Brooklyn Musician suing Devils

[DevilinLA]

The way ASCAP works is a venue like Prudential Center would pay a licensing fee to ASCAP that allows them to play music from the entire library of songs registered thru ASCAP. The musicians would then receive a royalty for every time their song is played, ASCAP cutting them a cheque several times a year. I think this guy seems to be upset that his song was used in the video that was played what, 41 times before Devils games?

I'm not sure if ASCAP failed to pay a royalty due to it's use in video media??

$30,000,000 seems pretty silly... i'm sure the devils could hook him up with some compensation equivalent to what Ozzy gets from the Devils everytime they play crazy train...

http://www.ascap.com/members/payment/royalties.aspx

ASCAP handles PERFORMANCE Royalties only. Its a PRO - Performance Right Society.

It does not handle Synch Rights - those are individually negotiated between publisher and user unless done under a Work For Hire contract in which case the contractor owns the rights from their on.

Musicians don't always receive royalties - WRITERS and PUBLISHERs receive royalties - sometimes this is different.

[DevilinLA]

Oh what to do do when the INTERNET won't always give you the stats you need to prove to everyone how smart you are?

I guess get accusatory - this from the same guy who uses stats and figures to back up everything he says?

I thought I was speaking your language. Let me friendly tutor you then....

Okay, agreed. I don't know why a citation from 1709 is needed, I guess to puff up your credentials.

The basis of Copyright Law is founded upon this principle law adapted from the British. The Law was written to stimulate intellectual creativity in a stagnant environment. It was a reaction to the creative control loss from the useage of the printing press (i.e. who owns the rights?). This forms the underlying principle of Publisher vs. Creator/Author

These sound like two things that aren't related. A musician owns the rights to the music. If the music is illegally used where the music would normally be licensed, that musician has the right to recompense for his or her work. What does illegal downloading have to do with this?

A Musician owns nothing. The writer owns the rights to the music unless he/she enters a publishing deal with a publisher for a 50/50 share. Via a contract the Record Company (if there is one) owns the SR Rights (Sound Recording Rights) which are the actual rights to that sound recording of the song. If its not an original the record company agrees to pay a Copyright rate for mechanical royalties on the song for the use. (to publisher & Writer). The artist, in turn, receives an Artist Royalty Rate which is a percentage of sales either CD or downloaded. This percentage can be anywhere from 8 - 20% (big artist) but fluctuates depending at what cost the album or song sold at (MSRP or lower). The artist receives an advance to make the album (chargebacks at what it costs to record album) and all royalties are paid back on the advance before the artist makes individual profit.

Who says the industry needs the massive record companies? There's a huge shift in the way that people are consuming music these days, and no one knows what the fallout is going to be.

Agreed. But at present the quality level is diluted and a competition for consumer dollars is strong as no one is actually paying for music. The future will indeed be interesting.

And yeah, true musicians will make music for the love of the music, I have no doubt about that. Whether or not it's as good, or the production values are the same, or there's as many people doing it, is another matter.

True musicians study their craft to master it. It takes decades of intense study with hours upon hours of practicing each day. Usually this is predicated through a high level of training such as music school or intense private study. My example was not in reference to a "lucky hit rock song" with the stereotypical party-rock star lifestyle image - which is so popular today (And most groups gone the next day I might add). We can argue about the definition of professional musician all day long - but mine centers around those working in the industry for 30 - 40 years, such as professional writers/producers (David Foster, etc.). No, these people need time to write and escalate their craft - working at Subway during the day prohibits this. For the Rock Band folk - maybe not so much - for trained writers its very different. I would imagine you must be a musician to make this blanket statement?

This is just totally untrue and again, is completely backwards. I can download any music in whatever genre I like from the comfort of my own home. I don't have to buy an album only hearing one song on the radio, I can sample every song thanks to amazon.

Absolutely. How many folks here - or in the world for that matter - actually PURCHASE ALL OF THEIR MUSIC. That's the problem. The old argument was having to buy the whole album for one song. ITunes has made that a thing of the past. I hope this changes but the majority (not all) of the upcoming generations seem to have little regard for paying for music.

so suing for $30 million dollars makes sense.

