The Business Phone that Could (have)

Once upon a time, there was a shinny new device called the iPhone that tried to climb up the mammoth hill that is the sole domain of the business smartphone.  “I think I can, I think I can,” said the iPhone, and it tried and it tried, but alas, it could only make it up about half way, and then it sputtered and. . . .   The end of this story cannot be written.

Obviously, you probably figured out by now that I have fallen victim to the allure driven by the site all of my business associates who were sporting shiny black and white, Zen-like devices which colorful icons.  Yes, I bought an iPhone.  And while this article may be a bit off topic for my music business oriented blog, anyone who knows me knows that I am a techie through and through and enjoy new gadgets and technologies more than most.  Many of my friends call me the guru for good reason.  So, here goes.

As a long time fan of Palm, you might wonder why I did not wait for the premier of the Palm Pre.  The simple reason is that Sprint service does not reach to my residential area.  That was also the reason that, in recent years, I migrated to Windows Mobile, which I grew to love almost as much as the Palm OS.  However, finally I was convinced to switch to the dark side and try it with Apple.

My relationship with my iPhone is what I describe as a “love hate” relationship.  Yes, there are many many things I really love about the iPhone.  I love the way it feels in your hand, almost like a smooth pebble plucked from a lake in the mountains of Japan.  As I said in the story above, very “Zen-like.”  After all, that is the Apple way isn’t it?

At first I thought the soft keyboard would drive me crazy.  Surprisingly, I’m getting used to it and pretty efficient, although I still maintain that a hardware keyboard is much more efficient – something the Palm Pre does beautifully. 

For the most part, on the positive side, I really love the web browsing experience.  The websites that actually work (more on this later) come up beautifully and quickly.  And, as a tech person, I really like the fact that there are scores of programmers written countless applications for the iPhone.  For the most part, the marketing is true, “there is an app for that.”  That’s sort of where the “hate” part of the relationship begins, in that area between the “for the most part” and the remaining part of 100%!

Recently, Apple has been pushing the idea that the iPhone is the ideal phone for business.  There are several flaws with the iPhone which, until remedied, will prevent its widespread infiltration into the lockhold that BlackBerry, Palm and Windows Mobile have on that sector of the market. 

So, what I’d like to address in this article is not the scores of more obvious deficiencies that have already been pointed out in the blogs and articles – no native voice dial, lack of full support for Bluetooth, no memory expansion, no cut and paste, no MMS, etc. – but the less obvious and definitely serious deficiencies that relate more specifically to a business person’s daily use of a smartphone.

First and foremost, and this has certainly be recognized by others, is  the lack of support for Javascript and Flash plug-ins in the built-in Safari browser.  If your websites relies on either of these, and my www.musicattorney.biz does, then what the iPhone visitor will see is a blue Lego-style brick with a question mark in the middle.  See the illustration.  What the hell is that?  Unforgiveable.  There’s no other word for it.  And all simple because Apple doesn’t like to play nice with its competitors, particularly Adobe.

Secondly, and this has always been one of my major beefs with Apple, the proprietary, i.e. closed, operating system.  Apple’s SDK, as one developer put it, “has more restrictions than Guantanamo.”  Developers require a certain level of integration with the OS in order to develop business-class applications to work around the inherent deficiencies in the native software.  One perfect example of this is the calendar.  For some unknown reason, there is NO WEEK VIEW in the calendar.  No week view.  I don’t know about most business people, but for me, the week view is the go-to view.  Yes, I know, there is a “list” view – not the same thing.  To witness the difference for yourself, download the iPhone version of Pocket Informant and look at the week view.  Ah, problem solved you might think.  Just use the App.  Not so quick.  Pocket Informant only syncs with Google calendar.  Why, you ask?  That’s right, because Apple will not allow them to access the base-level calendar on the iPhone and therefore the information in the iPhone’s calendar CANNOT be displayed in beautiful week view of Pocket Informant.  Yes, the week view is a touchy subject for me.

