It’s been a while since my last blog entry, and I apologize to regular readers of Law on the Row.  I’ve been in transition mode, getting settled in  to my new offices downtown at 2nd Avenue North.  I was also invited by my good friend Mark Volman to teach a course at the Mike Curb School of Music in the Entertainment Industry Studies division and have been diving into that task.  It’s been a great year so far and I’ve made a lot of new friends. One of those friends is a student in my class, Lyndsey Highlander.  She is an amazing talent.  Lyndsey will be performing her music at 12th & Porter Lounge tomorrow evening, September 9th.  Doors open at 630 and music starts at 7pm.   In addition to Lyndsey, the line up includes a variety of genres, including artists Kesley Noffsinger, Russ Dickerson, Ashlyne HUff, and Marie Hines.   If you like country, soul, or pop- head on down and support some local artists and songwriters=[;l,!  The more friends, the better!

I really enjoyed being on The Music Row Show on 1510 WLAC last evening with Scott Southworth.  I love their motto, “two guys fumbling their way through the music business, so you don’t have to!” 

If you didn’t catch the show (you should be able to download the podcasts from their website in a few days), Scott and I had a very enjoyabl discussion about the future of the music industry and the idea of the “do it yourself” generation of musicians, artists and songwriters which has become my focus and mantra of late.  I believe that with today’s technological advances – the iPod/MP3 player, ProTools, Macbooks, the Internet etc. – entertainers have the ability to do it themselves in ways never before possible.  The days when you absolutely needed to record deal to reach the fans is absolutely behind us.  As I said on the show, I do not believe that major labels are a thing of the past.  They have provided us with great music for years and will continue to play a vital, although probably modified, role in the development of new talent.  My point is simply that the alternate pathways are becoming more and more fruitful and plentiful.

During the show I brought up some ideas along these lines that I had read and heard about which involved some not-so-famous musicians/artists who have done just that – found a way to connect with their fans in unique ways and give them a reason to shell out some money for their product.  This idea is not unique to me, it grew out of an analysis of the Nine Inch Nails experimentsby Michael Masnick, who is the editor of the Techdirt blog and gave the keynote address from the 2009 Digital Summit, which you view here.

After Masnick gave a shorter version of this talk at Midem, people complained that Trent Reznick was a product of the record industry and, therefore, the experiment would not necessarily work with independent artists.  So, for thie keynote in Nashville, Masnick added in two examples of independent artists who were sucessfully selling product without the add of the marketing machines:

The first was Josh Freese.  Mr. Freese had a rather significant following of fans and found a very creative and unique way to generate sells of his new album “Since 1972”  from that fan base.  For some laughs, click on the link above and look at the variety of offerings.  A few of my favorite offering is the $50 level which, among other things, buys you a “thank you” phone call from Freese.  The $2,500 level buys you not only an autographed copy of the CD, but a drum lesson from Mr. Freese, a trip to the Hollywood Wax Museum with a member of the Vandals or DEVO, a signed DW snare drum and three items from his closet!  He sold two of these packages!  The $10,000 package includes the autographed CD and Snare Drum, but also includes a day with Freese at Club 33 and Disneyland, after which you get to drive away in his late-model Volvo (you have to drop him back home first)!  No takers on that one yet.

The second is the artist whose name I could not for the life of me remember last night during the radio program, but is Jill Sobule.  When she wanted to record an independent album entitled “California Years” back in 2008, she established the website www.jillsnextrecord.com in order to raise the money necessary to produce the record.  On the website, she offered varying levels of support, from the “Pewter” $50 level, which buys you a “thank you” on the CD liner, all the way up to the $10,000 “Weapons-Grade Plutonium Level” which buys you the right to sing on the album and play cowbell (Good guess Scott!).  Other interesting ideas are the $2,500 Emerald level, which gives your “executive producer” credit on the album or the $5,000 Diamond level which bought you a “house concert” from Jill and the right to charge admission!  She actually sold 2 and 3 of these levels respectively.  Ms. Souble had originally budgeted $75,000 for production and distribution and eventually raised all of that and them some.  For a full tally of the more than $88,000 she raised through this effort, here is her “tote board.”

Masnik’s point in the keynote address, and the model he derived from Trent Resnick’s NIN experiment, is that you must “Connect with the Fans” (or CwF) and give them a “Reason to Buy” (or RtB).  Thus, the equation is CwF+RtB = $$$$$.  This is the point I made on the radio program last evening – artists need to determine who their fan base is and find a way to connect.  Through that effort, the goal is to create an e-mail database of those fans so that you have a way to communicate with them (whether it be by e-mail blast, Twitter, MySpace, Facebook or whatever).  Once you’ve connected, the second step is to find a creative incentive that gives them a reason to buy.   As readers of my blog will remember, I’ve been preaching this stuff for years.  Stay tuned for more ideas!

