Book Report: Unfair To Genius

Anyone who has been around the music business for any length of time begins to assume that certain things are immutable and it shakes our foundations when their existence is threatened.  For example, the recent   We may all grumble about these organizations but it feels strange to look at a future where their relevance is diminished.  Of course,  in the grand scheme of things these are relatively recent institutions. ASCAP was founded in 1914, BMI followed in 1939.  The history of both organizations-their early competition and their interaction with the US Department of Justice is fascinating.

attacks on BMI, ASCAP and SESAC.

            This is just one reason why I recommend Gary A. Rosen's book Unfair  to Genius (Oxford 2012).  On the surface, the book is about (as its subtitle states) "The Strange and Litigious Career of Ira B. Arnstein."  Arnstein was a little-known Russian-born composer who with some sense of self-delusion and bravado waged a one‑man war against some of the most famous composers of the 20th century (such as Irving Berlin and Cole Porter) together with their publishers, as well as BMI and ASCAP.  Arnstein literally believed that everyone was either infringing upon his work or conspiring to cover up the infringement. He filed countless lawsuits, many pro se, including one which counted 23 defendants.

            From a legal history standpoint,  this book is compelling in its exploration of  the early history of modern copyright infringement litigation in this country.  That sounds like a dry premise but in reality, many of the concepts that define copyright infringement litigation were developed in these cases and in the judge’s opinions. The bonus is that the book also chronicles the beginnings of the music publishing world as a big business, shows in captivating detail the early rivalry between ASCAP and BMI and brings such characters as Edward B. Marks, David Sarnoff, Judges Jerome Frank and Learned Hand to life.  One of the most colorful characters in the book is Sigmund Spaeth a self-described musical detective and a name I remember dimly from my childhood. Who knew that he was the first celebrity expert witness?

            I have yet to read a better account of the music business in the early 20th century and like all good histories, the book provides perspective to some of the current problems facing the music industry.

New Live Performance Income for Songwiters

Here’s some potentially good news for independent touring artists.  After operating somewhat under the radar, both BMI and ASCAP have made a big push in allowing songwriter artists to collect income from live performance of their work.  While income from live public performance is of course implicit in the rights that BMI, ASCAP and SESAC collect, as a practical matter the organizations historically only have only paid  this income to major artists performing at major venues.  According to an article in the Tennessean a week or so ago, technological innovations now allow the performing rights organizations to direct some of this income to smaller acts who report their performances correctly.  

            The BMI system is called BMI Live, ASCAP’s is called Onstage and SESAC has a program called Live Performance Notification System. 

            I don’t think there is any data  on how much a small or mid-range artist could generate from these programs, but it would be foolish not to investigate them.  One doesn’t want to leave money on the table.  It is great to see technology being used to assist songwriters and performers for once.

Advice for (Truly) Independent Artists

survival guide for indie rockers.  Catchy idea.  I did a lot of preparatory work on the subject but for some reason could not pull it off.  After a lot of thought, I have decided to analyze why the concept was flawed.

            The reality was that I was trying to promote myself as an attorney to artists in an environment where the traditional record deal and publishing deal was rapidly changing. In essence, I was saying to artists, “even though you’re doing everything on your own, you still need a lawyer.”

            It’s a problem of classification. It’s hard to know how to define an independent artist these days. From what I see, artists who are signed to what we once called “independent labels” have the same problems as any artists who signs a record deal – except that the money is smaller these days and the terms more potentially more draconian.  .  What drove the point home to me was a recent article about the band Grizzly Bear in New York magazine.  This piece showed in dry economic terms what the business of being a moderately successful artist in 2012 is like. It’s really worth searching out.  So, of course, artists like this need lawyers; the game is the same.

           

            So what about artists who are not tied to one particular company or who are truly releasing everything on their own?  What do artists like these need from a legal standpoint.  I have come up with several ideas:

            1.         If you are in a band you need a band partnership agreement.  I have said it before and young bands hate to deal with these things – but they are extremely important in avoiding problems and potential lawsuits down the road.

            2.         You need to register with BMI, ASCAP or SECAC.

            3.         If you are touring it is a good idea to incorporate (and investigate umbrella insurance).

            4.         If you’re a band, trademark your name.

            5.         Don’t sign anything without having a lawyer review it.  These days I have seen that even the simplest agreements are taking on crazy unnecessary dimensions.  Spend a little money to educate and protect yourself.

            6.         Register with Sound Exchange

            7.         If you are working with outside producers and musicians, make sure you get an agreement or at least a release from each of them.

            8.         Listen to the Rolling Stones (I threw that in but it’s still a good idea).