While we’re on the subject of little annoyances, what’s up with dialing the damn iPhone?  There is no quick way to get to the dial pad.  Duh!@!!  It is, first and foremost, supposed to be a phone.  Give a quick way to access my dial pad.  When you press the pretty green telephone icon, you land on whatever button you happened to be on when you opened the program before, whether it be the voicemail or recent contacts.  You MIGHT get lucky and land on the dial pad.  But there’s a one in four shot that you have to press yet another icon to get to the dial pad to, dare I say it, actually make a phone call. 

Since we’re on the subject, looking up contacts is probably a breeze for someone with 25-50 contacts in their address book.  You swipe down the list and it flows beautifully.  I, like many other business people, have close to 2000 contacts in my database.  Not such a “weeeee” experience with the scrolling thing!  There is simply no good way, on the native applications, to search for a contact and quickly dial them.  Fortunately, in this instance, there is an app for that.

Now, getting back to the primary focus, the third annoyance that restricts the iPhone from being a major contender in the business market is the lack of multi-tasking.  That’s right, multi-tasking.  The Palm Pre recognizes and addresses this need beautifully, as does the Blackberry Storm.  With the iPhone, you must always return to the icon screen, which is, again, designed for the casual user.  The icon concept works great if you have only a few applications, but if you start to actually utilize the “there’s an app for that” concept, you quickly find that it’s difficult to find the app you’re look for.  You also will find, by the way, that you are limited to the number of applications you install on the iPhone – nine screens +4 only!  Apple has some smart programmers, why not throw in some “categories” or “tabs” or some intelligent organizational method!  No file or icon management whatsoever.  I don’t ask for much. 

While we’re on the wish list, why not allow me to have a “back” button, to return to my previous program.  But no, if I want to look up someone’s phone number or address to include in a calendar event, I have to hit the home key, thereby exiting the calendar, go find the contacts icon, press it, scroll through scores of contacts until I find the right one, then select that contact, memorize the information, exit the contacts program, find the calendar icon, press the calendar icon – OH MY FREEEEEKING *#*#*#!!!!!!  Isn’t Apple supposed to be the king of simplicity?  Somebody surely missed the boat on this one didn’t they?  It is a simple concept – multitasking.  Apple didn’t get it.

So, you might be wondering, why do I still have and use the iPhone.  Well, actually as I said there are many apps that do service many of my needs.  I utilize Freshbooks for invoicing, SugarSync for file backup and access, Jott for quick notes to myself, Google for directions, eReader for my literary needs, Transactions to get myself paid, Pandora to listen to music, Upvise for my shopping list needs, ReQall for my localized to do list, MyCast for weather, Banking online, etc. etc. You get the picture. 

Don’t get me wrong.  I could do ALL of these things on my old Samsung Blackjack with Windows Mobile.  But certainly the iPhone is, after all, the most recent iconic symbol of high technology.   I just hope that Apple has their act together enough to realize that their market is expanding, and in order to expand fully into the business sector, it might have to let go of some of its old methods of doing things.  Let the programmers in.  Let them design fixes to these flaws.  Let them develop an app for that!  Until then, in my opinion, the Blackberry Storms and Samsung Jacks of the world will continue to have a foothold in that precious business market that every smartphone desires to dominate.  Until then, Apple, repeat after me:  “I think I can, I think I can . . . .”

Technorati Tags: iPhone,deficiencies,Windows Mobile,Blackberry

My Appearances on WSM Radio

For the last several weeks, I have enjoyed being a guest host on Malcolm West’s live radio program, Race Night.  It’s a weekly show that airs on WSM 650 AM from 7-9 p.m CST.  The show is broadcasted into over 37 states and, as Malcolm quips, two outhouses!  It reaches over 150,000 listeners. 

The show is very unique:  it consists primarily of Malcolm’s commentary and responses to callers regarding the evening’s NASCAR race.  However, interspersed in the NASCAR theme are musical elements, including special featured guests who are prominent songwriters, entertainers and music industry veterans.   I was introduced to the show by my good friend and banker, Lisa Harless of Regions Bank.