Barry Beckett, renowned Nashville producer and longtime musician, passed away last evening, further dampening, in conjunction with heavy downpours, the opening day of the 2009 CMA Music Festival.

Beckett was a fellow Aquarian, born February 4, 1943 in Birmingham, Alabama.  He was a noted keyboardist and musician, perhaps best known as a member of the Muscle Shoals Rhythm Section which created the “Muscle Shoals Sound” as part of the recording sessions produced by Rick Hall in the Fame Recording Studio.   

Beckett can be heard on various hits from the famous Stax Records (e.g., the Staple Singers‘ "I’ll Take You There”) as well as playing keyboards on my favorite Paul Simon tune,  the 1973 pop hit "Kodachrome."   As a A&R rep for Warner Nashville in themid 80’s and later as a producer, Beckett touched the careers of many notable artists, including Hank Williams, Jr., John Prine, Mary MacGregor, Alabama, Kenny Chesney, Bob Dylan (“Slow Train Coming”), Neal McCoy,  Glen Frey, Bob Seger, Delbert McClinton, Joan Baez, Dire Straits, Joe Cocker, Lorrie Morgan, Confederate Railroad, Phish.  A partial discography can be found here and here.

He was inducted into the Alabama Musicians’ Hall of Fame in 1995.  Among other things, Barry enjoyed building model railroad track layouts when not producing hit records.  He, and the music he continued to produce, will be severely missed in the Music Row community and well beyond.

Once upon a time, there was a shinny new device called the iPhone that tried to climb up the mammoth hill that is the sole domain of the business smartphone.  “I think I can, I think I can,” said the iPhone, and it tried and it tried, but alas, it could only make it up about half way, and then it sputtered and. . . .   The end of this story cannot be written.

Obviously, you probably figured out by now that I have fallen victim to the allure driven by the site of all of my business associates who were sporting shiny black and white, Zen-like devices with colorful icons.  Yes, I bought an iPhone.  And while this article may be a bit off topic for my music business oriented blog, anyone who knows me knows that I am a techie through and through and enjoy new gadgets and technologies more than most.  Many of my friends call me the guru for good reason.  So, here goes.

As a long time fan of Palm, you might wonder why I did not wait for the premier of the Palm Pre.  The simple reason is that Sprint service does not reach to my residential area.  That was also the reason that, in recent years, I migrated to Windows Mobile, which I grew to love almost as much as the Palm OS.  However, finally I was convinced to switch to the dark side and try it with Apple.

My relationship with my iPhone is what I describe as a “love hate” relationship.  Yes, there are many many things I really love about the iPhone.  I love the way it feels in your hand, almost like a smooth pebble plucked from a lake in the mountains of Japan.  As I said in the story above, very “Zen-like.”  After all, that is the Apple way isn’t it?

At first I thought the soft keyboard would drive me crazy.  Surprisingly, I’m getting used to it and pretty efficient, although I still maintain that a hardware keyboard is much more efficient – something the Palm Pre does beautifully. 

For the most part, on the positive side, I really love the web browsing experience.  The websites that actually work (more on this later) come up beautifully and quickly.  And, as a tech person, I really like the fact that there are scores of programmers writting countless applications for the iPhone.  For the most part, the marketing is true, “there is an app for that.”  That’s sort of where the “hate” part of the relationship begins, in that shaded area between the “for the most part” and the remaining part of 100%!  That’s the part that keeps the iPhone from being a full-fledged business phone.

Recently, Apple has been pushing the idea that the iPhone is the ideal phone for business.  There are several flaws with the iPhone which, until remedied, will prevent its widespread infiltration into the lockhold that BlackBerry, Palm and Windows Mobile have on that sector of the market. 

So, what I’d like to address in this article is not the scores of more obvious deficiencies that have already been pointed out in the blogs and articles – no native voice dial, lack of full support for Bluetooth, no memory expansion, no cut and paste, no MMS, intolerable battery life, etc. – but the less obvious and definitely serious deficiencies that relate more specifically to a business person’s daily use of a smartphone.

