Local 257 elects Pomeroy to replace Bradley

OUT WITH THE OLD

After over 18 years of service to the organization, Harold Bradley is no longer president of Nashville’s Local 257 chapter of the American Federation of Musicians.  Dave Pomeroy was elected president last week by a vote of 675 to 449.  Out of it’s 2620 members, 1165 votes were cast in this election, which is more than double the number of votes cast in the 2005 election. 

This is most certainly the end of an era for Harold Bradley, for whom I have a great deal of respect and admiration.  He began his long services as president of Local 257 on January 1, 1991 and later became the International Vice President serving the AFM’s International Executive Board, a position he will likely retain until 2010.  He received the AFM’s Lifetime Achievement Award in 2006, the same year he was inducted into the Country Music Hall of Fame.  Bradley was also the first president of the Nashville chapter of NARAS and continues to serve as a member of the Grammy organization’s Board of Governors.

Harold and his brother, Owen, built Nashville’s earliest recording facility, Castle Recording Studio, in the early 40’s. As the architect of the Nashville Sound, Harold was part of Nashville’s original “Nashville Cats,” the A-Team, which included such notables as Boots Randolph, Floyd Cramer, Hargus “Pig” Robbins, Buddy Harman and The Jordanaires. 

He is one of the most recorded guitarist in the world, and has been pickin’ on country albums for over 60 years, including work on such classics as Bobby Helms' Jingle Bell Rock, Brenda Lee's I'm Sorry, Roy Orbison's Only the Lonely, Patsy Cline's Crazy, Roger Miller's King of the Road, Tammy Wynette's Stand By Your Man, Eddy Arnold's Make the World Go Away, and Loretta Lynn's Coal Miner's Daughter, just to name a few.

Harold Bradley will always be considered a formidable force in Nashville’s music industry. 

IN WITH THE NEW

Bradley’s replacement, Dave Pomeroy, is a well known and seasoned musician as well, having played electric and acoustic bass on more than 500 albums during his 34 years in the music industry.  Dave has played with artists including Emmylou Harris, Alan Jackson, Elton John, Peter Frampton and Chet Atkins, including work on 6 Grammy-winning projects.  Dave is also an independent producer and has produced numerous projects which can be found on website.

Pomeroy issued the following statement after winning the election:

"I am humbled to be elected to the office President by the members of Local 257. Thanks to everyone who voted and all those who volunteered to help my campaign.

On behalf of all members past and present, I thank Harold Bradley for his many years of dedication and service to this Local and the AFM. I am honored to be carrying on the historic tradition of leading Local 257 as we move into a rapidly changing future.

We have one of the most dynamic, versatile, and innovative music communities on earth, and I look forward to representing the best interests of all Nashville musicians, both here at home and around the world."

Pomeroy will begin his three-year term effective January 1, 2009.

In the same election, Craig Krampf defeated Billy Linneman for Secretary-Treasurer by a vote of 570 to 539.  Re-elected to the Executive Board were Bruce Bouton, Bobby Ogdin, Andy Reiss, Laura Ross, and Denis Solee, who were joined by new members Duncan Mullins and Jimmy Capps.

THE CONTROVERY

There is much controversy surrounding the election, which is viewed by some as “revolutionary.”  The scuttlebutt is that a riff has been developing since 2001 between the leadership of the AFM’s International Executive Board and AFM members who were also members of the Recording Musicians Association, the local chapter of which Pomeroy is president.   The RMA, a player conference sanctioned by the AFM, is a 1400-member organization of studio musicians with chapters in Los Angeles, New York and Nashville,  It is arguably one of the most active conferences in the AFM.

Bradley and Linneman, for better or worse, threw their support behind resolution put forth by Thomas F. Lee, the IEB President, and passed by the IEB in Las Vegas in June 2008, which threatened to “de-conference” the RMA at its September conference. 

Lee’s opposition to the RMA derived from stemmed from his promotion of a deal which eliminated so-called backend new usage “buyouts” of musical scores used in video games, something which the AFM was reluctant to do in the past.  Read more about his in this Variety article.

The lines of battle were thusly drawn, and the Local 257 uprising has been building ever since, with tempers flaring on both sides of the disagreement.  (A detailed, though somewhat biased, historical trail can found on the “Sounds” blog).  As a result of the June vote, Pomeroy and over 150 other local members of the AFM presented a resolution at the executive board meeting of Local 257 calling on the members to censor Bradley for his support of the anti-RMA resolution, which Bradley described as “ridiculous” and to which he responded:

This resolution, submitted by RMA President David Pomeroy, is intended to influence my vote! I will continue to vote my conscience (based on the facts before me), and I resent this attempt to force me to vote otherwise.

This statement appeared in an open letter to Local 257 in the July-September 2008 edition of the Nashville Musician, the Local’s newsletter.  This exchange ultimately led to the controversial election of last week.

The waves of discontent were also felt in Los Angeles, where RMA member Vince Trombetta was elected as Local 47’s president earlier this month, also in an apparent backlash against Tom Lee’s anti-RMA leanings.

The principals of democracy are certainly at work in the AFM, just as they were in the presidential elections this year!

SUMMARY

I know Dave Pomeroy and I  believe he will be a caring and effective leader for the AFM.  I congratulate him and wish him the best in the new endeavor, knowing full well that he has some difficult struggles ahead in leading the opposition. 

I also know and respect Harold Bradley.  Harold is a Nashville icon who has been an effective leader of Local 257 for almost two decades.  I believe he wanted what he thought was best for the musicians and I know that he always had the musicians’ interests at heart.  I thank him for his service to the industry.

But no one is perfect.  While I do not intend to take either side in this debate, I will note that perhaps it was indeed time for a revolution.  There is no doubt now that new leadership is the order of the day. Nashville’s musicians are the backbone of our industry and they deserve adequate compensation and representation.  The majority of them now feel that Dave will do that and I commend their choice.  While no one really likes it when it comes, change is often a good thing.   I hope that at least in the Local 257, egos can deflate to normal and tempests can subside, and harmony can once again return to the organization that is at the heart of Music City.

Technorati Tags: nashville musician's union,afm,american federation of musiciains,local 257,dave pomeroy,harold bradley

PassAlong Networks gets cash infusion

Word is spreading on the Internet about PassAlong Networks, Inc.'s recent infusion of investment capital.  PassAlong is a digital music distribution and sharing service aptly headquartered in Franklin, Tennessee.  According to VentureWire, the company plans to close a $30 million funding round later this month.

PassAlong, also known as the Tennessee Pacific Group, LLC, was founded in 2002 by former Microsoft executive, Dave Jaworski and, Scott Lewis, an independent entrepreneurer.  Mr. Jaworski's blog, Can't Stop the Music, can be found here.  The company raised $40 million in start up monies from angel investors - an unusually substantial amount from individual investors - and also raised another $10 million in investment capital in April 2007.

