Friday, May 30, 2014

Why Do You Notarize Copyright Assigments?

            This comes from either the “learn something new every day” or blatantly obvious department. 

            Years ago a very smart attorney told me that a notarized signature was not required for a valid copyright assignment.  It is true that § 204(a) Copyright  Act  states “a transfer of copyright ownership other than by operation of law is not valid unless an instrument of conveyance, or a note or memorandum of the transfer is in writing and is signed by the owner of the rights conveyed…”.  There is specifically no requirement of notarizing the signature.   

            So,  I have wondered for years why publishers and others require copyright assignments to be notarized.  While researching something else I seem to have found that the answer is right there in § 204(b) of the act which states “a certificate of acknowledgement is not required for the validity of a transfer but it is prima face evidence of the execution of the transfer if (i) in the case of a transfer executed in the United States a certificate is issued by a person authorized to administer oaths within the United States. 

            Once again I find the Copyright Act  of 1976 incredibly illuminating.  In essence, it is not a legal requirement that your copyright assignment be notarized, it’s just a very good idea from an evidentiary standpoint.  No one ever discusses the validity of copyright assignments except in the context of evidence. So, I conclude that despite the language of § 204(a), copyright assignments need to be notarized.

Thursday, May 22, 2014

Remembering Mats Roden

When I moved back to Nashville back in 1983, WRVU had become the beacon of all that was cool.  I discovered many great bands on this station and made some life-long friends in the process.

            One of the bands I distinctly remember hearing on WRVU for the first time was Birmingham’s the Primitons– and they were a revelation to me: killer guitars, powerful drums matched with almost angelic  vocals and intelligent lyrics.  Later I saw a picture of the band for the first time and I couldn’t put it all together.  For the most part, they looked like your typical early 1980’s outfit except for the one guy who looked like an angry giant biker.  I was later to learn that this was the source of those beautiful vocals and monster guitar riffs: Mats Roden – a Swede somehow transplanted to Birmingham, Alabama.

            I don’t remember how I got to know these guys – there was Mats, drummer extraordinaire Lief Bondarenko and a non‑performing lyricist Stephanie Truelove-Wright together with an apparently  rotating cast of bass players.  Seemingly, they did everything right.  They were produced by Mitch Easter, recorded a Left Banke cover, had a record on Throbbing Lobster – this all seemed like success to me at the time; yet they didn’t make it.

            Early in my legal career I tried to shop the band for a new deal  to no avail.  I still have my pitch letters – (man, was I earnest).  I stayed in touch with Mats and sometime in 1990 or 1991 he sent me a tape that blew my mind.  He and Lief had formed a new band called the Sugar La La’s – it seemed like some kind of Birmingham super group and featured a brilliant and charismatic singer  named Carole Griffin.  The music was complex, exotic, slightly decadent and celebratory; songs like “Free Love” and “Everybody Hates Me,” and “You Must Die”.  The stage show was even better.  Mats kept the biker boots but often dressed in drag.  Carole was mesmerizing and the band was supported by a trave
ling entourage of cross-dressing lunatics – all from Birmingham, Alabama.

            I rarely trust my commercial instincts but I knew this band could get a record deal.  In short order they showcased for publishers and record companies, got a good publishing deal, turned down a major label while holding out for a better offer and then … broke up.  Carole, the singer, quit the band.  They tried to replace her but she was irreplaceable.

            I was heart-broken.  Rarely had I worked with a group this great or a songwriter/musician as talented as Mats.  The band was cool enough to reunite to play my wedding in 1993 but essentially they were done.  As the years passed I would go back and listen to both the Primitons and the Sugar La La’s and try to figure out why neither band succeeded.  Mats would call periodically and update me on new projects but nothing ever seemed to pan out.  A few years ago he suffered a stroke.  I never knew the details and although he still remained in touch,  I don’t think that Mats was prepared to deal with the music industry in the 21st century.  I think I irritated him during  our last email exchange because I hadn’t listened to something he had sent me.  A couple of weeks ago I saw on Facebook that Mats had died in his sleep.

            I was neither shocked nor surprised but I was immensely saddened by the fact that only a small portion of the world got to experience his immense creativity and talent.  A couple of years ago a label called Arena Rock Recording Company re‑issued all of the Primitons’ recordings digitally for the first time.  If you want to know what was really good in the 1980’s, check this out.  I wish someone would release the Sugar La La’s recordings.  Mats was one‑of‑a‑kind.

Wednesday, May 14, 2014

In a Digital World, Why Vinyl?

 Continuing on with the vinyl theme I wrote about last  week, I  wanted to share this paper I received from Garrett Keafer, one of the talented students in my Music  Industry Law class  at Trevecca Nazarene University here in Nashville. This paper combines a number of great insights  with some fascinating data and I highly recommend it.


