Today’s post is by FMC intern Peter Haugen, who has a penetrating mind for all manner of speculative musical phenomenon!

It’s Friday! Can’t think of a better time to speculate on the future of… you guessed it.

While flying cars and jetpacks have yet to become a practical reality (but let’s not give up hope!), a recent YouTube video serves as a reminder that, musically speaking, the future is closer than we think. If you haven’t seen this video yet, try listening to the first two minutes with your eyes closed.

OK, from a sonic standpoint there is nothing particularly revolutionary about it: a piano with some violin accompaniment. Then you open your eyes to see there is no one sitting behind the piano! Duped! Of course, player pianos date back to the late 19th century, but no one would ever confuse a piano roll with actual playing by Rachmaninoff. That is, until Zenph Sound Innovations came along and found a technological way to mimic the performance dynamics of this late maestro.

You gotta wonder far can this technology be taken.

According to WIRED’s Eliot Van Buskirk, as far as our musical imagination can go. In his article “Virtual Musicians, Real Performances: How Artificial Intelligence Will Change Music,” Buskirk imagines one possible development might be a computer that could reproduce the compositional “style” of any given tunesmith. Not just the notes, mind you, but the unique technique and approach that made a particular composer stand out from the pack.

Time will tell whether or not this is possible — it seems much more sophisticated than, say, a computer beating someone at chess. Still, if nothing else, the concept alone gets the mind racing. Imagine the jam sessions you could assemble in the privacy of your basement: Jimi Hendrix with John Coltrane backed by John Bonham with arrangements by Béla Bartók sounds perfectly awesome.

Yet as Buskirk points out, the legal implications of such a technology — especially from an intellectual property standpoint — are staggering. “If Zenph and other companies succeed in their quest to create virtual music personalities,” Buskirk states, “the market will likely create licensing mechanisms that allow a wide range of artists and labels to license their personalities to interactive music formats.”

License their “personalities?” Wow. Let’s take a quick moment to consider some (just some) of the ramifications. What happens, for instance, if you happen to be jamming in the garage with Lennon’s “personality” and together you create one of the great recordings of the decade? Do you share songwriting credit with your computer, or the Lennon estate? And if you get paid for said recording, how is the distribution of monies facilitated? Maybe you just swipe your credit card on the side of the monitor. Stranger still, could you form a band with the “personality” and hit the road? And if your musical “partners” really do retain the “personality” of the original artists, how can you avoid in-fighting with your digital band? Wouldn’t want to be the one that has to kick out John Bonham— even virtual John Bonham.

Of course, at this point all it is mere speculation. But for those of you (like myself) who remember the days of cassette tapes and boomboxes (and who are still completely blown away by the idea of a streaming music service), the fact that people are talking about these things on a serious level should make us realize that music has many possible futures, and some are already knocking at the door. Do we answer?

Intro by Michael Bracy, Policy Director, Future of Music Coalition

Image credit: Nancy Palmieri

Those who have followed FMC’s work over the past decade know that we’ve been strong supporters of establishing a public performance right for terrestrial radio. Why? Because compensating performing artists directly for the use of their work is simply the right thing to do. (Check out our Public Performance Right fact sheet to learn more.)

FMC has been consistent on this issue since the beginning: we want to see a public performance right that establishes a level playing field with digital radio services that already pay this right (satellite radio, webcasting, cable radio services, etc.), and we want it established in a way that allows community radio stations and smaller, independent commercial broadcasters to flourish.

We know a public performance right won’t magically fix everything that’s broken with broadcasting. To do that, we need comprehensive reform. This means reigning in consolidation, facilitating local ownership, expanding and protecting community radio and ending structural payola. And, of course, paying artists for the use of their work.

On March 3, I spent a couple of hours on Capitol Hill with one of our favorite artists, the wonderful and talented Erin McKeown. As luck had it, we were able to attend a news conference hosted by the MusicFIRST Coalition that featured Dionne Warwick and top leaders from the civil rights community, all of whom endorsed legislation for a public performance right.

We thought it would be great if Erin could weigh in on how she views the issue as a working musician. Take it away, Erin!

