Mythos charts #1 on Revernation:
On Sept 18, 2013, Music BC along with CMPA, ABPBC, Magazine Association of BC presented a forum on the new changes to the federal Copyright Act. This was our first joint venture project together and was funded by the new CreativeBC media development corporation.
We had a very good music industry group. I was asked to mentor the session and I thought that I would share the case studies and discussions that came out of that session. The first few examples deal with traditional issues and the last few deal with some of the more controversial provisions in the new Act. Next week, we will discuss what you think of the “fairness” of the possible results, so please give you feedback to this Blog.
#1 Jimmy D. writes a new song just before going on stage at a café open mike. He plays the song live (he has not written lyrics, made a chart or recorded the song). Bill F. loves the song. He writes the song lyrics down and records the song on his iPhone. That night Bill F. records the song in his home studio and releases the recording on his website and posts it to iTunes for sale. Jimmy D. is not amused and sends Bill F. an email telling him that he has stolen his song and is infringing his copyright. Does Jimmy D. have the right to assert a copyright in the song?
Issue: when does a copyright actually come into existence?
Copyright Act does not protect ideas, concepts, or themes, but that it does protect the language and words used to express such ideas, concepts and themes. Copyright is granted through statute and not common law.
Copyright only exists once the musical work, sound recording or performance is in a fixed for e.g. sound recording, chart, manuscript. “Fixation” is a threshold consideration that must be used in copyright infringement cases by courts to determine if copyright actually exists. In Canada, a work “must be expressed to some extent at least in some material form, capable of identification and having a more or less permanent endurance” (Canadian Admiral Corp. v. Rediffusion Inc.,  20 C.P.R. 75) to be subject to copyright protection. Fixation is not a statutory requirement in Canada and the use of this requirement is the subject of continued debate.
On the face of it Jimmy D. did not have his idea in a fixed form and therefore he had no copyright in the work. Is that a fair result for Jimmy D.? Why didn’t the Federal Government deal with Fixation in the latest round of Copyright Reform Bill C-11?
#2 Frank K. released as recording of a song that he wrote on a CD. The CD was purchased by a candidate for the Keep our Nation Pure Party. The candidate, to the horror of Frank K., decided to use the song in his campaign. What rights does Frank K. have?
Issue: moral rights to the integrity in the song and the sound recording.
14.1 (1) The author of a work has, subject
to section 28.2, the right to the integrity of the
work and, in connection with an act mentioned
in section 3, the right, where reasonable in the
circumstances, to be associated with the work
as its author by name or under a pseudonym
and the right to remain anonymous.
(2) Moral rights may not be assigned but
may be waived in whole or in part.
Frank can argue that his “moral right” to the integrity of his work has been infringed upon. If the candidate did not respond to a cease and desist letter, Frank would have to go to court and apply for an injunction to stop the candidate from damaging the integrity of his song.
#3 The band called the Raving Lunatics want to cover the song “Cry me an ocean” written in 1940 by two composers, one of whom died in 1955 and the other who died in 1961. Can the band use the song without getting a mechanical license and paying royalties?
Issue: when does a song become public domain?
6. The term for which copyright shall subsist
shall, except as otherwise expressly provided
by this Act, be the life of the author, the re-
mainder of the calendar year in which the au-
thor dies, and a period of fifty years following
the end of that calendar year.
9. (1) In the case of a work of joint author-
ship, except as provided in section 6.2, copy-
right shall subsist during the life of the author
who dies last, for the remainder of the calendar
year of that author’s death, and for a period of
fifty years following the end of that calendar
year, and references in this Act to the period af-
ter the expiration of any specified number of
years from the end of the calendar year of the
death of the author shall be construed as refer-
ences to the period after the expiration of the
like number of years from the end of the calen-
dar year of the death of the author who dies
If you do the math, then this song is still not in the “Public Domain”. The Raving Lunatics could eiher apply for a mechanical license through the CMRRA or they could wait for a few years until the song came into the Public Domain.
