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Bottom of the Pops

 

It’s remarkable to see scum get even scummier. Sometimes we paint certain players as evil, and that’s often grossly unfair. Sometimes “I’m just doing my job” is a copout, but sometimes it’s true. Things are almost never as black and white as we in the bitch-sheet business make them out to be.

But sometimes they are. Case in point. You might remember that in 2005 then-Attorney General Eliot Spitzer nailed a bunch of radio stations and record companies for indulging in payola, the illegal practice of exchanging money and gifts in return for guaranteed airplay of the record companies’ “product.”

Millions of dollars in fines have been paid, and there was one additional piece of fallout: An airplay agreement between Big Radio and a trade association of independent record labels. The indie labels don’t have the scratch to buy airplay, but somehow had enough juice to get a seat at the table while the likes of CBS and Clear Channel were getting spanked. Much of this indie-label/Big Radio agreement strikes me as unenforceable, feel-good hooey—a list of “rules of engagement” for how the corporate-radio world will behave in the future. But one provision had some teeth: a promise by Big Radio to devote airtime to artists on independent labels.

This part of the agreement looked a little sketchy, referring to 8,500 half-hour “blocks” of indie music played on corporate radio stations, but it was better than nothing. The agreement says the blocks can run anytime between 6 AM and midnight. And you know what that means. Seems to me that having an indie-music show segregated and dumped onto a Sunday morning is tokenism at best. One would think these stations’ genius “music directors” might find a way to stick something by Wilco or the Velmas in the middle of a typical set by Steve Miller, Freakin’ Zeppelin, Freakin’ Skynyrd (man), and Steve Miller, and make it work. The rest of us could do it, and we’re not even “professionals.” But, whatever.

And then Clear Channel tried to fastball one by. Last week Clear Channel stations began their “initiative” to hold up their end of this bargain, by asking indie bands and labels to submit music to individual stations for consideration. Again, the genius “music directors” can’t be bothered to seek out indie music to play. Let’s have bands submit! Like a big contest! It’ll be fun!

And the kicker: By submitting, bands have to click-through a “license agreement” in which they agree to waive all of their rights to the royalty payments. Here’s the relevant part:

1. License. You grant to Clear Channel the royalty-free non-exclusive right and license, in perpetuity (unless terminated earlier by You or Clear Channel as set forth below), to use, copy, modify, adapt, translate, publicly perform, digitally perform, publicly display and distribute any sound recordings, compositions, pictures, videos, song lyrics, still images, Your name, picture, portrait, photograph, band information data, graphics, trademarks, text, information, screen names, profiles, newsletters, gig listings, playlists, podcasts, blogs, broadcasts, messages, software, XML, RSS and links and/or other content (collectively, the “Content”) submitted by You to us on this website (the “Site”), including portions, composites, likenesses or distortions or alterations of same, in whole and in part, and to prepare derivative works of, or incorporate into other works, the Content, in connection with the preparation transmission, operation, production and advertising of and for (all) media and methods checked by you above (check all that are applicable).

Whoa. So, for the “privilege” of getting played at 7 AM on a Sunday on your local Clear Channel station, you agree that you won’t get the same royalty payments as, oh, Steve Miller, etc. In fact, you agree that you won’t get any royalty payments at all!

And what happens if hell freezes over, and your indie recording becomes a hit, and the genius musical directors at these mind-numbing cabals of banality stick you in rotation with “Cocaine,” “Sweet Home Alabama,” and “Hot Blooded”? Oops! Adios, simoleans!

The strange thing here is that all of these cash-cow stations already pay blanket licenses to the various performing-rights organizations that disburse royalties to artists and songwriters, or have sleazed themselves exemptions out of paying them, like in the sleight-of-hand exemption Big Radio got from Congress on HD streaming royalties. So it’s really hard to see what Clear Channel gains here by treating indie artists so profoundly different from the handful of major-label artists played repeatedly, day after day. Except, perhaps, for the sublime pleasure in screwing somebody, anybody.

And what’s truly disgusting is that this is all in the midst of Clear Channel’s fulfilling obligations that arose from having been caught breaking the law. To paraphrase the fine folks at the Future of Music Coalition, does this sound like an act of contrition to you?

—Paul C. Rapp

 

Paul Rapp is an intellectual-property lawyer with offices in Albany and Housatonic, Mass. He teaches art-and-entertainment law at Albany Law School, and regularly appears as part of the Copyright Forum on WAMC’s Vox Pop. Contact info can be found at www.paul rapp.com. Comments about this article can be posted at rapponthis .blogspot.com.


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