BarryDonegan
10-05-2011, 02:54 PM
http://www.gazzmic.com/blogarchive/11-10-05/The_Supreme_Court_Is_Right_Digital_Downloads_Are_N ot_a_Public_Performance.aspx?CntPageID=1
"I will preface this with a firm statement: conditions are bad for musicians, and our industry needs all the help it can get. However, achieving this help through the wrong policies will do more harm than good. I am a musician, too. I want music to be the most profitable industry in the world.
It may seem technically easy to help musicians by seeking court precedent that would in effect allow digital downloads to qualify as public performances under copyright law, but this is unfair for everyone else in the chain and won't create any serious money for the vast majority of artists.
Let's look at it this way: by the time a song gets to a lawful download provider such as iTunes, every participant in the creation of the song will have had an opportunity to engage in a contract with the parties in question to dictate what the compensation for the performance will be. Some take cash payments for sessions and others play in exchange for a cut of the profits from the song. Additionally, royalties paid to artists for digital downloads are often covered under "mechanical royalties" in the artist's record contract, meaning they may already be paid a certain type of royalty when songs are mechanically reproduced, and this is a different type than a performance royalty that already exists naturally and makes better sense with transactions like CD sales and digital downloads.
In the vast majority of cases, the label owns the musical content by that point and they establish a payment arrangement with the content distributor, who then distributes the content and pays the label under the assumption that the label has arranged payment with all those who participated in creating the song. Effectively, it is the label's responsibility to take care of that in this particular case.
It makes no sense that the content distributor would negotiate a special and separate arrangement with the artists and labels, one to pay a royalty and the other a cut of the proceeds of a digital download. It is impossible for an artist to negotiate his or her payment after the fact, and a statutory minimum created by government decree is always a ceiling, not a floor, and the amount of money they will demand will not be significant for any specific artist. It will be a significant cost for content distributors who have already negotiated a payment arrangement in most cases, and it will also neuter the ability for the artist to make demands for higher percentages from their label.
In the case of an indie artist without a label, you will be receiving the funds directly from the distributor anyway, so there is no issue when it comes to getting paid for a download in this manner."
...More at the link.
Thoughts?
"I will preface this with a firm statement: conditions are bad for musicians, and our industry needs all the help it can get. However, achieving this help through the wrong policies will do more harm than good. I am a musician, too. I want music to be the most profitable industry in the world.
It may seem technically easy to help musicians by seeking court precedent that would in effect allow digital downloads to qualify as public performances under copyright law, but this is unfair for everyone else in the chain and won't create any serious money for the vast majority of artists.
Let's look at it this way: by the time a song gets to a lawful download provider such as iTunes, every participant in the creation of the song will have had an opportunity to engage in a contract with the parties in question to dictate what the compensation for the performance will be. Some take cash payments for sessions and others play in exchange for a cut of the profits from the song. Additionally, royalties paid to artists for digital downloads are often covered under "mechanical royalties" in the artist's record contract, meaning they may already be paid a certain type of royalty when songs are mechanically reproduced, and this is a different type than a performance royalty that already exists naturally and makes better sense with transactions like CD sales and digital downloads.
In the vast majority of cases, the label owns the musical content by that point and they establish a payment arrangement with the content distributor, who then distributes the content and pays the label under the assumption that the label has arranged payment with all those who participated in creating the song. Effectively, it is the label's responsibility to take care of that in this particular case.
It makes no sense that the content distributor would negotiate a special and separate arrangement with the artists and labels, one to pay a royalty and the other a cut of the proceeds of a digital download. It is impossible for an artist to negotiate his or her payment after the fact, and a statutory minimum created by government decree is always a ceiling, not a floor, and the amount of money they will demand will not be significant for any specific artist. It will be a significant cost for content distributors who have already negotiated a payment arrangement in most cases, and it will also neuter the ability for the artist to make demands for higher percentages from their label.
In the case of an indie artist without a label, you will be receiving the funds directly from the distributor anyway, so there is no issue when it comes to getting paid for a download in this manner."
...More at the link.
Thoughts?