Sookman Deflates Pending Lists Claim to Vilify Artists

Oh dear. I hadn’t seen this post of Barry’s before he retweeted it. Um, how do I put this politely? Barry, you messed up.

Prof. Geist tries to taint the recording industry as blatant copyright infringers, without ever delving into the industry wide accepted custom for clearing mechanical rights. The pending list system, which has been around for decades, represents an agreed upon industry wide consensus that songwriters, music publishers (who represent songwriters) and the recording industry use and rely on to ensure that music gets released and to the market efficiently and the proper copyright owners get compensated.

But Barry, the recording industry are blatant copyright infringers. Or at least they sure give that impression. Let’s see:

Cher sues UMG over royalties

JoJo Sues Record Label

TIMBALAND SUES RECORD LABEL

Courtney Love Sues Record Label

Allman Brothers Band sues record company for $13M

Eminem Sues Record Label Over iTunes Royalties

Beatles to sue record label

Eurovision star sues record label over contract dispute

Smashing Pumpkins sue record label over use of songs in Pepsi promotional deals

Travis Tritt sues record label

I think that by this point you get the idea. Barry is trying to make his clients out as kindly, well meaning toffs (lords) – like Frodo in J.R.R.Tolkien’s Lord of the Rings, when instead they seem to be more like Anthony Soprano.

As to the ‘Mechanical Licensing Agreement‘ that Barry likes so much – think about this. Your major source of money says to you, hey, it would be real convenient to do things this way, using the compulsory licensing… Don’t you hear Tony’s voice? Are the artists really in a position to object?

Barry states that the amount is only $58 million. Think. Only $58 million. This of course assumes that his clients are telling him the truth, and that there aren’t any interest payments due, and that everything is accounted correctly. And it would never occur to Barry to question them, after all, to him, they are the good meaning toff’s illustrated so well by Tolkien. In a Fairy Tale. They’d never do anything like slip four extra words into the The Satellite Home Viewer Improvement Act of 1999 would they? After all, they keep telling us that they have the best interests of the artists in mind. So they wouldn’t have done anything like that, would they? So what if the artists assert their copyright termination rights. The companies support the artists – they should be happy! Not. An article on Law.com covered this very nicely, one of the lawyers interviewed represents the Eagles, Journey, and John Dozier Jr.’s favourite artist, Barbara Streisand.

But they did. They did just that. From Wired:

The record labels tried to defuse this bomb in 1999 by sneaking an amendment to the Copyright Act through the House of Representatives that would add sound recordings to the Act’s list of copyrights that were considered “works for hire,” which would make them exceptions to the grant termination clause. According to one source close to the situation, the labels told Congress that the Copyright Act already covered sound recordings as exceptions because albums of music are “compilations” — but that “just to be absolutely clear, [the labels] wanted to put it in so nobody can debate it.”

After musicians, including Carly Simon, reacted negatively, the amendment was withdrawn amid public outcry leaving record labels with precisely two options for fending off notices of termination, neither of which looks promising. The first is to continue to claim that albums are compilations, which doesn’t pass the common-sense test (compilations include songs from different artists), and probably won’t pass legal muster either.

So the friendly, kindly toff’s did try to slip something in, and got caught with their hands in the till. Figuratively. But it was a close run thing.

If you can only read one of the articles, the Wired one has a really good explanation of how the Recording Industry tried to pull a Tony Soprano on the artists. And it was a damned close thing – if it wasn’t for someone catching it, it might have slipped through.

And the labels wonder why the artists don’t trust them. You think they’d get the picture by now. No, wait, they do know how much the artists don’t trust them. And don’t care, as long as they get to keep raking in the shekels.

Disclosure – I spend a lot of time with musicians. If you are in a pub listening to musician shop talk, the shear cynicism that pervades the musicians side of the argument will shock you. I’m not saying that musicians are saints. They aren’t. But the treatment they get from the labels is often little better than blacks got after the Civil War. Free often means free to starve. Me, I prefer musicians. They create something. The labels just package it, and try to take all the credit and money they can, leaving only enough for the artist to pay rent, if that.

Wayne Borean

Monday January 18, 2009

PS: Barry, why don’t you return my calls?

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