Music veteran Jeff Skillen recently went to work for the company as their VP of Entertainment Relations.

PassAlong has a patent pending on its media service engine architecture, which is designed to work across all operating systems and platforms and is device-independent.  It launched its first digital music download store on e-Bay in September 2004

The company has digital music catalog agreements with all four major record labels: Warner Music Group, Universal Music Group, EMI, and Sony/BMG.  The PassAlong catalog includes nearly 3 million songs, including not only catalog from the majors, but also nearly 2 million independent songs in MP3 format.  Most of its music is either DRM or MP3, and the company became certified by Microsoft PlayforSure in December 2004.

The music-sharing services gets its name from the fact that it allows consumers to recommend music to friends with links to song clips sent through email and instant messaging services from AOL, MSN and Yahoo.

PassAlong Network Inc.'s portfolio of other products, many of  which are interactive, includes:

StoreBlocks, an online platform of tools and templates for building digital music/media stores, including PassAlong's library of songs from the four major labels and MP3 files from independent artists.  This system currently powers 120 digital music stores, including Proctor and Gamble's Julie's Jukebox;

OnTour, is an award-winning family of concert notification applications, widgets and websites;

freedomMP3, is a "non-DRM" solution, providing protection technology and media tracking services designed to safeguard artists' rights without hindering consumer rights via interoperability;.

Skylocker is a media storage and market-management platform;

Speakerheart a subsidiary of PassAlong, is an exciting independent-artist publishing and promotion system; and

Connected Consumer, a series of platforms and services aimed at enhancing the connected consumer experience.

Look for this exciting company to go places on the web.

Technorati Tags: Nashville,DRM,Digital Downloads,Internet Law,MP3,Major Labels

Peterson Receives 'Spirit of Hope' Award

Country artist Michael Peterson is the recipient of this year's Bob Hope 'Spirit of Hope' Award, thereby recognized for his dedication and continued contributions to the troops of the United States Armed Forces.

The Spirit of Hope award is presented annually to distinguish ed Americans whose patriotism and service to the troops reflects that of Bob Hope.  Commissioned by the USO in November 1997, the award was name after Hope, who at that time was designated as the first and only honorary veteran of the United States Armed Forces for his decades of entertaining troops, both in peacetime and in combat zones.  Hope symbolized the idea that America cared about and supported its troops, and he remains the USO's "Ambassador of Good Will."

The award was given to Peterson at a ceremony held at the Pentagon in Washington, D.C. in late October.  Other notable winners of the award in the past include the Country Music Association, CBS news anchor Walter Cronkite, the Dallas Cowboy Cheerleaders, and former astronaut John Glenn.

"The men and women in uniform who serve our nation selflessly with honor and integrity are inspiring to be around," said Peterson upon receiving the award.  "For decades, Bob Hope saluted them with entertainment and encouragement from home.  Because of Mr. Hope's sacrifice and service, today's entertainers have the same opportunity.  I am grateful for this recognition and the privilege of being associated with his legacy."

Peterson completed the U.S. Army sponsored 'My Real Life - Strong For America Tour' earlier this year.  In addition to performing, the singer introduced various programs and services at each stop of the tour that empowered students to make great choices and provided civic leaders and businesses with new strategies for contributing to their local communities.  A live concert headlined by Peterson concluded each week's events.

The former collegiate football star continues his support of the troops with a series of overseas dates during the holidays.  He will also perform for U.S. Army Chief Of Staff General George W. Casey Jr. in my old stomping grounds, Philadelphia, Pennsylvania on December 5th at the Union League of Philadelphia, prior to the annual Army-Navy football game.

Peterson first arrived on the country music scene in 1997 with the success of his self-titled debut album, which produced such hits as Drink, Swear, Steal & Lie which reached number 3 on the Billboard Hot Country Singles & Tracks chart (now Hot Country Songs)and From Here To Eternity which made it all the way to number one.  The album was certified gold by the RIAA, and ultimately generated a total of five hit singles on the Billboard charts.  In addition, he was recognized as country music's top selling new male artist by Billboard and R&R in that same year.   

Peterson, a great ambassador for country music industry, has also contributed his time to other charities such as The Ronald McDonald House, the Special Olympics, and St. Jude Children's Research Hospital.

The USO is a Congressionally chartered, nonprofit organization, that is not a government agency, but rather is funded by many national corporations and other private contributors.  For more information on the USO, call 1-800-876-7469 or visit their Web site, www.uso.org.

Congratulations Michael!

Technorati Tags: Michael Peterson,USO,Spirit of Hope Award,Bob Hope,Nashville Entertainment Attorney,Music City,Music Row,Entertainment Lawyer,Music Lawyer

Reba and Borchetta team up again

Valory Music Co., the independent label formed last year as a subsidiary to Scott Borchetta and Toby Keith's Big Machine Records, has added another huge feather to their proverbial cap:  Reba McIntire.  The announcement appears today on Valory Music's website.

A multimedia entertainer, Reba sold more than 55 million albums, won two Grammy awards and starred in the popular sitcom Reba!  She has for a long time been signed with MCA Nashville, a division of Universal Music Group, where she met Borchetta, who at the time was Senior VP of Promotion.

McEntire and Borchetta worked closely together at MCA Nashville creating a strategy that dominated airplay, sales and touring at a time when few other female artists were doing it.  During their collaboration, Reba and Borchetta had 14 number 1 hits and sold over 22 million records, giving MCA Nashville the title "Label of the Decade" for the 1990's.

Valory Music was formed last year when Borchetta surprised the music community last year by announcing a similar high-profile deal with Jewel to produce a country record.  At that time, Borchetta stated that the objective of Valory Music was "to continue the momentum that has been achieved with Big Machine by not only replicating our current culture and our recent successes, but also by taking everything that we've learned over the last two years and pouring it into this exciting new venture. We continually re-engineer what we think we know and we feel like we've identified an incredible opportunity with the simultaneous availability of some incredible artists and record executives. . . ."

Together, Big Machine and Valory are two of the most successful independent projects in town, selling records for a stable of artists that includes the aforementioned Jewel, Taylor Swift, Trisha Yearwood, and Emerson Drive.

McEntire is expected to release a single with Valory Music next spring, with a complete album coming in the summer of 2009.

Technorati Tags: Reba McEntire,Scott Borchetta,Big Machine Records,Valory Music Co.,Nashville Entertainment Attorney,Jewel,Trisha Yearwood,Emerson Drive,Entertainment Lawyer,Music Lawyer

Law on the Row goes mobile!

For those readers sporting new iPhones, Blackberrys, Windows Mobile smartphones or even for those diehard Palm fans who own Treos, Law on the Row is extremely pleased to announce that it is going mobile!  The new mobile version loads faster on smaller devices with more limited web browsers.  Just type in the following URL on your mobile device:  http://lawontherow.mofuse.mobi.  You enjoy the same great content, without some of the photos and links.  It's a great way to keep up with articles on the road.  Enjoy!