Malcolm asked that I participate in the music industry portion of the evening to give an entertainment attorney’s perspective.  I’ve had the pleasure of participating in live interviews with Malcolm’s musical guests Jessica Miller, Buffalo Rome, Harold Bradley, Ray Walker and Karen Staley.  That’s Malcolm on the right in the photograph, together with Ray Walker, myself, and Kevin Anderson, the engineer and producer.

I can’t wait to see who will be on next week!  Join me and Malcolm for a fun evening of family entertainment next Sunday evening!

Technorati Tags: Entertainment Law,Music Lawyer,Radio,Malcolm West,NASCAR

HR 848 passes committee

Rep. John Conyers, Chair of the House Judiciary Committee brought the Performance Rights Act (HR 848) up for markup this morning. 

HR 848 created no small amount of disagreement among radio broadcasters, minority broadcasters, trade unions and civil rights groups.  However, a group  of minority artists, including Duke Fakir of the Four Tops, Dionne Farris and Jon Secada, recently sent a letter indicating support for Rep. Conyers and this legislation.  The letters stated in part: 

As minority artists, we support a strong and vibrant local radio industry. We know that minority broadcasters play a vital role in our communities. And we support efforts to create accommodations in the legislation for small, minority-owned stations. But the creation of a fair performance right cannot be delayed further. We have already waited far too long. “Not now” is not an acceptable answer.

To address the concerns of minority broadcasters, Conyers offered the following amendments at today’s markup:

Affordable payment for small, rural, nonprofit, minority, religious and educational broadcasters

· Any station that makes less than $100,000 annually will pay only $500 annually for unlimited use of music

· Any station that makes less than $500,000 but more than $100,000 annually will pay only $2500 (half of the amount in introduced bill) annually for unlimited use of music

· Any station that makes less than $1,250,000 but more than $500,000 annually will pay only $5000 (the amount in introduced bill) annually for unlimited use of music

Relief for current economic situation

· No payment for 2 years by any station that makes less than $5,000,000 annually

· No payment for 1 year by any station that makes more than $5,000,000 annually

Parity for all radio services

· Establishes a “placeholder” standard to determine a fair rate for all radio services that will encourage negotiations between the stakeholders

Cannot hurt local communities

· Assures that this legislation cannot affect broadcasters public interest obligations to serve the local community

Assures consideration of relevant evidence

· Evidence relevant to small, noncommercial, minority, and religious broadcasters and religious and minority royalty recipients must be considered by the Copyright Royalty Judges

Other minority and civil rights groups that sent letters expressing support for the act included the Leadership Conference on Civil Rights, Pennsylvania Legislative Black Caucus, Rhythm and Blues Foundation and the A. Phillip Randolph Institute.

The executive director of the musicFIRST Coalition, Jennifer Bendall, supported the committee’s decision:

“We applaud Chairman Conyers and Committee members for their work on the Performance Rights Act and for supporting artists, musicians and rights holders in their fight for fair compensation when their music is used by AM and FM radio stations.

The Performance Rights Act will bring fairness to artists, musicians and rights holders and one that’s fair to radio and its counterparts. It also includes accommodations for small and minority-owned broadcasters. musicFIRST looks forward to the next chapter and to Congress to ensure that U.S. artists and musicians receive the performance right they deserve.”

Now that HR 848 has cleared the committee, it will be brought in front of the entire House for debate and vote. 

Technorati Tags: Performance Rights Act,Legislation,Radio Broadcasters,PROs,music industry Events

New website focuses on promotion of musicians

I was recently contacted by John Dargan, a Florida-based computer programmer who is also the webmaster for a new music-related web site called www.Nurturemusic.biz.  The concept of the site is simple, and somewhat unique:  it is a “slide show” of publicity photographs of various musicians, artists, bands and related music industry professionals.  Dargan finds musicians to be fascinating people, so he founded the site this past March with a goal of providing a marketing avenue for talented musicians allowing them to attract a wider audience.  So far, the site has engendered  an enthusiastic response from both the musicians and their fans.

To obtain the content, Dargan scours MySpace and other websites looking for musicians, artists and bands that have both great publicity photos and an apparent talent for music.  Dargan works hard to ferret out the best photos and the most promising musicians.