No it doesn't. Some of the comments in this thread seem not to understand all the aspects of the issue. Much like contract negotiation you shoot for the moon and get what you get I'd presume.

How do you know this? That seems to be contradicted by this article here:

http://www.sbnation.com/nhl/2011/8/22/2377647/new-jersey-devils-lawsuit-black-water-rising-band

We might see things grow more diverse? The marketplace is incredibly diverse! People's ipods are more diverse than all but the most devoted audiophile's collection would have been 15 years ago. I can't tell if you're an industry insider or a former musician (or both or neither), but your logic strikes me as backwards on most of this issue. The industry is changing - we'll see what happens in ten years.

Agreed its changing. IF you think music is diverse turn on the radio and tell me how much reggae, Jazz, Classical, Blues, Progressive Rock, Folk, Zydeco you hear. As it is the Grammy's tried to downsize the number of categories per year as well. Things are shrinking and while that music IS OUT THERE. It is increasingly more difficult to make a career (not multi-million dollar - but liveable) career in anything that doesn't start with "DJ" or "Lil'" or having 36DD's with botty shorts. Unless you are willing to pop out of an egg onstage. In which case I would argue that the theatrics of performance have grown and the musicality has again diminished. Evidence of this can be seen purely with the number of dancers on stage in a performance vs. number of musicians.

You have solid thinking on most issues - but I posted purely to add some info here taht I didn't see posted in th thread. I don't know everything - but I work inthe industry and have for many years and I hate when things are misrepresented.

Edited August 22, 2011 by DevilinLA

[ice dog]

ASCAP handles PERFORMANCE Royalties only. Its a PRO - Performance Right Society.

It does not handle Synch Rights - those are individually negotiated between publisher and user unless done under a Work For Hire contract in which case the contractor owns the rights from their on.

Musicians don't always receive royalties - WRITERS and PUBLISHERs receive royalties - sometimes this is different.

http://www.ascap.com/licensing/licensingfaq.aspx

"ASCAP gives you a license to entertain your customers, guests and employees with the world's largest musical repertory. One of the greatest advantages of the ASCAP license is that it gives you the right to perform ANY or ALL of the millions of the musical works in our repertory. Whether your music is live, broadcast, transmitted or played via CD's or videos, your ASCAP license covers your performances. And with one license fee, ASCAP saves you the time, expense, and burden of contacting thousands of copyright owners."

ok... CD music was edited and syncd into the video... hmmm... is this the issue?

$30,000,000... is just frivolous. He'll probably lose, his song will no longer be played at the games, and the Devils fans, the one group of people he could have marketed his merchandise and live performances too will effectively be alienated and think he's a tool.

[Triumph]

Oh what to do do when the INTERNET won't always give you the stats you need to prove to everyone how smart you are?

I guess get accusatory - this from the same guy who uses stats and figures to back up everything he says?

I thought I was speaking your language. Let me friendly tutor you then....

You have solid thinking on most issues - but I posted purely to add some info here taht I didn't see posted in th thread. I don't know everything - but I work inthe industry and have for many years and I hate when things are misrepresented.

You're right that I was glib with regard to the ownership of music, and clearly you know far more about it than I do - the question is, is that the way that things should be done, or is that just how the industry grew up?

But you say this:

"IF you think music is diverse turn on the radio and tell me how much reggae, Jazz, Classical, Blues, Progressive Rock, Folk, Zydeco you hear. As it is the Grammy's tried to downsize the number of categories per year as well."

Who listens to the radio anymore? Who cares about the Grammys anymore? Radio has gone after vanishingly small dollars by shrinking playlists and genres. But those people who used to be served by terrestrial radio haven't stopped consuming music. Radio isn't diverse because people who listen to those types of music you list go elsewhere - the barrier to owning and consuming the music they enjoy is much smaller. And no, I'm not talking about free downloads.