By the way, for fellow bloggers, you can create your own mobile website using your RSS feed at www.mofuse.com.

Bobby Don releases "Some Sunday"

My client, Ric Landers and Your Place or Mine Digital, LLC were instrumentally involved in the release of the new single, Some Sunday, written by Emmy nominated songwriter Bobby Don Bloodworth and recorded with his band the Gopher Broke Band.  The CD can be purchased here, or you can download and MP3 version.  Here is the YouTube video for the song:

Your Place or Mine Digital operates a multitrack portable digital studio, with mix down and mastering capabilities which Ric can set up at any location. 

Ric's relationship with Bobby Don dates back to 1990 when he was the studio manager and chief engineer for the famous Denny Music Group in Nashville.  The duo decided to take the day off and go fishing on the Piney River when Bobby Don's recording session was preempted by an emergency session for Allison Kraus.  The two have been friends ever since.

Bobby Don wrote Some Sunday as a retrospective on lessons that should have been learned from past wars, especially Vietnam, and to bemoan the hope of a quick end to the current conflict in Iraq.   Bobby Don served in the Navy during Vietnam and knows all too well the pain and loss that goes with the atrocity of war as an eye witness.

The Radiohead Model

Since it's release a year ago, Radiohead's online experiment with "pay-what-you-like" marketing has been blogged about, critiqued, and otherwise widely referenced as a viable model of marketing music in the Internet era.  Earlier this month, Radiohead's publishing company, Warner/Chappell, released a report that sheds light on the sales figures for In Rainbows.  The report was released in conjunction with a presentation by Jane Dyball, head of business affairs at Warner/Chappell, at the You are in Control conference at Reykjavik, Iceland.

For those of you who have been in a closet, Radiohead released the In Rainbows album on the Internet and asked those who downloaded it to pay whatever they like, even nothing if they so chose.  The Warner/Chappell report indicates that collectively there were three million purchases of In Rainbows this past year, including digital sales through the band's webstore in the run up to the album's release, deluxe two-volume discboxes  and, the physical CD sold through other digital outlets.

More specifically, the band moved around 100,000 of those (very nice!) discboxes, and the physical CD has sold 1.75 million units to date worldwide. Sales via iTunes racked up to approximately 30,000 copies during the set's first week of availability in June, making it the No. 1 album in the store that week.  All of this despite the fact that the album also proliferated BitTorrent almost immediately after its online debut.

The report dubbed the Radiohead Model a success.  In fact, the In Rainbows album is said to have generated more money in the three-month period prior to the physical release than the total amount of money generated by their 2003 album, Hail to the Thief, which was released via more traditional outlets.

Not only did the Radiohead Model prove successful for generating a buzz about the band, allow the band to obtain distribution and and sell physical product, it also enabled Radiohead to sell over 1.2 million tickets in their supporting tour.

The Radiohead Model is certainly a viable option for mid-level bands seeking to do their own thing via the Internet, but can it work for a small band seeking to break?  Many in the industry will continue to maintain that a successful entertainment act will need the marketing support of a major record label in order to achieve sales in the range of Radiohead.  Others will argue that success can be achieved by selectively marketing and generating the type of viral support that can be generated on the Internet through independent marketing and distribution networks.  There is no doubt that major labels have the resources to almost instantly catapult an act to stardom.  There is also no doubt that a few independent acts have achieved a high level of success without the assistance of the majors.  As with most issues, there is probably a compromise solution here somewhere.  And in that solution probably lies the future of the music industry.  The major labels are starting to adjust to the whims and wills of the populace.  But it's a difficult task to turn the Titanic.  In the interim, the opportunities arise for the independent entrepreneurs to step in an take up the slack.

It is an exciting time to be part of the industry, even with all of its ebb and flow.  New winds are still blowing and the sands are still shifting.  Whatever the surviving landscape will look like, the Radiohead Model is one clue to its terrain.

Thomas verdict vacated; new trial ordered

The trial in Capital v. Thomas was one of the first stories I began tracking over a year ago.  See Jury Awards RIAA $222,000 against Thomas:  My Thoughts on the Verdict and Jammie Thomas to appeal verdict in RIAA Litigation.  

Now, in a decision issued on September 24, 2008 - only eight days shy of the one-year anniversary of the verdict - Judge Michael J. Davis of the United States District Court in Minnesota, who heard the case originally, vacated the $222,000 verdict against Jamie Thomas in Capital v. Thomas and ordered a new trial.  Read the 44-page verdict.

Judge Davis found that he provided the jury with an erroneous instruction, Jury Instruction No. 15, which read:

The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.

A fter reviewing case law in other circuits, Judge Davis reached the opposite conclusion in this memorandum and order, i.e. that "Liability for violation of the exclusive distribution right found in § 106(3) requires actual dissemination" and, therefore, the contrary assertion in the instruction substantially prejudiced the jury against Thomas.

In his opinion generally, the Judge Davis examined the reproduction right, the effect of MediaSentry's involvement in the distribution,  the plain meaning of the term "distribution," whether the term "distribution" is synonymous with the term "publication" under the Copyright Act, and whether a plaintiff has the exclusive right to authorize a distribution.

The Judge refutes the RIAA's theory that making a copyright available for distribution violates Section 106(3) of the Copyright Act, which gives the owner the exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”   Judge Davis examines the dictionary definition of the term "distribute," other sections of the Copyright Act, and provisions of the analogous Patent Act, to arrive at the conclusion that "the term 'distribution' does not including making available and, instead, requires actual dissemination."  The Court noted that if it had intended to include "making available" as one of the means of distributing a copyright, Congress would have specifically added the language as it had done in the Patent Act when Congress amended it to forbade "offers to sell."

Judge Davis also refuted the Plaintiff's argument that the definitions of "publication" and "distribution" under the Copyright Act are synonymous as incorrect.  His conclusion regarding this issue is worth quoting in its entirety:

The Court concludes that simply because all distributions within the meaning of §106(3) are publications does not mean that all publications within the meaning of § 101 are distributions. The statutory definition of publication is broader than the term distribution as used in § 106(3). A publication can occur by means of the “distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending.” § 101. This portion of the definition of publication defines a distribution as set forth in § 106(3). However, a publication may also occur by “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” § 101. While a publication effected by distributing copies or phonorecords of the work is a distribution, a publication effected by merely offering to distribute copies or phonorecords to the public is merely an offer of distribution, not an actual distribution. 

Congress’s choice to use both terms within the Copyright Act demonstrates an intent that the terms have different meanings. “It is untenable that the definition of a different word in a different section of the statute was meant to expand the meaning of ‘distribution’ and liability under § 106(3) to include offers to distribute.” Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976,
985 (D. Ariz. 2008). The language of the Copyright Act definition of  publication clearly includes distribution as part of its definition – so all distributions to the public are publications, but not all publications are distributions to the public.

