K Street Lobbyist and Former P2P United Director Adam Eisgrau.

As we suspected, the nomination of Dr. Carla Hayden for Librarian of Congress looks troubling for writers,songwriters and other creators.  If you were not aware the Copyright Office is part of the Library of Congress, and thus the Librarian of Congress could have deep influence over copyright policy in the US.   Thus it deeply troubles us that we see the former executive director of the piracy alliance, P2P-United, endorse the nominee for Librarian of Congress.

The  experience of musicians over the last 17 years is that copyright exceptions like the DMCA “safe harbor” have been abused by companies like Google/YouTube to generate billions of dollars in income while often paying musicians nothing.   At the same time the DMCA safe harbor is creating an internet-wide market failure that has made it impossible for musicians to obtain a fair market value for their songs and recordings in the digital realm.

To be clear we do not know Dr. Hayden’s views on copyright,  but we hope she does not heed  Esgrua’s call to further “balance” copyright towards the exemptions and exceptions.   The companies that benefit from the exceptions are already some of the biggest companies on earth.   The Library of Congress needs a Librarian that understands that the books that fill the shelves are produced by copyright incentives not exceptions.

Search for “free music” in the Apple App Store.

Grab this one: Free Music -Stream Music Mp3 Video Player.

Here it is on my home screen.

Look ads!  Click on blue triangle.  Hope you didn’t pay too much for that shitty mobile ad HBO digital marketing geniuses!

“Ads by Google.” Yes the company that wants to monetize the worlds piracy.

Check for one of my songs. Looks like studio recording…

Yes, indeed this is our studio recording.

Here’s another. Stay Classy New York Times.  Who else is on here?  Studio recordings?

Dead Kennedys.

Cake.  Google is calling you “dude.”  Studio Recording!

Old 97’s.

Lessons learned:

1. Apple and Google can get along when it comes to fucking over artists.
2. Google mobile advertising is absolute horse-shit.
3. The voluntary guidelines to stop click fraud and ad supported piracy are double horse-shit.
4. They aren’t gonna stop unless someone goes to jail.

Never mind the cultural sensitivities: Canadian sci fi writer Cory Doctorow calls Dr. Hayden a “no foolin'” librarian.  

If Cory Doctorow is FOR the nominee for Librarian of Congress which oversees the Copyright Office is something seriously wrong? Cory Doctorow is one of the most dishonest and hysterical critics of copyright protections and artist’s rights. To call him a “demagogue” is putting it lightly. For example in this same article he comes up with one of his patented falsehoods seemingly designed to generate maximum hysteria from his ignorant tl/dr followers:

“Next up: watch for a move to rip the US Copyright Office (which now gets to make rules on things like whether the DMCA prohibits you from using generic insulin in your insulin pump) out of the Library of Congress…”

The Copyright Office could prohibit you from putting generic insulin in your insulin pump? I want some of the generic insulin he is smoking. This is such a wild claim I don’t even think it’s been debunked yet. It makes no sense. It is science fiction. And remember Cory Doctorow is really good at science fiction (seriously).  Maybe he got confused. He thought he was writing fiction?

Thankfully  Mr. Doctorow  encouraged me to go ahead and look into the background of the Librarian of Congress nominee, Dr. Carla Hayden.  A two minute search on my iPhone revealed  that Dr. Hayden is on the leadership council for the Open Society Institute of Baltimore. This is not in and of itself a bad thing. I’m sure they do good work. The problem is that OSI Baltimore is a part of George Soros’ Open Society Foundation. The Open Society Foundation is quite hostile to copyright protections for authors.   The Open Society Foundation is STILL calling for further exceptions and limits to copyright knowing full well author’s revenues have been devastated by lack of effective copyright protections the last 15 years.  This concerns me.  This should really concern every author.

We should really thank Mr. Doctorow for alerting us to this possible “Manchurian nominee” for Librarian of Congress.  Artists and authors should get a chance to thoroughly question her stances on copyright protections.

Canadian Sci-Fi Writer Cory Doctorow in natural habitat. By Ed Schipul from Houston, TX, US (Cory Doctorow @ eTech 2007) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)%5D, via Wikimedia Commons

It’s hard to believe that an artist has to go through what Kesha has been through, but there it is.  We’ll have more on this in coming days, but this post by @morayati is one of the better ones that summarizes the problems with the case.

One of the problems with the “savior” approach to A&R is that people lose sight of the reality that regardless of how effective the producer is, regardless of how great the songs are, hit records are a product of hundreds of people working their fingers to the bone to make something happen–starting with the artist.  That includes everyone at the record company, the managers, booking agents, the entire team.  And the producer.  If you have that team and those resources behind a great artist, that producer may prove himself to be not that critical a component to the artist’s career after all.