#4 Tammy is an avid gamer. She loves to capture her favorite battle scenes and edit them to music. One day, Tammy edited her “best of WOW” screen captures to the Bare Naked Ladies song “If I had a Million Dollars”. She then posted the result for free for anyone to view to his Canadian based website: www.wowmashups.com. Can BNL make Tammy take down this mash-up?
Issue: operation of new “mash-up” provisions of Act
29.21 (1) It is not an infringement of copy-
right for an individual to use an existing work
or other subject-matter or copy of one, which
has been published or otherwise made available
to the public, in the creation of a new work or
other subject-matter in which copyright subsists
and for the individual — or, with the individu-
al’s authorization, a member of their household
— to use the new work or other subject-matter
or to authorize an intermediary to disseminate
(a) the use of, or the authorization to dis-
seminate, the new work or other subject-mat-
ter is done solely for non-commercial pur-
(b) the source — and, if given in the source,
the name of the author, performer, maker or
broadcaster — of the existing work or other
subject-matter or copy of it are mentioned, if
it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to
believe that the existing work or other sub-
ject-matter or copy of it, as the case may be,
was not infringing copyright; and
(d) the use of, or the authorization to dis-
seminate, the new work or other subject-mat-
ter does not have a substantial adverse effect,
financial or otherwise, on the exploitation or
potential exploitation of the existing work or
other subject-matter — or copy of it — or on
an existing or potential market for it, includ-
ing that the new work or other subject-matter
is not a substitute for the existing one.
This is a new and very controversial provision. Again, on the face of it, Tammy is within her rights to post this video mash-up without infringing on the BNL’s copyrights. BNL would have to prove that Tammy some how caused “substantial adverse effect,financial or otherwise” with her post.
What about BNL’s moral rights?
#5 Weird Bob wants to make a living out of doing funny versions of songs. Bob decides to poke fun at the song “Freewill” by Rush. Weird Bob’s version “Freewilly” will be released in Canada shortly. Does Bob need any licensing or permission to release this track?
Issue: operation of new “parody and satire” exceptions in Act.
Fair Dealing. This is a statutory exception to copyright infringement. Fair Dealing has been applied to research, private study, criticism, reviews and news reporting. Bill C-11 introduced three new permissible purposes: education, parody and satire.
29. Fair dealing for the purpose of research,
private study, education, parody or satire does
not infringe copyright.
Fair Dealing is an exception to copyright. The question here is whether a commercial exploitation of a parody or satire based on an existing song is “fair dealing” under the courts. There is no clear answer at this point and I am assuming that there will be some litigation on this very issue. What do you think?
#6 QRVT FM Vancouver transferred all of its music playlist onto the station computers. After 25 days, the station wipes the entire drive and re-transfers all of its music to a new drive. This process is continued and repeated every 25 days. Does the station have to pay a “broadcast mechanical tariff”?
Issue: do new provisions in the Act allow radio stations to avoid payment of so-called “Ephemeral Rights” royalties?
30.8 (1) It is not an infringement of copyright
for a programming undertaking to fix or
reproduce in accordance with this section a performer’s
performance or work, other than a cinematographic
work, that is performed live or a
sound recording that is performed at the same
time as the performer’s performance or work, if
( a) is authorized to communicate the performer’s
performance, work or sound recording
to the public by telecommunication;
( b) makes the fixation or the reproduction itself,
for its own broadcasts;
( c) does not synchronize the fixation or reproduction
with all or part of another recording,
performer’s performance or work; and
( d) does not cause the fixation or reproduction
to be used in an advertisement intended
to sell or promote, as the case may be, a
product, service, cause or institution.
(2) The programming undertaking must
record the dates of the making and destruction
of all fixations and reproductions and any other
prescribed information about the fixation or reproduction,
and keep the record current.
(3) The programming undertaking must
make the record referred to in subsection (2)
available to owners of copyright in the works,
sound recordings or performer’s performances,
or their representatives, within twenty-four
hours after receiving a request.
(4) The programming undertaking must destroy
the fixation or reproduction within thirty
days after making it, unless
( a) the copyright owner authorizes its retention;
or ( b) it is deposited in an archive, in accordance
with subsection (6).