Finally, in reaching its opinion that the jury verdict should be vacated because of the erroneous instruction, Judge Davis clearly states that it is not necessary to reach Thomas' issue of whether the award was excessive (See page 40 of his opinion).  Nonetheless, he did indicate his leanings on this issue in dicta as follows:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-to‐peer network cases such as the one currently before this Court. The Court
begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by Plaintiffs and the Government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case. All of the cited cases involve corporate or business defendants and seek to deter future illegal commercial conduct. The parties point to no case in which large statutory damages were applied to a party who did not infringe in search of commercial gain.

The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market. Cf. Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 42 737, 741‐42 (D. Md. 2003) (describing defendants as a “global  financial‐services firm” and a corporation that brokers securities). While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal  downloading has far‐reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs ‐ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs.  While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.

Thomas not only gained no profits from her alleged illegal activities, she sought no profits. Part of the justification for large statutory damages awards in copyright cases is to deter actors by ensuring that the possible penalty for infringing substantially outweighs the potential gain from infringing. In the case of commercial actors, the potential gain in revenues is enormous and enticing to potential infringers. In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands – or even millions – of dollars in profits. This fact means that statutory damages awards of hundreds of thousands of dollars is certainly far greater than necessary to accomplish Congress’s goal of deterrence.

Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.

One issue I note in this dicta by Judge Davis is that statutory damages, as provided in the Copyright Act, were not necessarily intended only as a deterrent, but also were established because it is sometimes difficult to determine the value of an intellectual property.   This does not, however, negate his primary point that a factor of 100x the actual damages might have been a more reasonable award than 500x the actual damages. 

Expect to hear more about this case as the new trial unfolds.

Technorati Tags: RIAA Litigation,Music Lawyer,Entertainment Lawyer,Digital Downloads,MP3,Digital Music

Leadership Music honors Bradley Family with prestigious Dale Franklin Award

When one thinks of Music Row, it is impossible not to conjure up thoughts of Music City's Royal Family, the Bradleys.  Last night, Leadership Music awarded the prestigious Dale Franklin Award to Owen, Harold, Patsy, Connie & Jerry Bradley.  The annual award recognizes music professionals who exemplify leadership qualities.  The Bradley family is most certainly deserving of that title.

Owen and his brother, Harold, were among the first to build independent recording studios in Nashville and, in particular, built the famous Quonset Hut studios in 1955 at 804 16th Avenue South.   The famous studio was the birthplace of the Nashville Sound, rockabilly, and spawned many notable recordings by Webb Pierce, Kitty Wells, Ernest Tubb, the Wilburn Brothers, Bill Anderson, Loretta Lynn, Conway Twitty and Patsy Cline.  Other famous tunes recorded there include Sonny James's "Young Love" and Gene Vincent's "Be-Bop-a-Lula" (both Capitol, 1956), Marty Robbins's "Singing the Blues" (Columbia, 1956), Ferlin Husky's "Gone" (Capitol, 1957), Conway Twitty's "It's Only Make Believe" (MGM, 1958), Mark Dinning's "Teen Angel" (MGM, 1959), and Johnny Horton's "The Battle of New Orleans" (Columbia, 1959).  Owen passed away in 1998 and is the subject of one of Music Row's most notable pieces of sculpture just off the circle at Demonbreun.  The Curb Foundation is currently renovating and restoring the Quonset Hut Studio for tours and use by students in Belmont University's music industry program.

Harold Bradley, president of the Nashville chapter of the American Federation of Musicians since 1991, is one of the most recorded guitarist in the history of country music, if not music in general.   He was part of Nashville's original "A Team" (the "Nashville Cats").  Harold played lead on the aforementioned Horton hit as well as Patsy Cline's famous tune, "Crazy," written by Willie Nelson.  Bradley's list of appearances on hit recordings are too numerous to exhaust, but include most notably Eddy Arnold's "Make the World Go Away," Don Gibson's "Oh Lonesome Me," Brenda Lee's "I'm Sorry," and Roger Miller's "King of the Road." Other hits to which he contributed are Ray Price's "Danny Boy," Jeannie C. Riley's "Harper Valley P.T.A.," Bobby Vinton's "Blue Velvet," Burl Ives's "Holly Jolly Christmas," Faron Young's "Hello Walls," Tammy Wynette's "Stand by Your Man," and Conway Twitty's "Hello Darlin.'"

Jerry Bradley started with his father Owen in the Bradley Barn, a studio located in the outskirts of Nashville in Mt. Juliet, Tennessee.  The Bradley Barn produced such notable artists as Gordon Lightfoot, Joan Baez and other pop acts.  Jerry went on to head the RCA label in Nashville, developing the successful "Outlaw" concept with Willie, Waylon, Jessie Colter and Tompall Glasser.  From there, Jerry took over the reins of Opryland Music Group and Acuff-Rose Music Publishing for awhile and then went to work in the publishing end of the business.

Connie Bradley, Jerry's wife, is a leader in the music industry as senior vice president of ASCAP.  She has been honored many times, including being named "Lady Executive of the Year" by the National Women Executives and recipient of Nashville Symphony's 2006 Harmony Award just to name a few.  She is frequently identified by Nashville magazines and publications as one of the most powerful people on Music Row, male or female!

Together with last year's Dale Franklin Award recipient, Ms. Frances Preston, Patsy Bradley was instrumental in starting the Nashville office of BMI, and retired as assistant vice president of that organization.

Other members of the Bradley family currently active in the industry include Clay Bradley, who is a recording executive at Sony Music's Nashville operation and Bobby Bradley Jr. who is a studio engineer.

Troy Tomlinson, who worked for Jerry Bradley at Acuff-Rose and is now CEO of Sony/ATV Publishing in Nashville, gave one of the most enjoyable keynote speeches of the event, which actually came across as more of a roast!  Tomlinson noted that among the five Bradley family members honored -- each individually having between 30-50 years of involvement in Nashville, -- they have over two centuries of influence on Music Row.  Truly a remarkable achievement.

The award dinner was held at Loew's Vanderbilt.  On hand to honor these remarkable leaders were artists influenced by them, including Ronnie Milsap, Kenny Chesney, Kelly Pickler, Gretchen Wilson, Lee Ann Womack and Mandy Barnett.  One of the most stirring performances for me was Ronnie Milsap singing his 1977 hit single, It was almost like a song, undoubtedly one of the most well-crafted songs ever.

Technorati Tags: Music Industry,Music Row,Nashville Entertainment Attorney,Nashville

Best Wishes to my old friend, Will Hoge

I want to take this opportunity and use this forum to wish Will Hoge and his beautiful family best wishes in this difficult and painful time, and offer my family's prayers for a speedy recovery.  Will was one of my first clients when I started practicing entertainment law in Nashville -- I negotiated one of his first publishing deals with Big Fish Entertainment -- and he has always been one of my favorites.