Why Sony is allowing this to happen at all, but especially when the public is on a collision course with Sony Corp  (aka “Big Sony”) is a mystery.  They could do the right thing now or wait until Tokyo tells them to.

Even looking at it from that cold-blooded commercial point of view, it’s certainly not worth compromising your personal ethics over the A&R savior-du-jour.

Some reporting questions for the Kesha court case

The key quote from the Kesha/Dr. Luke court battle, which has just taken a dispiriting turn, is this, by judge Shirley Kornreich: “My instinct is to do the commercially reasonable thing.” A lot has been written, rightly, about what a chilling statement this is, and there’s been a lot of talk about how best to support Kesha.

Let me apologize in advance for the rather lo-fi nature of this video, but it’s from an informal webinar I’ve created for artist’s rights activists in training.   Here I explain the basics of ad funded piracy; how Google profits from this activity; how this causes market failure drives down the price of music across the board.  And how we can turn the tables on these guys.

For more on the scammy scammy world of online advertising read article referenced in the video

http://www.bloomberg.com/features/2015-click-fraud/

 (I posted this on my facebook page 6 months ago. It continues to get shared so I’m updating and posting it here.)

It amuses me to no end when people suggest that artists can make up for recorded music revenues with live music revenues. These are people who obviously know little about the live music business. I’m sure the top 1% of touring artists can.  But for most middle tier bands this is not a reality.  The main reason lower level artists tour is that it is the most reliable way to stimulate sales of recordings!  That’s what actually supports the middle class artist.

But there are other issues to be considered before comparing live revenues and recorded music revenues.

First of all: recorded music revenues are largely “net” while live music revenues are “gross.”  You can’t equate revenues before expenses  with revenues after expenses. Apples and oranges (*ahem* NY Times Magazine).  D’oh!

Sure while most midlevel artists (like my bands)  will have about two dozen  top markets where they play for 500-1000 people a night. And we strategically place those on a weekends.  And yes you can make $500-$800 per band member on shows like these. Ultimately you have to consider that these are just a small percentage of the shows that a mid level artist plays each year.

The other 80-90% of shows occur in lower population secondary and tertiary markets Sunday through Thursday. These shows naturally have much lower attendance and challenging cost structures  So even a band like my own with multiple radio hits that  does 600 paid  in Boston, 800 paid  Washington DC and 1000 in San Francisco has totally different economics on the other 80-90% of shows that make us a full time band.  No offense but places like Wichita KS and Syracuse NY?  200 on a Monday night in a rock club is actually pretty respectable.  Don’t believe me?  Just look at pollstar.com. Check data for club capacities for your favorite midlevel band.  Or pay for an account and you can see the actual ticket sales.

I’m right.  Trust me.

Sure we could skip these lesser markets and keep going back to our top 25 markets, but eventually you saturate and kill the golden goose.   Play in NY four times a year and suddenly you’re drawing 1/3 attendance. Playing in NY  Every 12-18 months maximizes attendance.   So really bands like mine have two choices.  Play only part time (like Camper Van Beethoven and have other jobs)  or play secondary, tertiary and break even foreign markets where you eek out minimum wage the other 80-90% of the year.  Why?  To sell albums, generate airplay and sometimes a sync licenses. Cause those artist royalties, mechanical royalties, public performance royalties are what is really supporting the band.

Drill down further. 

So lets say your average middle tier band play 125 north american shows a year (That’s about saturation after that you start cannibalizing ticket sales from nearby cities).  Forget about those top 25 markets. We know those are decent shows.  What do the other 100 shows really look like? What do those Sunday through Thursday small market shows look like?  Let’s assume an average attendance of 200 at those other shows.

Since most of the “T-shirts and Touring” journalists are too fucking lazy to pick up a calculator and do the math I’ll do it for them.   Very important fact to remember:  my wife is a concert promoter and she books about 300 shows a year. And these are mostly middle tier artists!  Our house is a concert promotion facility. She is constantly in touch with other concert promoters, bands, managers and agents across North America.  We are awash in contracts and settlement sheets.  We know what most middle tier bands do in ticket sales Sunday -Thursday.  We know what most club concert deals look like.  I assure you that few music industry “experts” are this familiar with the day to day data. 