(5) Where the copyright owner authorizes
the fixation or reproduction to be retained after
the thirty days, the programming undertaking
must pay any applicable royalty.
Ephemeral right bring about $23 million in revenues to the music indsutry in Canada. This is an example of a possible work-around to avoid having to pay any of these tarrifs. Do you think rdaio should have to pay a “broadcaster mechanical tariff” for putting their music onto their systems?
Any other copyright questions? Ask away!
Bob was very excited to present “A Career in Music: the other 12 step program” to a class of VCC music students. He was grateful to also sell-out of his first run of printed books. Next order will be coming soon. In the mean time, you can always order on Amazon.
I originally intended my book A Career in Music: the other 12 step program to be only available as an eBook, however I have had an overwhelming number of requests for a printed version. I scratched my head as to how to make that work as there are dozens and dozens of hyperlinks in the eBook. So, I added an appendix with all of the links printed out and also posted a companion Blog that provides all the links in each chapter so that the reader can go to the links as they read along. Here is that Blog:
Printed book is now available on Amazon at: https://www.createspace.com/4413274
Check out a new article that looks at the eBook and the new Mythos album.
Please click and tweet this message to your TWITTER followers about Bob D’Eith’s new music biz book:
It is as easy as click and tweet.
Thanks from Adagio Music
Check out a review of “A Career in Music” in the latest edition of Canadian Musician Magazine.
A Career In Music: The Other 12 Step Program by Bob D’Eith is an e-book written to fill a void in the world of music business books, offering expert advice specifically tailored to those trying to navigate the Canadian industry.
After over two decades in the Canadian music business as an artist, entertainment lawyer, and the Executive Director of Music BC, D’Eith has an understanding of how independent artists succeed or fail. The e-book delves into the basic tools that every independent artist should have in today’s complicated and ever-changing music industry. Artists are largely expected to develop themselves, which requires a sound understanding of many parts of the business, both traditional and incoming.
A Career In Music examines how to identify and take advantage of income opportunities, with links to the necessary online registration services. Fully interactive, the book also shares useful links to other artist pages, industry sites, and discussion examples, along with an appendix full of checklists, outlines, resources, and more detailed information on topics addressed in the book.
For more information or to access the title, visit www.adagiomusic.ca/a-career-in-music/.
Check out the Georgia Straight article in this weeks paper. Thanks to Adrian Mack for adding a blurb on A Career in Music to the music notes.
Stuart Derdeyn recently interviewed Bob D’Eith about the creation of his new book “A Career in Music: the other 12 step program” for the Province newspaper. Bob was thrilled with the piece and wanted to share this with followers of the Adagio site.
Check it out:
I am really enjoying having both a book and a new album to promote. I get to be my own guinea pig trying out new ideas to get the word out online. As we explore in the book, social media is about creating a dialogue and engaging your fans in a way that invites them to participate in your project. There are many ways to do this, but I wanted to look at one that really helped me this week. Asking fans for advice.
Last week, I set up two little Facebook contests. One for my book and one for my album.
For every Mythos album ever released (9 in total), I asked for the best online marketing idea for the album. For the book, I offered a free copy for the best online marketing idea for the book. The only rule for both was: no cost.
I was inundated with wonderful suggestions. It really engaged the fans and allowed them to be creative with me. It was fully engaging as some of the suggestions lead to further discussions on the ideas.
As far as the album, the best idea was to enhance the online radio experience on Last.fm (Mythos’ #1 listening source) by (a) updating the bio sections, (b) posting “shouts” on similar artist pages and (c) making sure that the older tracks also had a post about the new album. It was time consuming to implement, but the response was immediate.
The best book idea was to send a free promo copy to the heads of music business schools across Canada with the idea for them to use it as a text for their Canadian music business courses. This seems obvious when it is said, but I had been so focused on traditional marketing through press and online, I did not think about the obvious. Again, the response to this was immediate and I already have some schools looking at the book for their classes.