Hoge is in Nashville's Vanderbilt University Medical Center following an accident involving his motor scooter.  The accident occurred August 21st on Main Street in East Nashville. 

News reports surfacing today identified his condition as critical, but hospital officials state that he is expected to recover from his serious injuries. 

Hoge was apparently forced to collide into the passenger side of a Millicare Carpet Cleaning Van, which, according to police, failed to yield at a turn.  There was no evidence of alcohol or drugs involved in the accident.

Will is without question one of Nashville's most talented Americana singer-songwriter performers in any genre - just the right blend of grit, rock, country, blues and soul rolled up in a big ball of scruff and playing a Stratocaster!

Will, 35 years old and Julia Schmidt have a beautiful 16-month old son, Peyton Liam Hoge.  Hang in there Will, and keep on rockin' for us.

Technorati Tags: Will Hoge,Accident,Scooter,Entertainment,Music

Sugarland Lawsuit filed in Georgia illustrates need for prior provisions among band members

On August 7th, a lawsuit was filed by Kristen Alison Hall, former member of the all-female country band, Sugarland, against the remaining original members of the band, Jennifer Nettles and Kristian Bush.   A copy of the complaint can be viewed here.

Essentially, the lawsuit alleges that Nettles and Bush breached a partnership agreement between the three members, breached their fiduciary duty to Hall, and failed to account to her for partnership profits.  Among other facts alleged, Hall claims that she contributed the trademark, "Sugarland" to the partnership.  A search of the trademark database at www.uspto.gov shows that the partnership owns two marks:  a service mark for live performances, Reg. No. 2747326, and a trademark for merchandise, Reg. No. 3250679.  All three original members, Hall, Nettles and Bush, are identified as the registrants on these marks.

More about the lawsuit can be gleened from this article in the Atlanta Journal-Constitution, written by entertainment journalist Shane Harrison, with contributions by Rodney Ho.  Yours truly is cited as a resource in the article.

This lawsuit provides a dramatic visual aid as to why it is so important for musical groups to plan in advance with regard to issues such as who owns the band name in the event of a dispute.  Either a band partnership agreement, or a  properly established limited liability company or corporation, can effectively provide for what happens to the name in the event a member leaves.  One method I commonly use is to establish a limited liability company and assign the trademark and trade name to the company.  Provisions for what happens to a member that leaves the LLC are then incorporated into the Operating Agreement which set forth the procedure for valuing the company's assets in that instance.  Such a structure could have eliminated the need for a lawsuit such as the one that Hall filed against the other two members of Sugarland. 

If your band does not have a written document dealing with this issue, you should consider retaining an entertainment attorney for such purposes, particular if your band is starting to generate significant income.

Technorati Tags: Sugarland,Entertainment Lawyer,Music Lawyer,Breach of Partnership Agreement,Band Partnership Agreement,Entertainment law,music law,country music,Litigation,Entertainment litigation

Second Circuit gets it wrong in Cartoon Network v. Cablevision

On August 4, 2008, the Second Circuit court of appeals overturned a lower courts opinion that Cablevision's Remote Storage” Digital Video Recorder ("RS-DVR") system violated the Copyright Act by infringing plaintiffs’ exclusive rights of reproduction and public perf ormance.  The full 44-page opinion is available at Cartoon Network, LLP, et al. v. Cablevision.  In my humble yet fully animated opinion, the Second Circuit's opinion was not at all well reasoned nor, for that matter, even common sense -- I believe it misinterprets at three very important areas of the Copyright Act and interpretation thereof:

When is a work "Fixed" According to Section 101

Through a system of buffers, Cablevision's RS-DVR will allow customers who do not own stand alone DVR's to record programming, which resides on Cablevision's servers, and "time-shift" it to view it at a later date.  Certainly a great concept, but one which, in my opinion, should require authorization from the owners of the copyrights. 

In arriving at its conclusion, the court determined that the buffer used to process the steam of data only "copies" the data for a duration of 1.2 seconds, before transferring it to another buffer used to reconstruct a copy of the program for any customer who has asked to view it at a later time.  The court concluded that this "embodiment," i.e. the copy, was transitory in duration and therefore not "fixed" pursuant to Section 101 of the Copyright Act.  Therefore, the copyright owners' right of reproduction was not violated.  This is clearly erroneous reasoning:

The definition of "fixed" in Section 101 of the Copyright Act states, in its entirety:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

In arriving at its determination, the Second Circuit focused on its condensed version of the definition, i.e. a work is “fixed” when its embodiment “. . . sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration.”  The court concluded, based on this shortened version of the definition, that the "language plainly imposes two distinct but related requirements, i.e. an "embodiment requirement" and a "duration requirement."

The Second Circuit's error is grammatical in nature:  it misinterprets the language of the definition of "fixed" by assuming that the phrase "for a period of more than transitory duration" modifies the words "permanent or stable" when in fact it actually modifies the antecedent phrase "permit it to be perceived, reproduced or otherwise communicated."  This is certainly the case with regard to the RS-DVR - it fixes the copies for in sufficiently permanent state in one buffer (i.e. the 1.2 seconds) to permit them to be reproduced in another buffer for a period of more than transitory duration.  Thus, the court got it wrong.

Without getting into too much detail, the court also incorrectly analyzes a 9th Circuit cases, MAI Systems and its progeny which correctly apply the definition of fixed to a copy of a work created in RAM memory for a period of minutes.  The effect of this misinterpretation is to put legal practitioners in the precarious position of trying to determine at what point between 1.2 seconds and 2 minutes does a reproduction arrive at a "more than transitory" state.

Ironically, the Second Circuit ignores the U.S. Copyright Office's analysis of this precise issue in its 2001 report on the Digital Millennium Copyright Act which elaborated that a work was fixed "unless a reproduction manifests itself so fleetingly that it cannot be copied, perceived or communicated."  This clarification is in line with my earlier interpretation that the phrase "more than transitory in duration" modifies the communication or perception, not the embodiment itself.  The Second Circuit stated that, in its mind, the U.S. Copyright Office's interpretation "reads the 'transitory duration' language out of the statute."  To the contrary, however, it is the correct interpretation in that it incorporates the transitory duration requirement into the appropriate section of the definition.

Finally, the Second Circuit completely ignores the last sentence of the definition, to wit:  A work . . . is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission."  In this instance, the court readily admitted that an unauthorized copy of the work was stored, i.e. "fixed" on Cablevision's servers simultaneously with its transmission.

When is an infringer not an infringer?