—————————————————

Hey everybody. My name is Erin McKeown and I’m a musician. Like so many artists, I work hard at what I do, and am very lucky to have had my efforts rewarded in so many ways — from fan love to playing gigs across the country and even overseas. Yet the more I think about it, the more I realize that America is doing its performing musicians a tremendous disservice by not compensating them — at all! — when their music is played on terrestrial radio. A little thing called a public performance right would fix that.

A lot of people don’t know this is the deal. They might think that artists get paid when they hear a song on the radio. Well, the songwriters and publishers do, for the underlying composition. But the musicians who actually perform the notes on record don’t get anything. It’s a completely different story in just about every other country on Earth, where artists and songwriters (say, I’m both!) are compensated for the over-the-air broadcast of their work.

Even weirder is that here in America, there’s already a public performance right for digital plays. Meaning, webcasters like Pandora and tons of online stations already pay performing artists and copyright holders (usually the label, but it can be the artist, too). So does satellite radio and those non-video music stations on the high end of your cable dial. Which gets you thinking: why should traditional radio be off the hook when everyone else has to do the right thing and compensate artists?

Then there’s the fact that U.S. artists who get played on terrestrial radio in other countries aren’t able to collect the money owed to them for those spins. This is because we lack a “reciprocal right.” As a performer, I know all too well how resistant American commercial radio is to playing new or independent artists, no matter how popular they are. But this isn’t always the case overseas. I’m psyched that there are stations in other countries that play my stuff. I’m less psyched that they would like to pay me but can’t due to an absurd exemption here at home.

I now know I’m not alone in feeling this way. A couple of days ago, I was on Capitol Hill to learn more about current legislative efforts to pass a public performance right for terrestrial radio. I was very impressed by Dionne Warwick, and not just because she’s an amazing music legend. She had a really great way of showing how important this right is to everyday working artists. I was also moved by how Representative Conyers talked about the basic injustice of not paying people for their hard work. That should be something that’s pretty easy for everyone to grasp, but the big broadcasters don’t seem to get it. Or maybe they just don’t want to. Either way, it’s not fair to artists.

One thing that’s super-important to remember about the performance right: it would compensate artists directly for the use of their work. So when you hear the commercial broadcasters and their round-the-clock radio ads saying that it only benefits the big labels, it’s simply not true. The artists’ 50 percent goes straight to the artists — it doesn’t go through the label to be held against so-called “recoupable” debt. This is a pretty big deal, and one of the reasons I support the performance right.

Of course, at the end of the day, it’s about artists, who are workers just like everyone else. And people who make stuff that has value in a marketplace deserve to get paid for their work. Makes sense to me. How about you?

It’s hard to believe that its been eight years since FMC’s original survey on musicians and health insurance. That oft-cited study, published in 2002, showed that 44 percent of working musicians did not have insurance. One of the barriers, besides cost, was that the topic is difficult to wrap your mind around. To help demystify the issue, we created the Health Insurance Navigation Tool (HINT) — a free program that offers jargon-free information to musicians seeking to learn more about their health insurance options.

Fast-forward to 2010: health care is now a matter of serious debate across the country. FMC has advocated for reform, and we’re still very much committed to arming musicians with information so they can make smart choices.

But we also want to know if anything has changed since our initial report. Which is why we’ve relaunched the survey to learn:

• How many musicians are insured?



• Has the number increased or decreased over the last eight years?



• What are the factors that make it difficult for musicians to get insured?



• Do musicians know about the plans offered by some unions and professional organizations?

Taking the Pulse runs from March 1 through April 1, 2010, and assesses the level of health insurance among working musicians. It also asks key questions about artists’ access to coverage and their understanding of the current health insurance landscape.

If you’re a musician, songwriter, or composer, please take the 10 short minutes to answer these important questions. Remember, your responses are anonymous and confidential.