Moral of the story: your fans are allies and love you. Don’t take advantage of them, but certainly engage them in your journey. For the most part, they are ready, willing and very able to help.
A Career in Music: the other 12 step program
If you write your own songs, either with a band, on your own, or co-writing with others, developing an understanding of how music publishing works is probably the most important thing you can do to further your career in the music business.
Yet, without a doubt, music publishing is the most confusing aspect of this business. The number of blank stares that return my gaze after I explain music publishing to an artist over coffee or in our boardroom is countless, and perhaps warranted. This stuff is complex.
To help alleviate at least some of this confusion, I’ve put together this summary for you below. It’s just that: a summary…but feel free to call me with further questions. Enjoy.
- Kurt Dahl, June 10, 2013
During the Vancouver Island Music Business conference, Andrew King (the editor of Canadian Musician Magazine) interviewed Bob D’Eith about his new eBook “A Career in Music: the other 12 step program”. If you would like to find out a bit more about the book and what motivated Bob to write the book, check out:
Canadian Musician Radio: http://www.blogtalkradio.com/canadianmusician/2013/05/23/cm-radio–may-22-2013
Also, hear a fantastic interview with Ryan Guldemond from Mother Mother.
“If you’re hoping to make a career out of music, this book could be the difference between getting it right and flaming out.” (Alan Cross May 2013)
Kindle link: http://www.amazon.com/dp/B00CLZL43O/ref=r_soa_w_d
Canadian Musician Radio interview about the eBook: http://www.blogtalkradio.com/canadianmusician/2013/05/23/cm-radio–may-22-2013
After over two decades in the Canadian music business, Bob D’Eith has learned a lot about how independent artists have succeeded or failed. “A Career in Music: the other 12 step program,” was written to fill a void in the world of music business books. Bob observes that, “there are many music business books written from the U.S.A. or U.K. perspective, but none that I am aware of from the Canadian perspective.”
This book delves into the basic tools that every independent artist should have in today’s complicated and ever changing music industry. More than ever before, artists are being expected to develop themselves. That means understanding many parts of the business both traditional and cutting edge.
“A Career in Music” examines where the money is for Canadian artists and how to get it. Bob says, “half of the battle is knowing where to register and with what organizations.” As an eBook, Bob D’Eith has conveniently added links to all of the necessary online registration services.
Fully interactive, “A Career in Music” is full of useful links to other artists, websites and discussion examples. In addition, the book contains an appendix full of checklists, outlines, resources and more detailed discussions of topics addressed in the book.
EXCERPT FROM GRANT LAWRENCE FORWARD:
“…Bob D’Eith gets this [business]. In fact, as you are about to read, Bob understands far, far more about the music business that I ever could. For the past quarter century, Bob has done it all. He’s been a musician, a recording studio owner, a music publisher, the longtime executive director of Music BC, a chairman of FACTOR NAB, a JUNO rep, and is one of the co-founders of BC’s hugely successful artist development Peak Performance Project. Most importantly, Bob is an entertainment lawyer. He knows exactly what you as an artist can and cannot do legally speaking. It doesn’t get any more clear-cut than that.
I’m very glad that my friend Bob finally decided to get off his lazy ass and write this book. It needed to be written. I just wish he had done it 25 years earlier. It would have made my life as an independent musician much, much easier. Tap into his knowledge, enjoy the ride, and maybe even buy him a beer. He deserves it.”
Mythos “Journey” is now available on dozens of digital platforms around the world including iTunes:
I was just sent an article from a friend you can read here about legendary multi-instrumentalist and former Rolling Stone Mick Taylor, who plays guitar and piano on two of my favorite Stones albums (Sticky Fingers and Exile on Main Street), among others. The article is a shocking and sad depiction of Mr. Taylor’s life, and the poverty-stricken state he currently finds himself in.
The article goes on to explain how this came to be, and how The Rolling Stones unilaterally decided to stop paying him royalties in 1982 based on advice from their new record label and publishing company, despite the fact that Taylor’s songwriting and musical contribution to some of the biggest Stones songs from this era is undeniable. Since then of course, the rest of the Stones have gone on to become multimillionaires and some of the most wealthy musicians in the world, and Mr. Taylor has received nothing.