In extending recent trends by some circuits to weaken the strict liability component of the Copyright Act, the Second Court refused to find that Cablevision was a direct infringer.  Instead, it rules that the customer is the direct infringer in this instance of digital recording, showing his or her intent to make a copy when he or she presses the record button on the remote.  The court reasons as follows:

In this case . . . the core of the dispute is over the authorship of the infringing conduct.  After an RS-DVR subscriber selects a program to record, and that program airs, a copy of the program–a copyrighted work–resides on
the hard disks of Cablevision’s Arroyo Server, its creation unauthorized by the copyright holder. The question is who made  this copy. If it is Cablevision, plaintiffs’ theory of direct infringement succeeds; if it is the customer, plaintiffs’ theory fails because Cablevision would then face, at most, secondary liability, a theory of liability expressly disavowed by plaintiffs.

Emphasis mine.  The first thing to note about the court's conclusion is that it realizes, right off the bat, that the copy created on the servers of Cablevision is an infringement.  In its mind, however, the only question is who made the copy.  Now, that, of course, flies directly in the face of a host of copyright concepts which I will not address here, but suffice it to say that this is problematic.

But, for the moment, let's just examine how the court ultimately determines who had the "volition" to infringe in this specific case:

There are only two instances of volitional conduct in this case: Cablevision’s conduct in designing, housing, and maintaining a system that exists only to produce a copy, and a customer’s conduct in ordering that system to produce a copy of a specific program. In the case of a VCR, it seems  clear–and we know of no case holding otherwise–that the operator of the VCR, the person who actually presses the button to make the recording, supplies the necessary element of volition, not the person who manufactures, maintains, or, if distinct from the operator, owns the machine. We do not believe that an RS-DVR customer is sufficiently distinguishable from a VCR user to impose liability as a direct infringer on a different party for copies that are made automatically upon that customer’s command.

The court then continues its analysis by example, offering the examples of a retailer who owns a photocopier and rents it out to the public as reinforcement of its conclusion, finding that because the retailer would not be liable for infringement, neither should Cablevision.   Despite the fact that there is case law holding that such a retailer WOULD, in fact, be liable for infringement, the Second Circuit errs in failing to see the difference between a VCR in the analog world, a single, stand-alone device used express by the customer, and a process devised by a company which makes infringement as simple as pressing my record button on my remote.  The court does not find this a "sufficient" distinction.  The court's error in logic is apparent in this prose when it examines a 6th Circuit case on the issue:

In determining who actually “makes” a copy, a significant difference
exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.

Is this 2001 Space Odyssey?  Did H.A.L. take over when I wasn't looking?  Who programmed the system?  

If this were not enough, the Second Circuit then performs a great deal of legal gymnastics to support its finding:  First, it examines the video on demand process to illustrate that Cablevision does not have control over the transmissions being recorded by the subscribers in the RS-VCR system.  Are they for real?  Ever heard of apples and oranges.  The VOD system is a fully licensed process which is, dare we say it, nothing like the RS-VCR system.  Secondly, the Second Circuit uses the distinction between "active" and "passive" infringement under the Patent Act to jump to the almost humorous, if it weren't so wrong, conclusion that:

If Congress had meant to assign direct liability to both the person who actually commits a copyright-infringing act and any person who actively induces that infringement, the Patent Act tells us that it knew how to draft a statute that would have this effect.

Every intellectual property attorney worth his or her salt knows that the Copyright Act and the Patent Act are very limited in their usefulness for purposes of using one to interpret the other.  That's why it's said that the Copyright Act is a strict liability statute, whereas, the Patent Act is not so much.

When is work "publicly performed"?

The final error committed by the court is in its analysis of whether the buffered copy delivered to individual customers was "publicly performed." In this regard, the Second Circuit concluded:

under the transmit clause, we must examine the potential audience of a given transmission by an alleged infringer to determine whether that transmission is “to the public.” And because the RS-DVR system, as designed, only makes transmissions to one subscriber using a copy made by that subscriber, we believe that the universe of people capable of receiving an RS-DVR transmission is the single subscriber whose self-made copy is used to create that transmission.

Again, the Second Circuit has to do a hatchet job on the definition of "public performance" in order to arrive at this convoluted conclusion.  The definition of "public performance" in the Copyright Act is actually found in the "publication" definition of Section 101.  It states, in its entirety:

To perform or display a work “publicly” means — 

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Emphasis mine.  Whereas the Second Circuit zeroed in on the phrase "to the public" in making its determination, the definition clearly intends to define public performance as any process that allows the public, in general, the ability to receive the transmission, whether or not it is in the same place or the same time.  Its not very difficult to see the fallacy of the Second Circuit's reasoning.   The Cablevision RS-DVR clearly does precisely what the definition anticipates, it creates multiple copies stored in the buffers for individual subscribers in multiple places, who then view the (buffered) transmissions at different times. 

While this seems simple, the Second Circuit jumps through numerous irrational hoops to arrive at the idea that:

the transmit clause directs us to identify the potential audience of a given transmission, i.e., the persons “capable of receiving” it, to determine whether that transmission is made “to the public.”

Nothing in the statute dictates this conclusion, to the contrary, the legislators probably thought that the word "public" was generic enough to not need interpretation. 

The effect of this ruling, at least for now, is that anyone can make digital copies of any copyrighted work on their servers for purposes of transmitting to an individual customer, so long as that individual customer makes a request for it, and there is no implication of the performance rights.

This is a fine example of a court "reasoning" the meaning completely out of a statute. 

Conclusion

If it is not obvious by now, I think this is one of the most poorly reasoned and drafted opinions by a Circuit Court that I have read in a long time.  If there is a bright side, it is that the effect of this decision is primarily that it overturns the grant of a summary judgement by the lower court.  From a broader perspective, however, and the more unfortunate result is that, because of the concept of stare decisis, this reasoning can now be cited in other cases in other jurisdictions across the country as good law.  So, unfortunately, we entertainment attorneys will be dealing with the negative impact of this decision for some time to come, until perhaps some higher court, in this case the Supremes, decides to rectify it.

Technorati Tags: Copyright Infringement,Direct Infringement,Contributory Infringement,Fixation,Public Performance,Performance Royalties,Digital Downloads,Intellectual Property,Internet Law,Computer Law

CRB Announces Addition of New Board Members

Effective immediately, the Country Radio Broadcasters, Inc.® has announced the addition of three new executives to its Board of Directors:

Clay Hunnicutt, Senior Vice-President of Programming, Clear Channel, Atlanta.  Clear Channel is the largest operator of radio stations in the country.   As the person in charge of programming for Clear Channel's 200 plus country radio stations, Hunnicutt must have an inside track on what's going on in country music.  In an article for the American Chronicle, Hunnicutt says of his job "I love what I do because it affords me the flexibility to not only focus on the Country format but also to be able to look at and understand all formats."  See, Clay Hunnicutt:  Clear Channel's Country Connoisseur. 