Something like jazz has a proud tradition and a shrinking listener base, and takes incredible skill to play well. I would love to live in a world where jazz musicians are well-supported and able to pursue their craft. But I don't listen to very much jazz at all. It's unfortunate, but it's not these people's right to have a career in music if there aren't enough people who consume it. I don't think that free downloads are the problem here.

[DevilinLA]

You're right that I was glib with regard to the ownership of music, and clearly you know far more about it than I do - the question is, is that the way that things should be done, or is that just how the industry grew up?

But you say this:

"IF you think music is diverse turn on the radio and tell me how much reggae, Jazz, Classical, Blues, Progressive Rock, Folk, Zydeco you hear. As it is the Grammy's tried to downsize the number of categories per year as well."

Who listens to the radio anymore? Who cares about the Grammys anymore? Radio has gone after vanishingly small dollars by shrinking playlists and genres. But those people who used to be served by terrestrial radio haven't stopped consuming music. Radio isn't diverse because people who listen to those types of music you list go elsewhere - the barrier to owning and consuming the music they enjoy is much smaller. And no, I'm not talking about free downloads.

Something like jazz has a proud tradition and a shrinking listener base, and takes incredible skill to play well. I would love to live in a world where jazz musicians are well-supported and able to pursue their craft. But I don't listen to very much jazz at all. It's unfortunate, but it's not these people's right to have a career in music if there aren't enough people who consume it. I don't think that free downloads are the problem here.

Let me first say I applaud your honesty on the issue.

I think much of this goes back to your statement about "needing" record companies that I have been thinking much about.

Although I don't think they are "needed" what they have done in the past is provide some key things:

1.) Distribution (through the big 5 Distributors) : Although this may be changing with the lack of brick-and-mortar places that carry CD's (Although Walmart and Target still remain) this is becoming less important.

2.)Radio Promotion Dollars: The ability of RC's to circumvent "Payolla" by putting their promotion dollar through independent promoters who, in turn, fuel radio airplay numbers by working with sponsors and Program Directors at Radio Stations (terrestrial or satellite).

3.) Marketing Dollars: Getting the artists face on everything and on every TV op.

These things require $ that purely CDBaby, Amazon, or any other on-line marketing scheme cannot provide. The problem has become getting the music to enough consumers that it actually turns into $$$ (because free downloads don't).

Jazz is tough because as America's 1st true original artform it is becoming somewhat subsidized by the government - but not enough to employ. Its a tough issue I just wish that people would be able to access and be introduced to more diverse forms of music - and SUPPORT what they enjoy with REAL Dollars. I also agree that ALL AWARD shows are just "ass kissing" festivals put together by record company insiders to promote more dying sales.

Its a tough situation. I only hope we can all as a society get culturally educated enough to contribute and support our own culture rather than cannibalizing it.

[DevilinLA]

http://www.ascap.com/licensing/licensingfaq.aspx

"ASCAP gives you a license to entertain your customers, guests and employees with the world's largest musical repertory. One of the greatest advantages of the ASCAP license is that it gives you the right to perform ANY or ALL of the millions of the musical works in our repertory. Whether your music is live, broadcast, transmitted or played via CD's or videos, your ASCAP license covers your performances. And with one license fee, ASCAP saves you the time, expense, and burden of contacting thousands of copyright owners."

ok... CD music was edited and syncd into the video... hmmm... is this the issue?

$30,000,000... is just frivolous. He'll probably lose, his song will no longer be played at the games, and the Devils fans, the one group of people he could have marketed his merchandise and live performances too will effectively be alienated and think he's a tool.

Unfortunately, I believe you are misinterpreting the info quoted here.

This bolded section covers a "performance broadcast" - not the ability to take a song and "SYNCH" it with video. If that video is broadcasted - ASCAP tracks $$$. The ability to use it in the first place - that's a separate license a SYNCHRONIZATION LICENSE which would be negotiated with the video owner. This happens with movies and TV every day and is called Music Licensing and requires an agree with the publisher/writer (but not the performer).