“It’s a tremendously fun hobby,” Dargan says.

A viewer arriving at the website is greeted simply with a photograph framed on the top with the site’s logo, a navigation bar, and the name of the artist, and on the bottom with various links and information related to the artist.  In the navigation bar, the user can move from photo to photo in the slideshow or learn more about the artists by clicking on one of the links or directly on the displayed image, which is generally hyperlinked to the musician’s website, MySpace page or the CDBaby location offering the musician’s CD for sale. In this way, Dragan hopes to drive web traffic to the commercial sites of the musicians.

In addition to providing free publicity to the musicians, the site provides credit to the professional photographers who took created some of the images as well as a hyperlink to the photographer’s website. Dargan makes an effort to contact each professional photographers not only to seek permission, but to ask them to comment on the the photo session, asking them to describe how they decided upon the location of the shot, the best angle, or any incident associated with the session that a reader might find of interest.

The goal is to enhance the viewer’s understanding and enjoyment of the photography and to provide a more intimate glimpse into the life of the photographer and the musician. Dargan’s approach to the website is drawn from the concept of “high-tech, high-touch,” a book by John Naisbitt, which introduces the concept that technology can help bring us closer as a community.

All of Dargan’s discover efforts seem to focus on quality.  For example, he searches for photographs in which the faces are clearly visible, i.e. not hidden behind microphones or musical instruments.

I prefer eyes that are visible, not closed, nor looking away. The expression on the face provides an insight into each person's personality.

Dargan was surprise to find that a number of the photographs he chose were taken not by professional photographers, but by the artists and musicians themselves.

The key emphasis in the search for music is also on quality elements.  Dargan searches extraordinary talent and musical express. He listens for lyrics that are not only original, but have qualities and characteristics that are touching, heartfelt, plausible or engaging. 

In contrast, Dargan avoids photographs that contain disturbing elements, such as blood, or music that contains “excessive screaming or cursing.”

The music should engage the listener right away. The execution of the music should be crisp and should indicate a high level of musical skill. The quality of the instruments should be high. The vocals should be compelling and dynamic

Dargan says. 

Dargan has also been surprised by the number of extremely talented teenagers that he discovered in the plethora of musicians on MySpace and YouTube. While he generally he avoids direct contact with minors for obvious reasons, Dargan was particularly impressed with one young country singer named William Michael Morgan, so he contacted the boy’s father and obtained permission to feature William on the website.

Other examples of the talent featured on the website are

• David Bradley, a singer/songwriter who is also an oil engineer.  Bradley wrote some of his songs while stationed in the forests of Siberia and on an oil rig in the middle of the Caspian Sea.
• Colin O'Donohoe, an outstanding composer, conductor and musician who has developed hauntingly beautiful music involving wonderful instruments from the Far East.

Dargan is also sells “slots” in the slide show to attorneys and other industry professionals who specialize in the music industry.  Dargan chuckles at the thought of money trickling in from these professionals, particularly  attorneys, as Dargan, a patent-holder who has been involved in patent litigation, has sent tens of thousands of dollars to attorneys.  “Getting even a small amount of income from attorneys seems only fair to me,” he chides.

Dargan received a Bachelors degree from American University in interdisciplinary studies, and a Masters degree from Washington University in St. Louis, in Technology and Human Affairs. Dargan has one expired patent and one pending patent, both related to Touch-Tone interaction with computers, such as with text messaging. Dargan can be reached at nurturemusic@yahoo.com.

Technorati Tags: musicians,artists,entertainment,entertainers,music law,entertainment lawyer,music lawyer,entertainment attorney

Law on the “ROAD”

Starting in June, the author of this blog, Law on the Row  - 20-year entertainment attorney veteran Barry Neil Shrum - will be taking the show on the road!  On June 5, 2009, Mr. Shrum will conduct the first of a series of national seminars called MBA, Music Business Academy. 