Renee' Leymon, Senior Director of National Promotions at Lyric Street Records in Nashville.  Leymon has been part of promotions at Lyric Street Records since 1998, when she landed there after a stint with Arista Nashville; and

Keith Kaufman, has been Program Director at WSIX-FM Nashville since 2004, when he was responsible for making dramatic changes to WSIX's slogan, positioning and airstaff in order to rebuild its "big" position in the country music market.  WSIX is, of course, the mother ship of country radio as the first successful country music formatted station on the FM dial in the US.

The current list of directors to which the trio will be added are identified on CRB's web site (Click here to view).  Hunnicutt fills the void left as a result of Gregg Swedburg's recent resignation.  Kaufman and Leymon fill two newly created at-large positions, which expire in March 2009 and March 2010, respectively. 

The CRB is a non-profit organization founded in 1969 to support the country radio format.  The organization has done a great job at this task over the years by organizing various industry events and seminars across the country, one of which is the well known Country Radio Seminar which is held annually in Nashville.  CRB is also the trustee for the Country Music DJ Hall of Fame, founded in 1974.  Ed Salamon is CRB's current director.

Kaufman and Leymon are also serving on this year's Agenda Committee for the 40th annual Country Radio Seminar.

When asked to comment about the new Board appointments, CRB president and board member Becky Brenner stated "it is always a tough vote because we have so many deserving individuals who apply to serve on the board. These three individuals have been long time supporters of the Country Radio Broadcasters and the Country Radio Seminar. Their individual talents and passion will help to lead us into our next 40 years."

General information about Country Radio Broadcasters, Inc. may be obtained at their website www.crb.org or by calling the CRB office at 615-327-4487.

Technorati Tags: Country Music,Country Radio Format,Country Radio Broadcasters,Nashville,Music Industry

All that glitters is not gold - tips on analyzing a songwriting/band contest

When is the last time you heard of someone getting a really "big break" in the music industry through any contest, other than perhaps American Idol?  That's because most artists and songwriters are not discovered through contests, they are discovered through relationships in the industry. 

Yet, there are literally hundreds of such contests out there promising thousands of dollars in prizes or a opening slot for a well-known band, or a recording label or songwriting deal -- everything but the kitchen sink! 

I don not, by any means, mean to say that all contests are rip-offs.  There are, in fact, many legitimate contests in which songwriters and entertainers may participate.  I do mean to recommend, however, that you do a bit of research and exercise some good judgment prior to sending your submission off into the digital divide.

First, there are some very simple questions to ask yourself initially as you examine these "one in a lifetime opportunities.  Look at the source or sponsor of the contest.  Often times, their reputation proceeds them.  Have you ever personally heard of the contest sponsor?  What are the credentials of the sponsoring entity?  Have you read about them in any public forum such as a magazine, news article, or online resource?  What successes have they achieved in songwriting and/or the music industry, if any?  Who are the judges?  What are their credentials.  Are there any major advertising sponsorships associated with the contests?   What are the prizes?  Are they substantial?  Answers to most, if not all, of these questions can be derived through a simple online search.

Let's say you've done all of the above research and determined that the contest is sponsored by none other than MTV?  To most songwriters and artists, there could be no greater sponsor than MTV, correct?  But before acting too hastily, let's move into the second phase of analysis, i.e., taking a look at the RULES.

Now, assume that you determined that since MTV was the sponsor, it must be a great opportunity, so you jump right in with both feet, or in this case, your best demo tape!  A chance to open for a great headline act is waiting for the lucky winner!  Unfortunately, if you did not read the fine print, you just agreed to the following:

release and hold harmless Sponsor Entities against any and all claims, injury or damage arising out of or relating to participation in this Contest and/or the use or misuse or redemption of a Grand Prize and for any claims based on publicity rights, defamation, invasion of privacy, copyright infringement, trademark infringement or any other intellectual property related cause of action. . . . (emphasis added)

This language comes straight from the rules and regulations in a ongoing "Rock the Revolution" contest sponsored by mtv2.com.  See the Rules and Regulation page.  This is typical hold harmless clause, which effectively negates any rights or claims you may have otherwise had to bring a civil action against MTV in the event that you are injured as a result of the contest.

In addition, MTV also states in their terms of agreement that:

The approximate retail value (the “ARV”) of the Grand Prize is $150.00. Any difference between the ARV and the actual value, if any, will not be rewarded. If, for any reason, the Grand Prize related event is delayed, cancelled or postponed, MTV reserves the right, but is not obligated, to cancel or modify the Contest in its discretion and may award a substitute prize of equal or greater value.

This effectively means that you could end up getting only $150 as the "grand prize winner" if the concert is canceled for any reason by the headlining act.  A corollary effect  net effect is that, at most, your damages in a civil lawsuit probably would be limited to $150, the agreed retail value (i.e., by agreeing to their terms, you and MTV agreed to this amount).

Finally, by simply clicking the "I Agree" button on your web browser without first reading the fine print, you also agreed to grant MTV a non-exclusive right, among other things, to record your submission by virtue of the fact that you are a finalist?  See this clause from a real contest:

Finalists and Winner agree that by entering into this Contest they are granting  MTVN. . . the non-exclusive, irrevocable right and license to exhibit, broadcast, copy, reproduce, encode, compress, encrypt, incorporate data into, edit, rebroadcast, transmit, record, publicly perform, create derivative works of, and distribute and synchronize in timed relation to visual elements, the Submission Materials and/or any portions or excerpts thereof, in any manner, an unlimited number of times, in any and all media, now known or hereafter devised, throughout the world, in perpetuity. . . .

While this is non-exclusive license, meaning that you can issue other non-exclusive licenses to third parties, it does give MTV pretty broad rights to use your submission in almost any form they want.  This doesn't necessarily mean that you shouldn't participate in this contest, it is just something you should certainly understand and use in weighing your decision.

Believe it or not, this grant is pretty tame compared to the language of other contests I have reviewed for clients.  I've seen situations where a contestant ostensibly assigns the copyright in a song submitted for a contest to the sponsor.  So beware.  Make sure there is something in the rules that indicates that you are not transferring any rights or licenses in the submission.

These are just few examples of some of the lawyerly devices that can be utilized in the rules and regulations of a contest, particularly an online contest which a "click agreement" in place.  Before you submit your intellectual property, it is probably worth the money to pay a few hundred dollars to an entertainment attorney to advise you as to what the legal ramification are for you and/or your band.

 

Technorati Tags: Songwriting,Music Lawyer,Entertainment Lawyer,Entertainment Law,Bands,Songwriting Contests,Band Contests,Music Law,Copyright,Entertainment Contracts,Click Agreements

Does Harvard have Chris Anderson by his long-tail?

