35 PM
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Craig, Sarah was guided, not only, but especially, by being pono. The facing page of the Queen's Songbook says that everything in it is copyright 1991 and may not be reproduced by any one of a bunch of mechanisms without permission - this stuff is *always* open to interpretation :-(. So we went through the process.
Especially since Ka Ipo Nohea was unpublished before the Songbook, wouldn't it be theirs to determine?
Also, of the more famous ones, like Aloha `Oe, would anyone want to engage in a dispute with an organization that helps kids?
This is a serious rat's nest and I don't see an easy way out. In most such matters (like taxation of S corps, and other legalistic kukae), I am a pit bull, but this seems to me a place to either tread lightly, or get a definitive ruling and nuke `em. I don't think there is a nice gentle way out. Can you think of one?
Where is Darin on this? Or does he require a fee :-)
...Reid |
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keoladonaghy
Lokahi
257 Posts |
Posted - 08/01/2007 : 8:35:42 PM
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I'll add the requisite "I'm not a lawyer" disclaimer to the following, though I have had extended discussion with an IP attorney recently regarding a large audio archive our college possesses and have gained a lot of insight from those discussion.
One term that has gotten tossed around lightly in this discussion and others is "educational" use. Just because someone uses copyrighted materials for a not-for-profit and perhaps informational manner does not make it educational as far as copyright law goes (again, what I have been told and not my own interpretation). There are protections for legitimate educational use of copyrighted material under the TEACH act that allows for educational institutions, public as well as private, to use copyrighted materials without explicit permission from copyright holders. However, there are some very specific guidelines that must be adhered to or the individual and institution lose the protections afforded by the TEACH act. And unfortunately many of them are written so broadly that they are very open to interpretation and scares some educators from taking advantage of them. |
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