Again, I'm not entirely sure of the song context as I don't live in NJ. Perhaps some of the NJ locals can tell me if this song is played along with hockey video as I'm not sure....

Edited August 22, 2011 by DevilinLA

[Onddeck]

Absolutely its out there. There is A LOT of good music out there.

The problem is that the current state of the Music Market (illegal downloading) can't support it - and those musicians will certainly have a nightmare of a time developing a viable career from it.

There were also problems 15 years ago in music diversity but the essential elements that changed the game were:

1. File Compression

2. Internet Download Speed and Consumer Cost

3. Personal Computer Cost and Hard Drive Space

4. Mobile MP3 devices

The argument that - "it helped lesser artist get heard and evened the playing field" - I disagree with. It took away the gatekeepers that determined if the music quality was high enough to get supported by A&R dollars. As quality fell the marketplace became saturated with mediocre music. Very few of these CD BABY artist can support a career without being picked up by major label dollars. With a lot less consumer dollars to go after - the record companies stuck to following trends in money making by jumping on bandwagons (H. Montana, Boy Bands, Pop Starts, etc.)

These things changed the way consumers access music and as a result the way music makes $$$.

I was just disagreeing to your statement of how music today is mostly crap... which isnt true. the music the radio tells us to listen to is garbage, yes. but there are so many great artists out there right now

[DevilinLA]

I was just disagreeing to your statement of how music today is mostly crap... which isnt true. the music the radio tells us to listen to is garbage, yes. but there are so many great artists out there right now

OK, well, its all opinion.

My point was that "the music that gets the most promotion and reaches the most audiences" - is crap.

Great music will always exist - its just harder to make a living doing it for the average musician/composer.

[AlienDev]

Well - let's get Hells Bells back right now.

IMHO the Devils intro was completely missing without it. (It was probably bad karma to remove it too...)

[RowdyFan42]

I guess these guys graduated from the Lars Ulrich School Of Suing The Sh!t Out Of Everyone Who Gives Your Crappy Music Free Publicity.

"T-shirts, GOOD! Napster, BAD!"

[DaneykoIsGod]

How many folks here - or in the world for that matter - actually PURCHASE ALL OF THEIR MUSIC.

I do!

Quick, PK or MF, I need a "patting myself on the back" smiley.

"T-shirts, GOOD! Napster, BAD!"

For what it's worth, I like Neil Fallon's take:

Q: When we last talked to you a couple of years ago this was a hot topic, and I forget if it was you or another artist that said when a technological advance comes along, it’s just kind of like a flat tax, it just affects everyone across the board at the same percentage, and so you can’t really get too bent out of shape as an artist when everyone else is in that same boat with you.

A: It does piss me off when I hear people lamenting the fact that, oh now bands have to go out and play music to make a living. Like fvck off! That’s the whole point. I mean records… If you consider the entire history of culture and then music, records are still a brand new technology. Live music has been around for tens of thousands of years. And that should be the joy of it, performing your music for other people. And to act as if this is your cross to bear because of file sharing is, I think, reprehensible.

So we’ve been kind of insulated by that, because we’ve always been a touring band, and it’s not as if we saw our ticket sales plummet when Napster came along.

Q: Did you see it go the other way? Did ticket sales increase?

A: I think so. It opened… It made it easy for people to find out about the band. If we had been a platinum selling band I’m sure it would have affected us terribly but we’re, like many bands, we’re only going to appeal to so many people. It used to be that the independent record shop was your only oracle for that kind of stuff. And now you can have your independent record shop right there on your desk.

[njdevil26]

Since when is it a good idea to shoot your mouth off on the internet when you're involved in a lawsuit... this guy should shut up and get the hell of Facebook for a little while. He's making himself look worse and worse... this is an attempt for a dishonest payday and publicity.

At the same time... the Devils handled this disgustingly IF the artist (songs suck by the way) is telling the truth... and that doesn't surprise me that the team would blow this guy off and not give a crap as usual.