Mr. Shrum initiated this series of seminars to address a perceived need in the industry: that a growing number of artists, entertainers and songwriters who might benefit from the expertise of an entertainment attorney, could not afford to retain an attorney and get the help they need due to upfront fees and retainers.  To this end, the mission statement for MBA is “music business education for the do-it-yourself generation!”  This unique series of one-day sessions will provide the upcoming and established mid-tier artist, musician, songwriter and other music industry professionals with a cost-effective method of obtaining an essential legal foundation for day-to-day music industry survival. 

The goal of the seminar is to create a sense of being in the client chair, Mr. Shrum will unravel the essential provisions of various industry-specific agreements  - bringing clarity to the legalese and identifying red flags in the “small print.”  Some specific agreements covered in the MBA session are:

*    the exclusive recording agreement (and the new 360 deal)
*    the exclusive songwriting agreement
*    the personal management agreement

For the do-it-yourself generation, Mr. Shrum will also explain the details and implications of guerilla marketing on the web.  He will explore the typical iTunes deal as well as other online distribution issues relevant to today’s guerilla marketers.

When asked about the seminar, Riq Lazarus, of Lazarus Management Group, said:

"Barry Shrum gets it!  The music business is undergoing radical change.  It is absolutely essential that today's artists have an understanding of the legal issues facing them in this new era of "do-it-yourself" broadcasting.  And because he has the heart of a teacher, Barry's immense knowledge and experience enables him to empower you with the understanding you need to protect your creations."

It is Mr. Shrum’s goal that attendees walk away from the seminar with a functional understanding of basic copyright, trademark and contract law — a virtual “MBA” in the music business!  Attendees will also receive specialized written materials as a continuing reference and valuable resource and are given the opportunity to purchase reduced rate legal services from Mr. Shrum.

The date of June 5, 2009 has been set for Chattanooga – the day before the Riverbend Festival - and plans are in the works for seminars in Denver, Colorado and Charlotte, West Virginia.   Other cities under consideration are Austin, Texas, Baltimore, Maryland, Boston, Massachusetts, Atlanta, Georgia, Philadelphia, Pennsylvania.  To see if your city is being considered, or to vote for your city, take the online poll.

General information about the seminars can be found here.  A detailed agenda of the Chattanooga seminar can be found at the event website:  www.musicbusinessacademy.info

 

Register Now! online event registration by RegOnline

Technorati Tags: Music Business,Seminar,Music Law,Music Publishing Contracts,Exclusive Songwriting Agreement,Exclusive Recording Agreement,Record Contract,Personal Management Agreement,Music Industry

Taxation of digital downloads

By guest author, Cory Greenwell, Esquire*

“The customer is always right” has long been a mantra of the business world. Over the last ten years, consumers within the entertainment and software industries have begun to demand instant access to products off all types. Products such as the Apple iPod®, Sony PSP® and the Amazon Kindle® among countless similar products have created an ever-increasing demand for instant access to media content. As a result, the increase of digital distribution of media content has grown, with iTunes alone accounting for more than $5 billion dollars in the US and the industry continues to grow. As a direct result of the increase in volume of the digital distribution of media content, the distribution of physical media, such as compact discs that are customarily subject to sales tax fell sharply in 2007. The paradigm shift has resulted in a major sector of the entertainment industry acquiring virtually tax-free status or consumers.

In the 1992 landmark decision in Quill v. North Dakota, 504 U.S. 298 (1992), the court found that states cannot require out-of-state retailers to collect taxes from customers who live in states where the retailer does not have a related physical presence or “substantial nexus”. The basis for the decision was to give a “safe harbor” for businesses wishing to avoid the burdens of complying with the numerous state tax laws by transacting business online.

Seventeen states, including Tennessee, have updated their tax code and now impose a tax on digital downloads. The legality regarding the taxation of digital media appears to have been resolved in favor of taxation. After Quill, the responsibility rests on the individual consumer to report the transaction on their annual tax return and pay the appropriate amount of sales tax. Some reports indicate that nationwide state and local governments will have lost more than $500,000,000 in uncollected taxes by 2011.