First and foremost, and this has certainly been recognized by others, is  the lack of support for Javascript and Flash plug-ins in the built-in Safari browser.  If your websites relies on either of these, as my www.musicattorney.biz does, then what the iPhone visitor will see is a blue Lego-style brick with a question mark in the middle  (see the illustration).  What the hell is that?  Unforgiveable, that’s what it is.  There’s no other word for it.  And all simply because Apple doesn’t like to play nice with its competitors, particularly Adobe.  Shame on you Jobs.

Secondly, and this has always been one of my major beefs with Apple, the proprietary, i.e. closed, operating system.  Apple’s SDK, as one developer put it, “has more restrictions than Guantanamo.”  Developers require a certain level of integration with the OS in order to develop business-class applications to work around the inherent deficiencies in the native iPhone software.  But no – Apple is too proprietary for that.  This needs to change and quickly.

One perfect example of this is the calendar.  For some unknown reason, there is NO WEEK VIEW in the calendar.  No week view?  I don’t know about most business people, but for me, the week view is the “go-to” view of choice.  Yes, I know, there is a “list” view on the iPhone, but it’s not nearly the same thing.  To witness the difference for yourself, download the iPhone version of an old Windows Mobile classic, Pocket Informant and look at the week view in that software.  Ah, problem solved you might be thinking.  Just use the App!  Not so quickly:  Pocket Informant ONLY syncs with a Google calendar account.  Why, you ask?  That’s right, because Apple will not allow the programmers to access the base-level calendar on the iPhone and therefore the information in the iPhone’s calendar CANNOT be displayed in beautiful week view of Pocket Informant.  Yes, the week view is sort of a sore spot for me.  But is iconic, if you’ll allow me the pun, of the fallacy of the proprietary restraints Apple places on programmers.  There is absolutely no excuse.

While we’re on the subject of little annoyances, what’s up with dialing the damn iPhone?  There is no quick way to get to the dial pad.  Duh!!!  It is, first and foremost, supposed to be A PHONE.  Give us a quick way to access the dial pad!  When you press the pretty green telephone icon, you land on whatever segment of the program you happened to be on when you last opened it, whether it be voicemail or recent contacts.  You MIGHT get lucky and land on the dial pad.  But there’s a one in four shot that you have to press yet another icon to get to the dial pad to, dare I say it, actually make a phone call.   IT’S A PHONE!!!!

Since we’re on the subject, looking up contacts is probably a breeze for some MP3 stealing teenager with 25-50 contacts in their address book.  When they swipe their pimple-popping finger down the list I’m sure it flows beautifully for them.  I, on the other hand, like many other business people, have close to 2000 contacts in my database: not the same  “weeeee” experience with the finger-scrolling thingy!  There is simply no good way, on the native applications, to search for a contact and quickly dial them.  Fortunately, in this instance, there are several app for that developed by people who recognized this deficiency.

Now, getting back to the primary focus of the article, the third annoyance that prevents the iPhone from being a major contender in the business market is the lack of multitasking.  That’s right, multitasking.  The Palm Pre recognizes and addresses this need beautifully, as does the Blackberry Storm.  Both have methods by which you can easily and quickly switch between open programs seamlessly.  Not the iPhone.  With the iPhone, you must always return to the home screen in order to open a program (if you’re lucky enough to find it on the home screen). 

The home screen is designed, once again, for the casual and, dare I say it, younger user.  Each program is represented by a cute, colorful icon with neatly rounded edges.  Did I say cute?  The icon concept works great if you have only a few applications, but if you start to actually utilize the “there’s an app for that” concept and download more than a few pages worth of applications, you soon find that it’s difficult to locate the app you’re look for in any given moment (As an aside, you’ll also find that you are limited to the number of applications you install on the iPhone – nine screens of 16 +4, i.e., 148 applications!).  Apple has some smart programmers, why not throw in some “categories” or “tabs” or some intelligent organizational method to use in sorting and filing the icons in manageable clusters?!  But no, that’s a little to complex for an Apple, I suppose – there’s absolutely NO file or icon management whatsoever.   

While we’re on the subject of wish lists and multitasking, why not allow me to have a “back” button that returns me to my previous program.  But no, if I want to look up someone’s phone number or address to include in a calendar event, for example, I have to hit the home key, thereby exiting the calendar, go find the contacts icon, press it, scroll through scores of contacts until I find the right one, then select that contact, memorize the information, exit the contacts program, find the calendar icon, press the calendar icon – OH MY FREEEEEKING *#*#*#!!!!!!  Isn’t Apple supposed to be the king of simplicity?  Somebody surely missed the boat on this one didn’t they?  It IS a simple concept – multitasking.  Apple didn’t get it.  Multitasking is one of the things that all successful business people have in common.