And help us spread the word! You can use this blurb in your blogs and newsletters:

Are you a musician or songwriter? Do you have health insurance? The nonprofit Future of Music Coalition is conducting an online survey during the month of March to assess how many musicians have health insurance. Click here to participate in this survey. http://www.surveymonkey.com/s/musicianshealthinsurance

Your answers are anonymous and confidential, and the survey should take about 10 minutes to complete. We urge you to participate so we can really understand the needs of our music community.

Here’s something you drop in Facebook and MySpace status updates:

Are you a musician or songwriter? Do you have health insurance? Future of Music Coalition wants to know. Take this short survey and tell them about it.

http://www.surveymonkey.com/s/musicianshealthinsurance

And here’s a 20-character message for Twitter —the perfect length for re-tweeting:

Are you a musician or songwriter? Do you have health insurance? Take this quick & important survey.

http://bit.ly/c7ZJZi

We’ll keep you in the loop on the results and our ongoing efforts to help musicians stay healthy.

Ah, South By Southwest. A whirlwind of live music, fascinating panels and tons of Tex-Mex. (We will not mention the booze. Oops, I guess we just did.)

For a decade, FMC has descended on not-so-sleepy Austin, Texas to participate in discussions about, well, the future of music, and hobnob with the incredible array of artists, managers, entrepreneurs, visionaries, media gurus, rabble-rousers and just about anyone else you can think of. Since we’re a musician-centric shop, you can usually find an FMC staffer playing a show or ten.

This year (March 17-21, 2010), we’ve got a ton of awesome stuff lined up. Our handy SXSW page has all the times, room numbers and details. Here are some highlights:

Social Networks and the Future for Musicians

FMC’s technologies director Brian Zisk joins Dave Allen (Pampelmoose, Gang of Four), Raquel DiSabatino (Facebook), Charles Fishman (Cisco) and Ethan Kaplan (Warner/Elektra/Atlantic Music) to talk about where artist-driven social media is heading.

Creative Capitol: Music, Culture and Policy under Obama

With just over a year since this administration took office, it’s a good time to reflect on how the creative industries (including music, natch) are faring in the current executive, agency and legislative environments. FMC Policy Director Michael Bracy will lead a discussion with Beltway players including Austin Schlick (General Counsel, Federal Communications Commission) Tim Tuten (Hideout Nightclub, Chicago/Department of Education) and Christine Varney (Assistant Attorney General for Antitrust, Department of Justice).

Mentor Session 3: featuring HINT Project Coordinator Alex Maiolo

FMC’s Health Insurance Navigation Tool (HINT) project coordinator, Alex Maiolo, will be on hand about health insurance for musicians. Because you can’t rock if you’re not healthy. Well, unless you’re Keith Richards…

Again, you’ll want to peek at our SXSW page for a list of other panels and activities we and our Board and advisory board are involved in, as well as some stuff we just think will be cool to check out.

Hope to see you in Austin!

You may recall our post from a while back about popular mashup artist Girl Talk, where we noted all the clearance and licensing hoops he’d have to jump through for his records to be 100 percent legal. Our takeaway? The current sample license clearance process is likely too time-consuming and cost-prohibitive for Girl Talk to make his art legit.

According to some press accounts, Girl Talk and his label, the aptly named Illegal Art, believe that his work is legal under the fair use principle — meaning, there’s exceptions within US copyright law that could protect him from being liable for infringement.

So what, exactly, is fair use? It’s a part of copyright law that recognizes that there are certain, limited conditions within which a copyrighted work can be used without requiring permission from rightsholders for “purposes such as criticism, comment, news reporting, teaching, scholarship, or research” without being considered unlawful. Whether Girl Talk’s work falls into these categories is literally a matter for the courts: fair use is only applicable when a case for infringement is made — it’s what law-type folks call an “affirmative defense.” Girl Talk has yet to be sued for infringement, which means that his fair use claims are currently rocking in the realm of the theoretical.

Keep in mind that fair use isn’t only about music — it’s meant to apply to all copyrighted material, from print to photography to film. Yet there is not a fair use precedent in music (with the exception of limited personal use protections for consumers), which means that using other peoples’ material in your own creations — no matter how small a snippet — requires clearance from the copyright owner(s). And keep in mind that there are two copyrights in music — the sound recording copyright and the underlying composition — which makes things that much more complicated.