A major debate is being spawned by a recent article entitled "Should You Invest in the Long Tail,"  written by Anita Elberse, an Associate Professor of Business Administration at Harvard Business School.  The debate concerns the accuracy of Chris Anderson's long tail theory, set out in great detail in his 2006 book, The Long Tail:  Why the Future of Business is Selling Less of More.  

A summary of the debate is given in this analysis by Glenn Peoples of Coolfer.com.  Mr. Anderson's initial response to Elberse's criticism's can be found here and then her subsequent response here.

The long tail theory is an idea that contrasts with the "blockbuster strategy" of marketing, which Elberse accurately describes as "age-old," i.e. that the limited retail shelf space for media and entertainment product dictates that retailers should maximize their profits by focusing their marketing efforts on the relatively small number of "best sellers."  This is, of course, best exemplified in today's economy by the Wal-Mart approach.   It is, of course, the marketing philosophy that has been used by the major entertainment conglomerates for their entire history of existence.  The "blockbuster" product is at the peak of a bell curve, where the demand exists, the trailing end of which has long been described by the economic phrase "long-tail."  See Elberse's illustration below:

 

The basic idea behind Anderson's long tail theory is that the Internet has changed the way consumers look for media and entertainment product.  Now that a music consumer can find and afford products more closely tailored to their individual "niche" tastes, i.e., further down the long tail, they will migrate away from the homogenized "blockbuster" hits. Anderson argues that the future of online retail demands a focus that shifts away from blockbusters centers on the long tail—niche offerings that cannot profitably be provided through brick-and-mortar channels. (See Elberse's sidebar “The Long-Tail Theory in Short.”).  Elberse seeks to refute the idea that the long tail is being "fattened" by the online availability of more obscure and less marketed products.

If you are in the music industry, it is well worth following this debate.  While I will not attempt an in-depth analysis of Elberse's criticisms here - I'll leave that to the capable Mr. Anderson -- I do desire to point out what I believe is a very obvious weakness in Elberse's comments:

To support her conclusion that the long tail is "long but extremely flat—and, as online retailers expand their assortments, increasingly so," Elberse states that she relies on Nielson SoundScan data.  She concludes: 

The Nielsen data cover multiple retailers, multiple channels, and multiple years, offering a wealth of material to test aspects of Anderson’s long-tail theory. What emerges is not a rosy picture of the fate of long-tail products: the tail increasingly consists of titles that rarely sell and that are produced by smaller-scale players.

See The Long Tail Debate: A Response to Chris Anderson.

These assumptions about the SoundScan are flawed, I believe.  While Elberse is correct in her assessment that the "data cover multiple retailers, multiple channels and multiple years," I believe it overlooks the fact that SoundScan data is ONLY collected via POS, i.e. "point of sale" collection points.  This means cash registers and/or UPC bar code scanners.  The UPC code is the series of black and white lines appearing over a numeric code, which appears on virtually everything on the market today. 

That is how the "Scan" portion of the name "SoundScan" is derived.  When a UPC code on a product is scanned for sale, that UPC data is collected and a stored in a text file, which is delivered to Nielson on a weekly basis.  Nielson then collates and formats the data into what we know as the Billboard charts.  While the data may include some online retailers, its predominant focus is still on the physical product that sits on the shelves in retail outlets and warehouse all across America.  In other words, SoundScan's predominant purpose - the reason it was created - is to track physical sales which, it turns out, is only the product that falls into the "head" of the long tail.  SoundScan's focus is indubitably not on digital downloads, even though it has obviously made attempts to incorporate the trend in its charting scheme.

Naturally, if a person focuses primarily on the product that exists in the head of the tail, the conclusions reached by that person about what exists in the long tail are going to be slightly skewed. 

Elberse might counter this assertion by claiming that she also relied on the Rhapsody data to determine what obscure music was selling in the long tail.  Her use of this data is understandable, since Mr. Anderson also relied heavily on the Rhapsody data in drawing many of his conclusions in The Long Tail.  I think this reliance on Rhapsody data falsely assumes that what Rhapsody is selling is indicative of what is selling across the entire spectrum of the Internet.  Last time I checked, however, Rhapsody had about a 3-4% share of the entire music download market! 

This, I believe, is a fatal foundation for many analyses of the digital music revolution and, consequently, of the validity of the long tail.  I'm not aware of any comprehensive analysis that includes data from not only the mega online powerhouse, such as iTunes of course, which has about a 70% share of the digital download market, but also retailers of independent, less market-driven music, such as eMusic -- which, by the way, has a respectable 10% of the market share of digital downloads.  It is the success of the later that, in my humble opinion, deserves more consideration in any analysis of the viability of the long tail approach to today's digital market.  I can only speak for myself - I buy more music from eMusic than I do from iTunes, Zune, Amazon and Rhapsody combined.  So, to all of you researchers out there, please incorporate some serious data from the long tail!  Until that type of analysis is done, the conclusions drawn by Elberse must be viewed as somewhat suspect or, at the very least, only applicable to the specific subset of data she analyzed, i.e., not extrapolated to the entire music download market as a whole, but limited to SoundScan and Rhapsody.

 

Technorati Tags: Digital Downloads,Chris Anderson,The Long Tail,Music Industry,MP3,Music Law,Music Lawyer

Barry Shrum's interview with DigiMusicTV.com

I was surfing around yesterday and discovered that my interview with DigiMusicTV.com, recorded in 2007, was recently posted on brightcove.  Here it is in all it's glory:

Kristi Lee Cook signs with Nashville Label

According to news reports that broke first on Fox yesterday, then appeared on CMT and Billboard, Kristi Lee Cook, who took seventh place in this year's seventh season of American Idol, signed a recording agreement with 19 Recordings/Arista Nashville, a Sony BMG label.  This is Kristi's second attempt at success on the Arista Nashville brand, as she had a prior deal with the label signed in 1999 at the age of seventeen.  She was dropped from the label before producing any product, despite a commitment from Brittany Spears to appear with her in her first video.

The lawyer in me wonders whether this is actually a new deal, or whether Arista Nashville simply called in its rights under the prior agreement, as most recording contracts are not based on a strict term of years, but rather a length of term that involves delivery requirement.

Arista Nashville is, of course, home to two other American Idol favorites, Kellie Pickler and superstar Carrie Underwood.  In fact, Cook's new master will be produced by the co-writer of Carrie's smash, Jesus Take the Wheel, none other than longtime Nashville songwriter Brett James.

The first song out of the gate, 15 Minutes of Shame, will hit the airwaves on August 11.  The entire album is expected to be on store shelves in the fall.

Past American Idol contestants seem to fair well in the country music  arena, as witnessed by not only the successful careers of the aforementioned Underwood and Pickler, but in top selling product from rocker turned country rock, Bo Bice, Bucky Covington and Josh Gracin, whose albums have topped Billboard's country charts.

Technorati Tags: Country Music,Kristi Lee Cook,American Idol,Arista Nashville,Music Row