So, you might be wondering, if I am doing all this complaining, why do I still have and use the iPhone.  Well, actually as I said, there are many apps that do service many of my needs – an many that work around some of these issues.  For example, I utilize Freshbooks for invoicing with its iPhone app, I use SugarSync for file backup and access it with its iPhone app, I use Jott for dictating quick notes to myself and clients and it has a neat iPhone app, I use eReader for my literary needs, Transactions to get myself paid, Pandora to listen to music, Upvise for my shopping list needs, ReQall for my localized to do list, MyCast for weather, and My Banking online, etc. etc. You get the picture.  There are still many programs that fill many of my business needs. 

Oh, don’t get me wrong:  I could do ALL of these things on my old Samsung Blackjack with Windows Mobile.  But certainly the iPhone is, after all, the most recent iconic symbol of high technology and that is, after all, why I ultimately ended up with the iPhone.  And it does perform beautifully.

   I just hope that Apple has their act together enough to realize that their market is expanding, and in order to expand fully into the business sector, it might have to let go of some of its old methods of doing things.  Let the programmers in.  Let them design fixes to these flaws.  Let them develop an app for that!  Until then, in my opinion, the Blackberry Storms and Samsung Jacks of the world will continue to have a foothold in that precious business market that every smartphone desires to dominate.  Until then, Apple, repeat after me:  “I think I can, I think I can . . . .”

Once upon a time, there was a shinny new device called the iPhone that tried to climb up the mammoth hill that is the sole domain of the business smartphone.  “I think I can, I think I can,” said the iPhone, and it tried and it tried, but alas, it could only make it up about half way, and then it sputtered and. . . .   The end of this story cannot be written.

Obviously, you probably figured out by now that I have fallen victim to the allure driven by the site all of my business associates who were sporting shiny black and white, Zen-like devices which colorful icons.  Yes, I bought an iPhone.  And while this article may be a bit off topic for my music business oriented blog, anyone who knows me knows that I am a techie through and through and enjoy new gadgets and technologies more than most.  Many of my friends call me the guru for good reason.  So, here goes.

As a long time fan of Palm, you might wonder why I did not wait for the premier of the Palm Pre.  The simple reason is that Sprint service does not reach to my residential area.  That was also the reason that, in recent years, I migrated to Windows Mobile, which I grew to love almost as much as the Palm OS.  However, finally I was convinced to switch to the dark side and try it with Apple.

My relationship with my iPhone is what I describe as a “love hate” relationship.  Yes, there are many many things I really love about the iPhone.  I love the way it feels in your hand, almost like a smooth pebble plucked from a lake in the mountains of Japan.  As I said in the story above, very “Zen-like.”  After all, that is the Apple way isn’t it?

At first I thought the soft keyboard would drive me crazy.  Surprisingly, I’m getting used to it and pretty efficient, although I still maintain that a hardware keyboard is much more efficient – something the Palm Pre does beautifully. 

For the most part, on the positive side, I really love the web browsing experience.  The websites that actually work (more on this later) come up beautifully and quickly.  And, as a tech person, I really like the fact that there are scores of programmers written countless applications for the iPhone.  For the most part, the marketing is true, “there is an app for that.”  That’s sort of where the “hate” part of the relationship begins, in that area between the “for the most part” and the remaining part of 100%!

Recently, Apple has been pushing the idea that the iPhone is the ideal phone for business.  There are several flaws with the iPhone which, until remedied, will prevent its widespread infiltration into the lockhold that BlackBerry, Palm and Windows Mobile have on that sector of the market. 

So, what I’d like to address in this article is not the scores of more obvious deficiencies that have already been pointed out in the blogs and articles – no native voice dial, lack of full support for Bluetooth, no memory expansion, no cut and paste, no MMS, etc. – but the less obvious and definitely serious deficiencies that relate more specifically to a business person’s daily use of a smartphone.

First and foremost, and this has certainly be recognized by others, is  the lack of support for Javascript and Flash plug-ins in the built-in Safari browser.  If your websites relies on either of these, and my www.musicattorney.biz does, then what the iPhone visitor will see is a blue Lego-style brick with a question mark in the middle.  See the illustration.  What the hell is that?  Unforgiveable.  There’s no other word for it.  And all simple because Apple doesn’t like to play nice with its competitors, particularly Adobe.