[HellOnICE]

"Take your napsack HUHH HUHHHHHH" - Lars Ulrich

[Section21]

There is an update to the SB Nation article that has updates from ascap. They agree the suit is without merit unless the devils are using the video in a television advertisement.

http://www.sbnation.com/nhl/2011/8/22/2377883/new-jersey-devils-sued-band-black-water-rising-lawsuit

[DevilinLA]

There is an update to the SB Nation article that has updates from ascap. They agree the suit is without merit unless the devils are using the video in a television advertisement.

http://www.sbnation.com/nhl/2011/8/22/2377883/new-jersey-devils-sued-band-black-water-rising-lawsuit

I know he's speaking on behalf of ASACP but He's wrong.

In fact, I called a buddy of mine at the ASCAP LA office today out of curiosity to discuss this.

If its synched with video - and not played separately with the video - its a Synch License. Period.

NJ probably thought it was covered under their blanket license to broadcast. Apparently this has been an issue before, something they are trying to rectify with more clear-cut distinction, but as it stands by the definition of a synch license to a Music Publisher its true.

If its played over the PA while the video is going - thats different.

They have a case - not a $10M case - but a case. They should have taken the $25,000 license and ran with it.

If I make a movie, synch "Running WIth the Devil" with the opening credits (or any part for that matter) and play it in Disneyland Theme Park on a big screen - does the DL Blanket PArk License cover it? I don't think so.

If this was the case no one would ever pay a synch license again and just broadcast there "synched materials" in blanket-license ASCAP or BMI affiliated venues.

The band's biggest mistake is making this a public through amateur outlets like FB and such. Let the lawyers handle it. ITs what they do.

Also for the record, the band has no say whatsoever in "permission" to use a song - that's up to the publisher to agree on the fee for the Synch License - unless its a "First Use" situation.

What I am REALLY curious about - and I hope some NJ'ers can comment on this - is I haven't seen any video (montage or otherwise) that the song is synched with to justify the need for a Synch License? Do they play an actual video? Is it synched or is it just warm-up music like the other stuff?

Could someone clarify?

Edited August 23, 2011 by DevilinLA

[American_Psycho]

"Musician."

[lucifer91]

Devilinla...go to about the 55 second mark...you probably cant see the video but its devils fans rejoicing more or less

[DevilinLA]

Devilinla...go to about the 55 second mark...you probably cant see the video but its devils fans rejoicing more or less

Thanks.

I saw this and it just looks like the usual simple swirling logos and fireworks stuff on the jumbotron but no actual footage or something.

If thats the case then its clearly not a Synch issue - but I'm not sure what is actually happening.

Is that accurate?

Edited August 24, 2011 by DevilinLA

[Satans Hockey]

Thanks.

I saw this and it just looks like the usual simple swirling logos and fireworks stuff on the jumbotron but no actual footage or something.

If thats the case then its clearly not a Synch issue - but I'm not sure what is actually happening.

Is that accurate?

Heres the best video I could find, skip to 40 seconds.

just my 2 cents, it was a sh!tty video and an even worse song. I'll be happy to never have to see or here either ever again.

[DevilinLA]

Heres the best video I could find, skip to 40 seconds.

just my 2 cents, it was a sh!tty video and an even worse song. I'll be happy to never have to see or here either ever again.

Thanks.

That is DEFINITELY what I would consider a synched video.

Synch license no doubt.

I'm curious what sports teams are doing with these types of things now as more and more teams are doing this. I guess hope that no publishers complain? Or maybe they actually did think that this was covered under their blanket ASCAP?

[oconnellrules]

god that song sucks

[mouse]

Even if it should be a different license, that seems like an honest mistake, probably made worse by the wording in ASCAP's contract and the fact that at least some people in ASCAP still think the synch license isn't required. The band admits the Devils offered them some money, which seems fair, since they claimed to be excited for 41 games, got some publicity, and the team made what appears to be an honest mistake. Suing for 30 million instead of taking what the Devils offered is a BS cash grab.