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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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