Secondly, and this has always been one of my major beefs with Apple, the proprietary, i.e. closed, operating system.  Apple’s SDK, as one developer put it, “has more restrictions than Guantanamo.”  Developers require a certain level of integration with the OS in order to develop business-class applications to work around the inherent deficiencies in the native software.  One perfect example of this is the calendar.  For some unknown reason, there is NO WEEK VIEW in the calendar.  No week view.  I don’t know about most business people, but for me, the week view is the go-to view.  Yes, I know, there is a “list” view – not the same thing.  To witness the difference for yourself, download the iPhone version of Pocket Informant and look at the week view.  Ah, problem solved you might think.  Just use the App.  Not so quick.  Pocket Informant only syncs with Google calendar.  Why, you ask?  That’s right, because Apple will not allow them to access the base-level calendar on the iPhone and therefore the information in the iPhone’s calendar CANNOT be displayed in beautiful week view of Pocket Informant.  Yes, the week view is a touchy subject for me.

While we’re on the subject of little annoyances, what’s up with dialing the damn iPhone?  There is no quick way to get to the dial pad.  Duh!@!!  It is, first and foremost, supposed to be a phone.  Give a quick way to access my dial pad.  When you press the pretty green telephone icon, you land on whatever button you happened to be on when you opened the program before, whether it be the voicemail or recent contacts.  You MIGHT get lucky and land on the dial pad.  But there’s a one in four shot that you have to press yet another icon to get to the dial pad to, dare I say it, actually make a phone call. 

Since we’re on the subject, looking up contacts is probably a breeze for someone with 25-50 contacts in their address book.  You swipe down the list and it flows beautifully.  I, like many other business people, have close to 2000 contacts in my database.  Not such a “weeeee” experience with the scrolling thing!  There is simply no good way, on the native applications, to search for a contact and quickly dial them.  Fortunately, in this instance, there is an app for that.

Now, getting back to the primary focus, the third annoyance that restricts the iPhone from being a major contender in the business market is the lack of multi-tasking.  That’s right, multi-tasking.  The Palm Pre recognizes and addresses this need beautifully, as does the Blackberry Storm.  With the iPhone, you must always return to the icon screen, which is, again, designed for the casual user.  The icon concept works great if you have only a few applications, but if you start to actually utilize the “there’s an app for that” concept, you quickly find that it’s difficult to find the app you’re look for.  You also will find, by the way, that you are limited to the number of applications you install on the iPhone – nine screens +4 only!  Apple has some smart programmers, why not throw in some “categories” or “tabs” or some intelligent organizational method!  No file or icon management whatsoever.  I don’t ask for much. 

While we’re on the wish list, why not allow me to have a “back” button, to return to my previous program.  But no, if I want to look up someone’s phone number or address to include in a calendar event, I have to hit the home key, thereby exiting the calendar, go find the contacts icon, press it, scroll through scores of contacts until I find the right one, then select that contact, memorize the information, exit the contacts program, find the calendar icon, press the calendar icon – OH MY FREEEEEKING *#*#*#!!!!!!  Isn’t Apple supposed to be the king of simplicity?  Somebody surely missed the boat on this one didn’t they?  It is a simple concept – multitasking.  Apple didn’t get it.

So, you might be wondering, why do I still have and use the iPhone.  Well, actually as I said there are many apps that do service many of my needs.  I utilize Freshbooks for invoicing, SugarSync for file backup and access, Jott for quick notes to myself, Google for directions, eReader for my literary needs, Transactions to get myself paid, Pandora to listen to music, Upvise for my shopping list needs, ReQall for my localized to do list, MyCast for weather, Banking online, etc. etc. You get the picture. 

Don’t get me wrong.  I could do ALL of these things on my old Samsung Blackjack with Windows Mobile.  But certainly the iPhone is, after all, the most recent iconic symbol of high technology.   I just hope that Apple has their act together enough to realize that their market is expanding, and in order to expand fully into the business sector, it might have to let go of some of its old methods of doing things.  Let the programmers in.  Let them design fixes to these flaws.  Let them develop an app for that!  Until then, in my opinion, the Blackberry Storms and Samsung Jacks of the world will continue to have a foothold in that precious business market that every smartphone desires to dominate.  Until then, Apple, repeat after me:  “I think I can, I think I can . . . .”

For the last several weeks, I have enjoyed being a guest host on Malcolm West’s live radio program, Race Night.  It’s a weekly show that airs on WSM 650 AM from 7-9 p.m CST.  The show is broadcasted into over 37 states and, as Malcolm quips, two outhouses!  It reaches over 150,000 listeners. 