These days, music is commonly becoming less and less personal; the age of physically owning a copy of music is coming to a close, and the days of streaming have yet to reach their prime. Yet, there is still a market for good old vinyl. In a world where actually owning music is becoming a rarity, how are records, the half-century old, dinner plate size way of storing music, making a comeback?
            It could be a little difficult to see where the appeal for a clunky format of music comes from when other options such as CDs, digital downloads, or even streaming is available. Of course, giving the LP a lifetime of a half century is generous. After all, very similar technology goes back as far as Thomas Edison’s first phonograph in the late 1800s (Mook, 2006).  Yet, the “vinyl revival” is very evident. While vinyl record sales still only make up a fraction of overall sales in the music industry, by 2006 the numbers of those buying used and new LPs took a turn for the better.
            Of course, the music industry is prone to shifting in unexpected directions, often into uncharted territory. For instance, for the first time since Apple launched their iTunes store in 2003, sales of both digital tracks and digital albums declined last year. This was not a miniscule upset either; according to Billboard Magazine, sales fell from 1.34 billion units to 1.26 billion units. Digital track downloads dropped an entire 5.7%. Digital album downloads, the less popular of the two options, only fell 0.1% according to Neilson SoundScan (Christman, 2014). This drop in digital sales is most likely due to music streaming services such as Spotify. Such services aren’t going anywhere.  
            This news may seem directly contradictory compared to the news that the vinyl record is not only on a comeback, but has reached a twenty-two year high as of 2013. Before last year, the latest peak in LP sales was in 2000 with about 1.5 million sales in the United States. After a small decline, in 2003, John Turton, the head of California based website Audiophileusa, said that not only are LPs selling well, but that the nation’s few remaining LP printing plants were working around the clock to meet the demand (Bragg, 2004). At that time, the “modest comeback” vinyl was seeing would be short lived. A downturn was coming throughout the following three years ending with LP sales dropping below one million units in 2006. This is most likely due to the introduction of digital music in 1998 and the rise of popularity in the early 2000s.Then somewhere between 2007 and 2008, sales took a huge leap and wound up landing in 2013 with approximately six million units (Oremus, 2014). That is quadruple the previous peak that occurred in 2000. The incline is getting steeper, as well. Sales in 2013 were up an astounding thirty-two percent from the previous year. 

Certain record labels, including Morphius Records, distribute vinyl internationally. The leaders of Morphius Records claim they gather around 30 percent of their revenue from vinyl sales. The vinyl to CD ratio becomes starker whenever local shops are considered. At these shops, LPs can outsell CDs two to one. A small record shop in Hampden, Maryland, called The True Vine sells seventy to seventy-five percent vinyl records (Mook, 2006). However, in 2013, indie retailer sales actually dropped nearly twelve percent, while non-traditional merchants such as Amazon, Starbucks, and live venues saw album sales go up 2.4 percent. Early this year, independent retailers are estimated to have had about thirty-five percent of the market share (Christman, 2014). This shows a parallel trend; as vinyl increases in popularity, as does the draw to a smaller, local, more intimate market