Over the years, a string of court decisions (including Cambell v. Acuff-Rose Music Inc. 510 U.S. 569 [1994], Newton v. Diamond 349 F.3d 591 [2003] and Bridgeport Music v. Dimension Films 410 F. 3d 792 [2005]) have impacted the scope of fair use in copyright. In the wake of these rulings, there are those who have argued that current fair use exceptions aren’t enough to deal with the realities of our tech-driven, networked era. Some, in fact, suggest we need a legislative fix.

In an effort to realign fair use to accommodate contemporary behavior — creative and consumptive — the public interest organization Public Knowledge has recently released a proposal to amend Section 107 of the Copyright Act [PDF]. This is part of a series of recommendations aimed at addressing multiple aspects of copyright in the digital age. Public Knowledge’s first proposal would extend fair use to include:

1. incidental uses (uses that capture copyrighted material where the material is not the primary focus)

2. non-consumptive uses (where the use does not rely on the underlying creativity of the work)

3. personal, non-commercial uses (such as burning a CD for personal use or creating a YouTube video)

It’s possible that these revisions could work for copyrighted works in movies and literature — like a documentary interview with a famous photo in the background, or a reprint of a book for the purpose of critiquing the font — but do they make sense for audio recordings? Fair use in music involves highly contextual legal analysis, and nowhere is this more evident than in digital sampling. The law is clear that you need a license to use any part of the sound recording, but you might not require a license if you use a minimal amount of the underlying composition, even if the portion can be clearly identified in the end product. Of course, the latter use would still have to be successfully tested in court as a defense against infringement before it was considered lawful.

So what about an artist like Girl Talk, who remixes upwards of 20 songs to create a single dancefloor anthem? Do Girl Talk’s mashups qualify as “incidental” uses? Could they feasibly be considered non-commercial? Similarly, would a filmmaker still have to pay for an eight-second clip of a tune heard in a convenience store scene, or could they claim fair use because it’s not the “primary purpose” of the movie? Here, Public Knowledge’s proposals are unclear, at least to us.

Copyright essentially calls for balance between respecting creator’s rights (and their potential marketplace reward) and establishing a public domain where others are free to use and build upon existing work. The fair use proposals advanced by Public Knowledge are a good step in highlighting this balance while generating discussion about issues that impact an increasingly broad section of the public — even if they don’t know it. Still, it’s possible that a set of provisions that could work for some forms of expression may not provide sufficient guidance for more nuanced uses.

In other words, the Public Knowledge proposal is an excellent jumping off point for a more detailed — and necessary — discussion about how the use and re-use of existing creative works can be reconciled with the realities of today’s digital environment. Workable solutions are notoriously difficult to achieve, but that doesn’t mean we should stop kicking around ideas. Who knows, maybe we’ll crack this Girl Talk riddle yet.

A couple of quick questions:

First, what are you doing this Wednesday and Thursday? And secondly, do you live in / can you get to the Big Apple?

For those of who happen to be in the New York area (or who need a good reason to be in the New York area), should consider checking out the Digital Music Forum East. This conference, now in its 10th year, features folks from across the music biz spectrum, including label executives and CEOs, publishers, digital innovators, representatives from the gaming community, attorneys… and plenty of curious onlookers.

We like conferences — which is why put on our own three-day Future of Music Policy Summit every year — and this one definitely looks interesting. The latest Digital Music Forum East includes a plethora of buzz-worthy presentations, panels and keynotes about the state of digital music. For the moment, anyway — things have a tendency to move fast in the topsy-turvy world of technology and tunes. All the more reason to take a snapshot for posterity.

Space is limited; register here.

It’s been a while since we’ve done a news roundup. No, we weren’t saving it for a snowy day — we’ve had enough of those lately. At any rate, here’s a rundown of what’s been happening out there in the wide world of music.