The court in Quill recognized the importance of the emerging e-commerce sector and declared that alternative means to require retailers to collect sales tax, namely that 1) Congress may require retailers to collect sales tax or 2) States may require retailers to collect taxes provided that Congress has provided a mechanism by which to reduce the burden of retailers to comply with the tax laws of the several states.

Since the Quill decision, twenty-two states including Tennessee have joined together under the “Streamlined Sales Tax Agreement” to create a uniform tax code to reduce the burden of complying with the law of the several states. Among other things, the SSTA have created uniform rules regarding digital media. The National Conference of State Legislatures has called for Congress in its next session to review the Sales Tax Fairness and Simplification Act (H.R. 3396) which gives those states that have complied with the Streamlined Sales Tax Agreement the authority to require out-of-state retailers to collect sales tax for online purchases.

Rather than waiting on Congressional action, New York has attempted to circumvent the requirement of a physical location within the state by interpreting their law to include any “affiliate”. In the case of Amazon, affiliates include anyone who advertises on the website. This interpretation, if adopted by the several states, would negate the benefit of the safe harbor by exposing the online retailer to liability throughout the nation.

In conclusion, as the law presently stands, states may tax digital media, however it cannot require out of state retailers to collect taxes. If Congress adopts the legislation proposed by the members of the Streamlined Sales Tax Agreement as anticipated, the Quill case no longer prevents states from requiring retailers to collect sales tax.

*Jonathan “Cory” Greenwell is an intellectual property lawyer who practices in Louisville, Kentucky at the firm of Greenebaum Doll & McDonald.  Cory is the co-founder of the website Backseat SandBar and was featured on the WFPK 91.9 feature, “Off the Record.”

Technorati Tags: Taxation,Digital Downloads,MP3,music law,entertaiment law

Politico’s interview with Corgan following his testimony before Judiciary Committee on HR 848

As a follow up to my previous post on the subject, the radio widget above should play Politico’s interview with Smashing Pumpkin’s founder and frontman Billy Corgan following his testimony in front of the House Judiciary Committee in support of HR 848, the Performance Rights Act.

Corgan testified on Capitol Hill on behalf of the musicFIRST Coalition yesterday.  Corgan testified that the current sytems is “hurting the music business” because of radio stations’ failure to compensate musicians for performing their music.

My readers know my thoughts on this subject.  While I agree with Corgan’s overall sentiment, I stand by my emphasis yesterday that the legislation as it is written may be drafted in favor of the record labels more so than the performing artists. 

HR 848 should have a provision that provides for direct payment of royalties to the artists who performed on the sound recording and which specifically does NOT rely on the record labels to distribute these royalties “in accordance with the terms of the artist’s contract.”  (See my previous post).  This kind of language contained in the House version of the legislation at Section 6 only assures that the record labels would receive all the performance royalties and that performing artists would have to overcome numerous obstacles to ever see any of the additional income, inevitably leading to more disputes with the record label.   The current artists agreements with record labels simply do not contain provisions addressing payment of these types of royalties and, even if they did, the artists who have unrecouped balances on their ledger sheets would never see a dime. 

My proposal is that the current system for collection and distribution of performance royalties for musical compositions be utilized.  Specifically, why not allow BMI, SESAC and ASCAP to collect and distribute the performance royalties for sound recording copyrights on behalf of member artists, allowing these organizations to pay 50% of the income directly to the artists (the original owners of the sound recordings) and 50% to the record labels (the assignee owners of the sound recordings).  This structure is identical to the distribution of performance royalties for owners of the musical composition copyright.  It’s a systems that has functioned well since the turn of the 20th century and it is a systems that, overall, works fairly well. 

In general, members of the performance rights organizations have fewer royalty disputes with these entities over  than artists do with record labels, since these entities, for the most part, do not function as profit generators.  There is no doubt that this idea has some flaws as well, but in comparing the alternative, it seems to me that this would benefit the artists and musicians much more than giving the money to the record labels.

Technorati Tags: Billy Corgan,Smashing Pumpkins,HR 848,Legislation,Music Industry,Music Law,Entertainment Industry,Entertainment Lawyer