If there ever was a real-life cautionary tale to sign a Band Agreement between you and your band mates, this is it!
- Kurt Dahl, March 13, 2013
Feeling pretty excited this week, as the latest single ‘Scarecrows’ by my band One Bad Son just cracked top 5 across Canada! The song is the first top 5 of our 8+ year career, and has been picked up from coast to coast. We just got back from a cross-Canada tour opening for Buckcherry, which really helped push the single to the next level at radio. You can hear the song on YouTube here. Crank it up and enjoy…
- Kurt Dahl, March 7, 2013
After six long years, Mythos has delivered 11 new tracks for release in the spring of 2013. We are very excited about this new record and we think that fans will fall in love with the music. Keep an eye out for cool pre-release promotions.
…don’t believe the hype!
In the past few days I’ve seen a bunch of Facebook friends post status updates that aim to protect their copyright, stating in part, “In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos etc. (as a result of the Berner Convention)…”
The idea behind the “notice” is that Facebook’s listing as a publicly traded company will negatively affect its users’ privacy, which is not true. In reality, Facebook and its users are still bound to the same terms and conditions that were accepted by users when they signed up for the service. Posting a notice of this kind on your profile does nothing to change that.
It’s also worth noting that there is no ‘Berner Convention’. There is the Berne Convention for the Protection of Literary and Artistic Works (see here), but that typo isn’t the real issue in the post. There is also reference to the Uniform Commercial Code, a set of US-recommended laws that regulate the way states do business with each other. However, this doesn’t really apply to social networks.
The bottom line: anyone who creates a Facebook account agrees to their terms and conditions (found here). It would be like walking into a bank and posting a revised mortgage agreement on the wall, and expecting the existing terms of your signed mortgage to be instantly amended. Copying and pasting a made-up legal statement into your Facebook status doesn’t make an existing contractual agreement null and void.
So what are your options if you’ve already amended your privacy settings and still don’t agree with Facebook’s terms and conditions? Leave Facebook, or deal with it.
- Kurt Dahl, Entertainment Lawyer, Nov. 28, 2012
For some reason, the last week has seen me drafting or negotiating a ton of agreements between Artist and Producer, outlining what percentage of record sales the former will pay the latter. And yes, records do sell sometimes, so this can be important. If your record “goes Adele” and sells 25 million worldwide, you’ll rue the day you coughed an extra percentage point to your producer without reading this first.
Whether a producer should receive a percentage of record sales and/or songwriting points (or neither), was discussed by yours truly here. Once it is determined that they will receive a % of record sales (which is normally the case), the next question is: what amount does that percentage apply to?
The key to answering this question is understanding the acronyms SRLP and PPD, and their differences.
SRLP is the “suggested retail list price”, which is the approx. price charged by the retailer (HMV, Wal-Mart, or one of the few retailers left).
PPD is the “published price to dealers”, which is the approx. price that distributors charge their dealers, or the “wholesale price”. So – PPD is lower, SRLP higher.
Whichever royalty base is used, it must be clearly stated as such in the contract between Artist and Producer, so both parties know what to expect going forward. It can make a huge difference in terms of dollars. For example, a 3% royalty to Producer on an SRLP of $12.99 would be approx. $0.39 per record sold, but if based on PPD (about $6.50 — roughly 50% of retail) then you’d need to double the Producer’s royalty to about 6% to come up with the same royalty of $0.39 per record going to said Producer.
Whether you agree to pay the Producer a portion of PPD or SRLP, the calculated royalty should be proportionate. In other words, the royalty per record sold going to the Producer should be more or less the same whether you’re going SRLP or PPD.
Til next time, keep rockin’.
p.s. found this great old photo of Phil Spector, the ultimate producer for a time (until he started pulling guns on the acts he was recording…see here for more)
- Kurt Dahl, Nov. 7, 2012