Canada: Not Just For the Olympians

Canadian Music Week is a major event not just for our Northern neighbors, but for the rest of the world, too. It’s coming right up (March 10-14, Toronto), so make your plans now…
Official Site

Department of Justice Announces IP Task Force

The US Department of Justice (DOJ) announced the formation of its Task Force on Intellectual Property on Friday, Feb 5. The Task Force was detailed by Attorney General Eric Holder from a snow-clogged Washington, DC. “The rise in intellectual property crime in the United States and abroad threatens not only our public safety but also our economic well being,” Holder stated.

Digital Music News

Google, FCC Look To Speed America’s Lagging Broadband

Two different U.S. broadband goals were laid out this month. The Federal Communications Commission chief called for connecting 100 million households at 100 megabits per second. But Google stole his thunder last week, promising to bring eye-popping speeds of 1 gigabit per second to thousands of Americans.

Bill Chappell, NPR

Musicians Union Launch ‘Music Supported Here’ Campaign

The Musicians’ Union (UK) has launched a new campaign called Music Supported Here, which aims to equip artists with the resources to communicate copyright issues to their fans, in a new bid to convince consumers that they might want to buy music rather than nick it off the internet.

TheCMU

But Is It Safe? ‘Womb Boxes’ Get Another Look…

Music is one of the joys of life, but should fetuses get a taste while still in the womb? Suddenly, a seemingly novel idea - pumping tunes and other sounds into the womb - is getting a second look. This is a trend that started in the pre-iPod 90s, though New York Post writers Don Kaplan and Brian Niemietz are now asking the right question. Namely, is any of this safe?

Digital Music News

Broadband. If you’ve been reading this blog, you know that we think it’s pretty important. These days, you need access to the internet for pretty much everything from looking for a job to booking a plane ticket. Yet too many Americans lack a connection to this essential service.

High-speed internet is crucial to the music community, too — particularly artists who depend on the web to do everything from planning tours to selling music and merch to connecting with audiences directly. And fans use it to keep up on and spread the word about their favorite acts in real-time. For all these reasons and more, it’s clear that the future of music is online.

Expanding access to the most powerful communications tool of our time will help upcoming generations of artists participate in a legitimate digital music marketplace that rewards creators and fans.

That’s why we support the FCC’s efforts to develop a National Broadband Plan that gets affordable, quality internet service to more members of the public — including musicians. (Check out what composer Alex Shapiro had to say about at the FCC’s Broadband Workshop in September 2009.)

If you think that artists should be able to advance their careers on their home turf, and that fans should be able to discover and access lawful music wherever they live, you should care about making broadband more accessible, competitive and affordable. Currently, the music community an unparalleled opportunity to have a say in how the internet will be shaped in the coming years.

As part of the American Reinvestment and Recovery Act, the U.S. government has set aside $7.2 billion to expand broadband internet access to unserved and under-served communities across the US. The goal is to increase jobs, spur investments in technology and infrastructure to provide Internet access to those who don’t have it and provide long-term economic benefits. Grants will be distributed through two channels:

• The Broadband Initiative Program (BIP), which is managed by the Royal Utilities Service at the USDA, will make loans and grants for broadband infrastructure projects in rural areas.
• The Broadband Technologies Opportunities Program (BTOP), which is managed by the National Telecommunications and Information Administration (NTIA), will provide grants to fund broadband infrastructure, public computer centers and sustainable broadband adoption projects.

Getting Involved

This is great opportunity for music and arts groups to partner with larger funders to bring broadband to their communities. To make this happen, you need to put together an application and get in touch with project funders.

Round I of funding applications took place in Summer 2009. Round II funding applications will be accepted on or after February 16th 2010 in anticipation of the final application deadline of March 16, 2010. The application requirements have been somewhat relaxed for this second round, making it an ideal time to get involved.

Here are three steps to learning more about how you can participate.

Establish an Organization Profile

The New America Foundation’s Open Technology Initiative also has a lot of information on efforts to expand broadband service.

As always, we’ll be keeping our eyes (and ears) on this and other internet-related issues, so stay tuned!

We’re currently in the midst of another “Snowpocalypse” here in Washington, DC, but we figured a blog post would give us a nice break from all that shoveling.