The show is very unique:  it consists primarily of Malcolm’s commentary and responses to callers regarding the evening’s NASCAR race.  However, interspersed in the NASCAR theme are musical elements, including special featured guests who are prominent songwriters, entertainers and music industry veterans.   I was introduced to the show by my good friend and banker, Lisa Harless of Regions Bank.

Malcolm asked that I participate in the music industry portion of the evening to give an entertainment attorney’s perspective.  I’ve had the pleasure of participating in live interviews with Malcolm’s musical guests Jessica Miller, Buffalo Rome, Harold Bradley, Ray Walker and Karen Staley.  That’s Malcolm on the right in the photograph, together with Ray Walker, myself, and Kevin Anderson, the engineer and producer.

I can’t wait to see who will be on next week!  Join me and Malcolm for a fun evening of family entertainment next Sunday evening!

Rep. John Conyers, Chair of the House Judiciary Committee brought the Performance Rights Act (HR 848) up for markup this morning. 

HR 848 created no small amount of disagreement among radio broadcasters, minority broadcasters, trade unions and civil rights groups.  However, a group  of minority artists, including Duke Fakir of the Four Tops, Dionne Farris and Jon Secada, recently sent a letter indicating support for Rep. Conyers and this legislation.  The letters stated in part: 

As minority artists, we support a strong and vibrant local radio industry. We know that minority broadcasters play a vital role in our communities. And we support efforts to create accommodations in the legislation for small, minority-owned stations. But the creation of a fair performance right cannot be delayed further. We have already waited far too long. “Not now” is not an acceptable answer.

To address the concerns of minority broadcasters, Conyers offered the following amendments at today’s markup:

Affordable payment for small, rural, nonprofit, minority, religious and educational broadcasters

· Any station that makes less than $100,000 annually will pay only $500 annually for unlimited use of music

· Any station that makes less than $500,000 but more than $100,000 annually will pay only $2500 (half of the amount in introduced bill) annually for unlimited use of music

· Any station that makes less than $1,250,000 but more than $500,000 annually will pay only $5000 (the amount in introduced bill) annually for unlimited use of music

Relief for current economic situation

· No payment for 2 years by any station that makes less than $5,000,000 annually

· No payment for 1 year by any station that makes more than $5,000,000 annually

Parity for all radio services

· Establishes a “placeholder” standard to determine a fair rate for all radio services that will encourage negotiations between the stakeholders

Cannot hurt local communities

· Assures that this legislation cannot affect broadcasters public interest obligations to serve the local community

Assures consideration of relevant evidence

· Evidence relevant to small, noncommercial, minority, and religious broadcasters and religious and minority royalty recipients must be considered by the Copyright Royalty Judges

Other minority and civil rights groups that sent letters expressing support for the act included the Leadership Conference on Civil Rights, Pennsylvania Legislative Black Caucus, Rhythm and Blues Foundation and the A. Phillip Randolph Institute.

The executive director of the musicFIRST Coalition, Jennifer Bendall, supported the committee’s decision:

“We applaud Chairman Conyers and Committee members for their work on the Performance Rights Act and for supporting artists, musicians and rights holders in their fight for fair compensation when their music is used by AM and FM radio stations.

The Performance Rights Act will bring fairness to artists, musicians and rights holders and one that’s fair to radio and its counterparts. It also includes accommodations for small and minority-owned broadcasters. musicFIRST looks forward to the next chapter and to Congress to ensure that U.S. artists and musicians receive the performance right they deserve.”

Now that HR 848 has cleared the committee, it will be brought in front of the entire House for debate and vote. 

I was recently contacted by John Dargan, a Florida-based computer programmer who is also the webmaster for a new music-related web site called www.Nurturemusic.biz.  The concept of the site is simple, and somewhat unique:  it is a “slide show” of publicity photographs of various musicians, artists, bands and related music industry professionals.  Dargan finds musicians to be fascinating people, so he founded the site this past March with a goal of providing a marketing avenue for talented musicians allowing them to attract a wider audience.  So far, the site has engendered  an enthusiastic response from both the musicians and their fans.

To obtain the content, Dargan scours MySpace and other websites looking for musicians, artists and bands that have both great publicity photos and an apparent talent for music.  Dargan works hard to ferret out the best photos and the most promising musicians.

“It’s a tremendously fun hobby,” Dargan says.