In the relatively fair North American market ( assume it’s worse everywhere else especially in UK).
ON AVERAGE
Buy ticket: $22-$30+taxes Ticket face value $20
Ticket Charge $2-$10 bucks 50% to venue/ 50% to ticketing agency 0% to artist.
$20 Face Value
$8 (40%) goes to venue (rent/security/staff/pa/lighting/promoter profit)
$12 (60%) to artist. But this is artist gross!
Then artist pays.
$1.20 (10% of 60%) to agent
$1.80 (15%of 60%) to manager
$1.20 (non-resident state withholding tax average 10%)(Grrrrrrr… total government rent-seeking activity).
$7.80 (39%) adjusted gross to artist on every ticket.
Then the artist pays crew, transportation, hotels, fuel, meals, insurance etc
Let’s look and see how that works.
Take moderately popular middle class touring band. Bare bones. 4 band members and two crew. 200 paid on a monday night in Tulsa OK. $20 face value on the ticket.
Artist adjusted gross $1560
Typical daily expenses.
$300 2 crew salaries (low ball!)
$150 van/trailer rental or depreciation (300 miles a day) + insurance
$90 fuel
$450 hotels (two star or lower)
$150 meals or per diems
$100 amortize misc/overhead (supplies, accounting costs, tax filings in 40-50 states, repairs, storage, rehearsal space etc etc).
$210 amortize day off /travel days (6 days on 1 day off)
$1,450 approximate daily expense.
Each band member (4) makes $27.50 before tax. or 0.7% of face value of each ticket.
Sure the band members might make $500-$800 bucks a show in their best markets on a friday or saturday night. But if you are very lucky that’s 25 shows a year.
The other hundred shows a year look like this.

That’s why you see stories like this:

THY ART IS MURDER Vocalist Quits Over Finances: "I Can't Live Like This Anymore"

And don’t tell me stupid shit like this (these are actually taken from Facebook comments:

1. Get a $1500 used van.  Yeah what happens when it breaks down in Bend OR?   What’s that gonna cost you to get out of that?
2. Play 7 nights a week. Uh Every notice the space on map between Kansas City and Denver?  Or Bozeman Montana and Fargo ND? Voices don’t work 21 nights in a row.   Drivers fall asleep behind the wheel and everyone dies.
3. Sell more merch.  Most bands do $3 dollars a head in merch. Anybody who tells you anything different is bad at math or lying.  If it’s t-shirts 20-35% of that goes to club.  Then you you have to pay for the cost of making the shirts.  Then if you have a dumb design or color (fuchsia  is not in this year!) you wipe out your entire profit.   The only place to reliably make money on merch IS BY SELLING YOUR CDS AT SHOWS. RECORDED MUSIC!!!
4. Get a corporate sponsor.   Yep that’s easy to do when you sell thousands of concert tickets a night and millions of CDs.  Not so much for middle tier of bands. Forget it if you are playing any music remotely controversial.
5. Play more mainstream music.   Sure let’s all be as mainstream as fucking possible. That’s what made American rock and roll so great, being as mainstream as possible to maximize popularity.
6. But <insert name> went from playing midsize clubs to arenas. Sure this happens. Just like every once in a while someone walks out of the casino $50,000 richer. But on average and over the long term most don’t. They walk out poorer. Most mid tier artists will not be playing arenas next year. 
7. <insert  fake music business expert bullshit here> submit your own. 

Face it.  Recorded music sales support the bulk of touring activity for anything that isn’t mainstream crap.

The great artist Tish Hinojosa wrote a must-read opinion piece for her home town paper, the Austin American-Statesman, about the realities of gigging in a “no cover”/”tip jar” reality that is all too common at live music venues across the country.

In her post “Austin venues, patrons can do more to pay musicians fairly,” Tish lays bare the ugly truth that we experience every day–wage stagnation for musicians produces the “you’re lucky to have a job” mentality with many venues:

I am finding that even Austin’s best-known and talented support — aka “side” — musicians and singer-songwriters are playing for peanuts, meaning, for the same or less than we were earning in the 1980s. In the meantime, the cost of living in this city has grown tremendously — and so has the city’s pocketbook. That Austin’s reliable, hard-working, talented and diligent musicians can’t even afford to live in the city is a shame, especially considering that they are the backbone of the “Live Music Capitol Of The World.”

Too many Austin venues are taking advantage of good musicians who just need to work and are offering those artists “this or nothing deals” like: “Do you know how many of you would be happy just to say they play here?”

Tish’s post links to another Statesman story about the findings of the 2015 Austin Music Census which confirmed Tish’s concerns about the music community.  The City of Austin commissioned the Austin Music Census, the only study of its kind, that surveyed 4,000 members of the Austin music community and identified the “no cover” issue as a major problem that needs to be addressed.

In her must-read post, Tish gives the human side from an artist’s perspective on the ground.  Wherever you live, we believe that you’ve probably experienced the exact same take-it-or-leave-it deals that amount to “pay to play” enforced the old fashioned way–by intimidation.

Thanks to Tish for speaking out.