Today, reports emerged about Warner Music backing off of “free” music streaming. As digital entrepreneurs and rights holders continue to explore ways to get fully-licensed music to the masses via the internet and mobile, issues in licensing and revenue generation continue to bedevil players on all sides.

In Europe there are promising “freemium” services like Spotify and We7, which allow free access to audio, subsidized by audio and web-based advertising. Spotify, in particular, has pointed to successes in both reducing piracy in its native Sweden and winning “conversions” to its subscription-based service, which removes the ads and allows listeners to go mobile via apps for the iPhone and Google Android handsets.

Experiments with “free” in the US haven’t fared as well, with sites like Spiralfrog (which allowed PC users to stream tunes subsidized by web ads) and MySpace Music either going belly up or struggling to generate revenue. It’s clear that ad-supported services face considerable challenges, particularly where licensing costs remain prohibitive. But is this the full story? Take Spotify, for example. The service is such a hit in Europe that it has scaled back the number of users who have access to the free verison. Still, due to the favorable response from users, Spotify has made inroads in increasing paid subscribers. Part of the reason is because fans become so enamored with the free desktop version that they are willing to pay for on-the-go access. On the other hand, MySpace Music has seemingly failed to win the “hearts and ears” of fans. Some would say this is due to the product design — MySpace Music has been criticized for its clunky interface, while Spotify has gotten praise for its clean, intuitive (and some would say bare-bones) feature set.

But back to Warner Music. The company has the reputation of being among the most resistant of the major labels to embrace new models for digital distribution. So there’s probably no reason to be surprised that they’ve cooled on the idea of freemium. According to Warner CEO Edgar Bronfman Jr, “Free services are clearly not net positive for the industry and as far as Warner Music is concerned will not be licensed. The get all your music you want for free, and then maybe with a few bells and whistles we can move you to a premium price strategy, is not the kind of approach to business that we will be supporting in the future.”

Yet Bronfman clearly sees potential in the idea of paid subscription access, particularly as an alternative to the iTunes pricing model, which some major label chiefs have long viewed with suspicion and even outright contempt. “The number of potential subscribers dwarfs the number of people who are actually purchasing music on iTunes,” Bronfman says. This may be true, but Apple, too, seems primed to get into the “cloud-based” access game with its recent purchase of streaming service Lala. (Click here for more juicy speculation about what that could mean.)

One big big question is whether Warner will be removing its catalog from existing freemium services or simply refusing to license to similar platforms going forward.

Another big “if” is whether Spotify — which is currently only available in Europe — will be able to bring its free, ad-supported service in the US. An American launch has been “imminent” for at least the last six months, but this could throw a new wrench into the works. Spotify founder Daniel Ek has been outspoken about his confidence in the Spotify model, a view that has been recently echoed by other major label execs. In January, Rob Wells, senior VP of Universal Music Group International claimed that “Spotify is a very sustainable financial model - full stop.”

Other industry insiders seem to share this view. Jon Webster, CEO of UK’s Music Managers’ Forum says that services like Spotify are crucial to luring users away from illegal means of obtaining music. “Anything that’s going backwards is denying where the world’s going,” Webster says. “New media has to give the consumer what they want and the consumer is in a world where they want things right here, right now — and if you don’t give it to them, they’ll steal it.”

Here at FMC, we believe that “monetization” (an early contender for buzzword of the decade) must include equitable structures for artist compensation. Currently, even subscription streaming services don’t pay huge dividends to artists — at least not in league with what a songwriter or performer could make from physical media. On the other hand, the digital music space is still evolving, and there is a possibility that this compensation dynamic could change due to the so-called “economics of scale.” Equally important is ensuring that artists — particularly independents — have access to these increasingly popular platforms. Still, it’s obvious that a service will only take off if it has a fully stocked digital cupboard, and Warner Music owns a hefty chunk of music. It remains to be seen how or if withholding catalog from freemium services will impact the viability of these outlets.

What do you think about this development? How do you see it impacting artists, both big-name and developing? How do you access music legally? What do you think about freemium vs. subscription vs. download? Tell us in the comments.