A viewer arriving at the website is greeted simply with a photograph framed on the top with the site’s logo, a navigation bar, and the name of the artist, and on the bottom with various links and information related to the artist.  In the navigation bar, the user can move from photo to photo in the slideshow or learn more about the artists by clicking on one of the links or directly on the displayed image, which is generally hyperlinked to the musician’s website, MySpace page or the CDBaby location offering the musician’s CD for sale. In this way, Dragan hopes to drive web traffic to the commercial sites of the musicians.

In addition to providing free publicity to the musicians, the site provides credit to the professional photographers who took created some of the images as well as a hyperlink to the photographer’s website. Dargan makes an effort to contact each professional photographers not only to seek permission, but to ask them to comment on the the photo session, asking them to describe how they decided upon the location of the shot, the best angle, or any incident associated with the session that a reader might find of interest.

The goal is to enhance the viewer’s understanding and enjoyment of the photography and to provide a more intimate glimpse into the life of the photographer and the musician. Dargan’s approach to the website is drawn from the concept of “high-tech, high-touch,” a book by John Naisbitt, which introduces the concept that technology can help bring us closer as a community.

All of Dargan’s discover efforts seem to focus on quality.  For example, he searches for photographs in which the faces are clearly visible, i.e. not hidden behind microphones or musical instruments.

I prefer eyes that are visible, not closed, nor looking away. The expression on the face provides an insight into each person’s personality.

Dargan was surprise to find that a number of the photographs he chose were taken not by professional photographers, but by the artists and musicians themselves.

The key emphasis in the search for music is also on quality elements.  Dargan searches extraordinary talent and musical express. He listens for lyrics that are not only original, but have qualities and characteristics that are touching, heartfelt, plausible or engaging. 

In contrast, Dargan avoids photographs that contain disturbing elements, such as blood, or music that contains “excessive screaming or cursing.”

The music should engage the listener right away. The execution of the music should be crisp and should indicate a high level of musical skill. The quality of the instruments should be high. The vocals should be compelling and dynamic

Dargan says. 

Dargan has also been surprised by the number of extremely talented teenagers that he discovered in the plethora of musicians on MySpace and YouTube. While he generally he avoids direct contact with minors for obvious reasons, Dargan was particularly impressed with one young country singer named William Michael Morgan, so he contacted the boy’s father and obtained permission to feature William on the website.

Other examples of the talent featured on the website are

• David Bradley, a singer/songwriter who is also an oil engineer.  Bradley wrote some of his songs while stationed in the forests of Siberia and on an oil rig in the middle of the Caspian Sea.
• Colin O’Donohoe, an outstanding composer, conductor and musician who has developed hauntingly beautiful music involving wonderful instruments from the Far East.

Dargan is also sells “slots” in the slide show to attorneys and other industry professionals who specialize in the music industry.  Dargan chuckles at the thought of money trickling in from these professionals, particularly  attorneys, as Dargan, a patent-holder who has been involved in patent litigation, has sent tens of thousands of dollars to attorneys.  “Getting even a small amount of income from attorneys seems only fair to me,” he chides.

Dargan received a Bachelors degree from American University in interdisciplinary studies, and a Masters degree from Washington University in St. Louis, in Technology and Human Affairs. Dargan has one expired patent and one pending patent, both related to Touch-Tone interaction with computers, such as with text messaging. Dargan can be reached at nurturemusic@yahoo.com.

Starting in June, the author of this blog, Law on the Row  – 20-year entertainment attorney veteran Barry Neil Shrum – will be taking the show on the road!  On June 5, 2009, Mr. Shrum will conduct the first of a series of national seminars called MBA, Music Business Academy. 

Mr. Shrum initiated this series of seminars to address a perceived need in the industry: that a growing number of artists, entertainers and songwriters who might benefit from the expertise of an entertainment attorney, could not afford to retain an attorney and get the help they need due to upfront fees and retainers.  To this end, the mission statement for MBA is “music business education for the do-it-yourself generation!”  This unique series of one-day sessions will provide the upcoming and established mid-tier artist, musician, songwriter and other music industry professionals with a cost-effective method of obtaining an essential legal foundation for day-to-day music industry survival. 

The goal of the seminar is to create a sense of being in the client chair, Mr. Shrum will unravel the essential provisions of various industry-specific agreements  – bringing clarity to the legalese and identifying red flags in the “small print.”  Some specific agreements covered in the MBA session are:

*    the exclusive recording agreement (and the new 360 deal)
*    the exclusive songwriting agreement
*    the personal management agreement

For the do-it-yourself generation, Mr. Shrum will also explain the details and implications of guerilla marketing on the web.  He will explore the typical iTunes deal as well as other online distribution issues relevant to today’s guerilla marketers.