With all this, the revival of both vinyl and the local market is extremely clear and present. But the question remains; why vinyl? There are many possible answers to this question, none of which are more correct than another. Demographics, as usual, play a huge role in the reasoning behind the LP’s return. For baby boomers, nostalgia is a large part in their return to popularity. They can enjoy new music in an old form; they can finally justify holding on to their record players, dust them off and put them to good use. As for the younger demographic, they see it as obscure and vintage. The audiophiles see it as a superior way of listening to music (Bragg, 2004) because of the authenticity of analog sound. DJs are also responsible in part for the steady, consistent demand for vinyl over the years, insisting that vinyl is the superior wasy to mix music. One clever DJ even found a way to sample with analog technology by literally cutting up the vinyl. Essentially, vinyl is part of a cultural statement, both from artists and from their listeners.
For artists, it is a statement that shows artists care about the presentation of their music. Vinyl has an out-of-the-mainstream cachet that appeals to fans and artists that are looking to prove their emphasis is on the music, not the profits that come from the music. It is tied to a growing subculture that has an interest in all things vintage, including analog music. So at least to this demographic, vinyl is cool again (Mook, 2006). Artists that present themselves in the vinyl format, including Daft Punk, the holder of the bestselling vinyl album of 2013 (Oremus, 2014), show that they care about the music they create and they aren’t just naive artists with their heads in the clouds. It proves they are connected to their fans. Meanwhile, distributors use this trend as a business strategy to state they aren’t just a big box store or a major distributor. To them, it’s all about presentation, strategy, and psychology (Mook, 2006).
On the other end of the presentation are the fans. This millennial generation seems to be attracted to vintage things of any sort, mixed with a little obscurity. Another example of this attraction besides the vinyl revival is thrifting. Music listening habits aren’t the only thing being affected by this attraction; fashion, as seen by the retro trend; culinary arts, as seen by obsession with foods that are gluten free or generally uncommon foods; cinema, as seen by the rage amongst independent film festivals; and even music itself, as seen by the growing “Indie” music genre. The millennial generation is bent toward separating themselves, not just from previous generations, but also from each other. This is this generation that is giving promising incentive to the vinyl investment.
There are huge risks involved with vinyl, especially concerning shipping. They are also extremely expensive to create in comparison to digital counterparts. A CD master recording costs about $150, while the far more complicated recording on vinyl costs nearly $700. Even before recording process begins, the vinyl album itself is expensive to produce. All of this means that the price for a single vinyl album can be extremely expensive to get off of store shelves. Yet, people are happy to take them off retailer’s hands, particularly young people. This gives hope to the reviving vinyl industry (Mook, 2006).
Therefore, though the vinyl trend may currently be only a small part of the industry, it won’t be long before it takes a larger portion. Digital downloads and streaming aren’t going anywhere, however. For the longest time, the music industry focused on accessibility of music. The digital revolution opened up all the possibilities in that regard; the simplest way to distribute music was not by CD, but by the internet. iTunes took advantage of this and made digital easy. The digital method will grow to be the main way music is distributed around the world, with streaming following close behind. Yet, streaming is not the most effective way to take music on the go; after all, the amount of data that is required by mobile devices can be expensive for users to keep up with.
The accessibility of streaming and digital download will remain a staple of our music intake, but the authenticity and feel of vinyl will grow to be a larger part of our culture, especially as those who are interested in the vintage feel grow in number. According to Will Oremus from Slate, the rise of vinyl is best understood against the backdrop of the simultaneous decline in popularity of the CD.
“As digital music has migrated from compact discs onto hard drives—and, increasingly, the cloud—collectors interested in a physical copy of their favorite albums no longer see a reason to prefer CDs to LPs. In fact, many prefer the latter, whether for the sound quality, the nostalgic appeal, or simply the beauty of the vinyl record as a design object. CDs and cassettes had their virtues as media, but aesthetics was not among them (Oremus, 2014).”

            In the light of the CD decline, the parallel rise in popularity of both Vinyl and Streaming makes more sense, and many retailers are taking advantage of this trend. For instance, when a vinyl album is bought from Amazon, they will present you with a digital copy for free. Not only is this offer available for present purchases, but also for past purchases. If you have ever bought vinyl from Amazon in the past, you can freely download a digital copy at any time. Amazon has solved the biggest problem with buying analog music portability. Audiophiles praised the release of this service in 2013, and many other retailers followed the “auto-rip” trend throughout the rest of last year (Baldwin, 2013).
Still, as Statista (Figure 1), reminds us, the resurgence of the LP has had only a marginal effect on the industry as a whole. In 2013, vinyl albums accounted for only two percent of the entire profit of the industry (Richter, 2014). This could be due to the fact that about 65 percent of LP sales in 2013 came from independent music stores. Still, the “auto-rip” service could end up becoming the latest trend in music formatting with Amazon leading the charge last year. It presents the best of both worlds; the portability derived from the digital age of music with the vintage authenticity of the LP. After all, for the sound-purist audiophiles, the distinction between digital and vinyl all comes down to math and science (Bragg, 2004). While the digital format recreates, or more accurately mimics, sound; analog music is sound. 
So perhaps that is the most accurate reason why vinyl is making a reappearance; while it is a staple of a growing subculture, it really comes down to the fact that vinyl is simply more authentic. The industry will have to adapt to the simultaneous rise of digital streaming and the resurgence of vinyl, which could prove to be extremely difficult. The accessibility of digital and the feel of vinyl can coexist, and will coexist throughout the coming years, and all eyes on the industry to see if it will keep up.

Works Cited

Baldwin, R. (2013, April 3). Now When You Buy Vinyl from Amazon, You Get a Digital Copy fro Free. Retrieved April 11, 2014, from Wired:
Bragg, R. (2004). The Vinyl Experience; Remember those old LP records? In some circles, they're making a comback. . San Antonio Express News, 1.
Christman, E. (2014, January 3). Digital Music Sales Decrease for the First Time in 2013. Retrieved April 11, 2014, from Billboard:
Mook, B. (2006). Vinyl Records Enjoying Resurgence. Daily Record and the Kansas City News-Press, 1.
Oremus, W. (2014, January 6). The Hot New Audio Technology of 2014 Is... Vinyl? Retrieved April 9, 2014, from Slate:
Richter, F. (2014, January 6). The LP is Back! Retrieved April 11, 2014, from Statista: