For artists and managers, this is the moment to take things into their own hands. Artists no longer need to be held for 10 years and they no longer need to sign away ownership of their recorded copyrights. These days, an artist working closely with his manager can ensure that everything is done in the artist’s best interest. Majors have never done that. And never will.

With the success of independent bands, it looks like the tide is turning, at last.

“History suggests that if licensing is not dealt with, users of technology will just go around it, either by using non-copyrighted material, by simply ignoring copyright via various ingenious devices, or simply by using music on such a scale that enforcement becomes impossible. The users of new technologies such as podcasting, DAB radio, MP3 players and community portals such as MySpace may all fail to see why they should become involved with the old companies, except on their own terms.”

“The current record company model might well morph into that of venture capitalist licensors, working in partnership with artists or their representatives to develop their business, and pay a ‘fair share’ of the net income from exploitation to the creators of music.”

“What is essential is that the disproportionate power of a few very large companies should not be helped to continue into the future marketplace by trying to mimic the current distribution, financing and ownership model in the totally different environment online.”

The last mentioned is a key point: the ownership model. It is the corporate ownership of an artist’s music that is so poisonous today, and unsustainable in the future. The “venture capitalist” idea? Sounds like DGM with more money. By jove, I think he gets it…

Nettwerk is adopting a modified version of what I know as the DGM model, after the pioneering company set up by Robert Fripp and David Singleton in the 90s. They started with the premise that artists should retain copyright and control over their music: what McBride is calling “collapsed copyright”.

An interesting article, which details some of the apparently extreme marketing measures needed to differentiate your music in the marketplace. Allowing remixes is one thing, but to make an entire album available for this purposes is another. Music in this form could be called “premixed”, needing only to be assembled by the end user, with limited control over the mix.

Where’s the art in that? You might hope it inspires people to create their own music, but that’s as likely as someone being inspired to take up woodworking after assembling a coffee table bought from IKEA. We’ve come a long way from the idea of “the studio as instrument” pioneered in the ’60s by the Beach Boys and the Beatles.

Billy Bragg summarises the current situation in an editorial he wrote for The Guardian last month:

In the past, if they wanted to sell records, artists were obliged to sign to a big label. Only they had the muscle to ensure that your record got into all the shops and, crucially, that you got paid. Even the independent labels, who made a great show of standing apart from the majors, often relied on them for distribution and revenue collection.

Artists paid a high price for this service, signing away ownership of their recordings for the full life of copyright, effectively until no more could be earned from them. Sure, the artists made some money, but seldom more than 10-15% of what the record company kept from the retailers to cover manufacturing, marketing, promotion and distribution.

The rest of the editorial is about the harsh licensing terms imposed by the new MTV Flux channel, such as signing away all moral rights to your work, for the privilege of appearing on cable TV. Independent artists, understandably, should approach the F Word (Flux) with extreme caution, unless these conditions change.

A simple view of the current situation might make it seem that more distribution options are opening up for artists, but is that really the case? There is iTunes, which has a monopoly position in commercial downloadable music. They gained this position with the help of the big media companies, exploiting artists in the same way as they always have. Their position is being challenged by other businesses, such as the gentrified Napster, and Microsoft’s Urge collaboration with MTV – still in cahoots with the music industry, looking for new ways to make new money from old music. All use Digital Rights Management (DRM) to restrict the ways that music can be listened to.

In the news last month was a deal between MySpace, the user community site (owned by Rupert Murdoch), and Snocap, a downloadable music service started by Napster founder Napster founder Shawn Fanning, to allow MySpace users to sell their music from their MySpace pages. Great, but where does this leave the listener? A normal record store can be a daunting prospect without a friendly clerk to guide you; now imagine a mile-long record store shelf, stocked with ten million different CDs, all at the same price, and you have an idea of what we are faced with today.

In an essay and an interview from 1995 Brian Eno looked at the value that art can have beyond mere music, and posited a role for a Curator service for music. Instead of paying for music directly, you would engage the services of a curator, who would examine your tastes and requirements and suggest new and interesting art for you. There is so much music out there, not much of it any good, that this kind of role is becoming more and more important, and this can be seen in MySpace’s “friends” system, among other places. There have been several attempts to automate the discovery of music you might like, particularly in the form of music recommendation engines such as last.fm and Pandora.

A consensus seems to be emerging in the online music world, including MySpace: don’t expect to charge any money for your music alone, not while you’re an unknown artist with no audience. Because the barriers to entry for music creation have come down so far, you can’t expect to get paid just because you made a piece of music, but there is a renewed appreciation for bands that can deliver the goods live.

Putting it all together, then: simple Distribution, in today’s overcrowded music market, needs a major rethink, a move towards delivering individual people the culture they want to experience – even if they don’t know it yet. In this attention-focused world, wasting someone’s time is a cardinal sin; make it relevant, or people will just do without.

It’s not enough to get your music “out there” if you’re fighting millions of others with the same basic idea, chasing the ears of listeners who have no inherent need for your works. To paraphrase Lily Tomlin: it’s a rat race, and even if you win, you’re still a rat. An artist’s real chance of standing out starts in front of an audience, which is where you find out what you can do for people to help them remember you.

It all sounds fairly simple, on the face of it: the term “work for hire” appears on a contract when you agree to create a work for hire, which would be something outside the scope of a normal record contract. One example would be creating some music to order, for a soundtrack or commercial project. Something you wouldn’t want to release yourself or retain copyright in, as long as you’re not violating any other contract(s) you may be under. WFH also applies to work you perform while in the employment of a company, which you also agree to when you join. Where’s the problem?

The article is about new contracts: what it doesn’t mention is the retroactive change of the definition of a WFH, under USA law, to include sound recording. This change was sneaked in in the Technical Amendments to the FCC’s Satellite Home Viewer Improvement Act, 1999. This doesn’t sound like much by itself, and the RIAA has defended this change as a clarification:

“The amendment does not automatically render sound recordings works made for hire. It merely confirms that they are eligible for such treatment when all parties sign an express written agreement.”

It makes it sound as if it will permit artists to agree, up front, that what they are doing is a WFH, and I don’t doubt that can happen, but further comments from Hilary Rosen of the RIAA lawyer are more worrying:

“As Paul Goldstein, professor of law at Stanford University explained in his statement, as a collaborative work, if sound recordings were not considered a work made for hire, they would be tied up in endless disputes and negotiations over copyright ownership among any and all of the individuals who had any colorable claim of authorship,” said Rosen.

This can be read as implying that WFH is a new default position unless contracts are clear on the matter. More seriously, many long-existing contracts do contain WFH clauses, which the artist agreed to. The clause is appearing in new contracts, which an artist may sign without fully understanding the implications therof. WFH is covered under the under the terms of the Copyright Act, 1976. Put the two together, and it meant that the recording company owns the work you sold them in perpetuity; the copyright assignment no longer expires after 35 years.

This is why the Work For Hire change caused such concern. The last paragraph of the Music-Law.com article I linked to above puts it succinctly: if you see such a contract in front of you, alarm bells should be going off. Another article at GTLAW discusses the reaction from artists: it concludes that sound recordings should not be classified as WFH, because of the creative control that artists maintain over the process. They are paying for the whole thing, after all.

However, this does not help those artists who have signed the contracts with the WFH clauses, which answers the question that started me writing this: why artists are pushing to have the language removed from law in the first place – for example, the Recording Artists Coalition. After all, the legal advice is clear today, but I guess it was not always the case.

In his statement to Congress Hilary Rosen started by saying the WFH option had always been available to artists – which is technically true – but then defended its widespread use as a way of avoiding copyright disputes:

“Think about the disruption that would ensue if, 35 years after its creation, each of the multitudes of authors involved in each and every track of an album could reclaim copyright ownership of that track…”

Yes, questions of copyright ownership can be difficult and painful. Does that give the RIAA the right to refuse to release recordings, in case there are such problems? An analogy: someone released from prison after 35 years will have difficulty finding his place in society – finding work, getting his finances on order, meeting up with friends and family, etc. Should he just be kept in jail, to avoid all that hassle?

You may also ask why a contract signed by young recording artists allows the record company to have perpetual rights over all their work, but that is a subject for another day.

What is remarkable about this story is not just that it made the front page of the Daily Mirror – at least the Irish version, because Nadine is from (London)Derry. It is also the subject of an excoriating editorial, the first time I can recall the mainstream media taking this issue on in such plain language. Quote:

What Nadine has found is the dark side, where young hopefuls are exploited and the men who pull the strings grow rich.

These are people who control the purse strings and can make figures jump through hoops so that huge amounts end up in their bank accounts while the kids on stage pay all the bills.

A good quote with which to kick off this particular blog: it’s a subject I’ve been following for years, and I’ll be throwing in some older stories along with new cases of artists being exploited by music industry fatcats.