When asked about the seminar, Riq Lazarus, of Lazarus Management Group, said:

"Barry Shrum gets it!  The music business is undergoing radical change.  It is absolutely essential that today’s artists have an understanding of the legal issues facing them in this new era of "do-it-yourself" broadcasting.  And because he has the heart of a teacher, Barry’s immense knowledge and experience enables him to empower you with the understanding you need to protect your creations."

It is Mr. Shrum’s goal that attendees walk away from the seminar with a functional understanding of basic copyright, trademark and contract law — a virtual “MBA” in the music business!  Attendees will also receive specialized written materials as a continuing reference and valuable resource and are given the opportunity to purchase reduced rate legal services from Mr. Shrum.

The date of June 5, 2009 has been set for Chattanooga – the day before the Riverbend Festival – and plans are in the works for seminars in Denver, Colorado and Charlotte, West Virginia.   Other cities under consideration are Austin, Texas, Baltimore, Maryland, Boston, Massachusetts, Atlanta, Georgia, Philadelphia, Pennsylvania.  To see if your city is being considered, or to vote for your city, take the online poll.

General information about the seminars can be found here.  A detailed agenda of the Chattanooga seminar can be found at the event website:  www.musicbusinessacademy.info

By guest author, Cory Greenwell, Esquire*

“The customer is always right” has long been a mantra of the business world. Over the last ten years, consumers within the entertainment and software industries have begun to demand instant access to products off all types. Products such as the Apple iPod®, Sony PSP® and the Amazon Kindle® among countless similar products have created an ever-increasing demand for instant access to media content. As a result, the increase of digital distribution of media content has grown, with iTunes alone accounting for more than $5 billion dollars in the US and the industry continues to grow. As a direct result of the increase in volume of the digital distribution of media content, the distribution of physical media, such as compact discs that are customarily subject to sales tax fell sharply in 2007. The paradigm shift has resulted in a major sector of the entertainment industry acquiring virtually tax-free status or consumers.

In the 1992 landmark decision in Quill v. North Dakota, 504 U.S. 298 (1992), the court found that states cannot require out-of-state retailers to collect taxes from customers who live in states where the retailer does not have a related physical presence or “substantial nexus”. The basis for the decision was to give a “safe harbor” for businesses wishing to avoid the burdens of complying with the numerous state tax laws by transacting business online.

Seventeen states, including Tennessee, have updated their tax code and now impose a tax on digital downloads. The legality regarding the taxation of digital media appears to have been resolved in favor of taxation. After Quill, the responsibility rests on the individual consumer to report the transaction on their annual tax return and pay the appropriate amount of sales tax. Some reports indicate that nationwide state and local governments will have lost more than $500,000,000 in uncollected taxes by 2011.

The court in Quill recognized the importance of the emerging e-commerce sector and declared that alternative means to require retailers to collect sales tax, namely that 1) Congress may require retailers to collect sales tax or 2) States may require retailers to collect taxes provided that Congress has provided a mechanism by which to reduce the burden of retailers to comply with the tax laws of the several states.

Since the Quill decision, twenty-two states including Tennessee have joined together under the “Streamlined Sales Tax Agreement” to create a uniform tax code to reduce the burden of complying with the law of the several states. Among other things, the SSTA have created uniform rules regarding digital media. The National Conference of State Legislatures has called for Congress in its next session to review the Sales Tax Fairness and Simplification Act (H.R. 3396) which gives those states that have complied with the Streamlined Sales Tax Agreement the authority to require out-of-state retailers to collect sales tax for online purchases.

Rather than waiting on Congressional action, New York has attempted to circumvent the requirement of a physical location within the state by interpreting their law to include any “affiliate”. In the case of Amazon, affiliates include anyone who advertises on the website. This interpretation, if adopted by the several states, would negate the benefit of the safe harbor by exposing the online retailer to liability throughout the nation.

In conclusion, as the law presently stands, states may tax digital media, however it cannot require out of state retailers to collect taxes. If Congress adopts the legislation proposed by the members of the Streamlined Sales Tax Agreement as anticipated, the Quill case no longer prevents states from requiring retailers to collect sales tax.

*Jonathan “Cory” Greenwell is an intellectual property lawyer who practices in Louisville, Kentucky at the firm of Greenebaum Doll & McDonald.  Cory is the co-founder of the website Backseat SandBar and was featured on the WFPK 91.9 feature, “Off the Record.”