The FezGuys
Hello Songwriters, Are You Listening? - (part 3 of 3)
[ No. 54/55 - April/May 2001 ]

Note: This column was split into two for publishing in EQ, hence its #54 and #55 labeling for April and May 2001.

Welcome to Round Three of our dig into the current state of online music publishing. The last two months spent blundering about web sites of the Big Three music performance collection societies (ASCAP, BMI, SESAC) has taught us much about Frustration Management. We're ready but a little shy about seeing what the National Music Publisher's Association (NMPA), it's affiliate The Harry Fox Agency (HFA), and the Recording Industry Association of America's (RIAA) online tool SoundExchange have to offer us online. Let's start with the RIAA's SoundExchange. What is it and what does it do? How can it help me and why should I care?


Arriving at <> we're greeted by a very low-key design aesthetic, a little bit of text and some links. So far this is very refreshing from the giant screaming, Tokyo-by-night design of most corporate web sites. SoundExchange introduces itself as an "organization of large, medium and small recording companies...dedicated to making the process of licensing music and collecting royalties as accurate, simple and fair as possible for all involved." Well, that's good. But how does that rhetoric translate into real world use? Are they in direct competition with the aforementioned Big Three? Are they a shill for the recording industry? Touting a staff of "music industry veterans, Internet strategists, technologists, and royalty professionals" SoundExchange says it "licenses, collects and distributes public performance revenue for sound recording copyright holders within such digital channels as cable, satellite and the Internet." Ahh. So it leans toward modern arenas of music publishing. Well, a new approach is needed for sure. So, what are they offering that other companies aren't?

Describing themselves as "over 280 companies and their 2100 labels...from artist owned labels to Sony, Universal, EMI, Warner Music Group and BMG; Telarc, RAS, Zomba, Koch, Rounder and Naxos; from classical to hardcore and every genre in between," SoundExchange promises to "negotiate the best terms available for the use of your music" and provides their services on a "non-exclusive" basis (described as: "You are free to enter into "direct licenses" with webcasters on such terms as you may decide."). This last is also refreshing. Non-exclusivity goes a long way toward promising a decent level of service. Too often exclusive contracts lead to the "I've got you now and I don't care" business model. Think: power companies. Of course, non-exclusivity, open competition and free market capitalism at the level of The Public Trust is not guaranteed to fix anything. Sigh. Where will it all end? But wait! To paraphrase an old friend: "It's only music...there's no lives at stake."

SoundExchange wants to handle our publishing negotiations in the New Media. What's in it for them? What do they have that the other orgs haven't? In their favor, the service is free to "all sound recording copyright owners." All that's necessary to join is to read, fill in, sign and return the four small .pdf documents to SoundExchange. The documents are all detailed logistical contracts about where the monies will go and to whom. It's basic stuff. But there is one bit that catches our FezEye. Within the Authorization Letter is a portion of a sentence that reads: "you grant the SoundExchange the nonexclusive right to license the public performance of all of your sound recordings by means of digital audio transmissions." Ok, that's what we've been given to understand SoundExchange is all about. But the next portion of the sentence tells an extra tale. It says, in addition to the rights granted above, we also grant SoundExchange the right to the "...making of phonorecords of all of your sound recordings, or any part thereof (including the making of multiple such phonorecords of a single sound recording)." Huh? SoundExchange is going to manufacture albums? What does this have to do with the online music licensing? Suddenly, like the "hot kiss at the end of a wet fist*", we remember! SoundExchange is owned by the RIAA. The RIAA is the political lobbying face of the Big Five, no Four.... is it three labels yet? Anyway, it seems you can take the girl out of New Jersey, but you can't take New Jersey out of the girl. Any spawn of the physical recording industry is going to hold on to the ability to make plastic versions of audio intellectual property unless and until you pry that right from their cold dead fingers. Too bad. It seems totally beside the point for SoundExchange to feel it necessary to retain the right make CDs.

So, will they do anything about promoting our music? Or will they, like most of the other big, slow music business companies in the world, merely sit on their asses to see if our music is played on the radio and streamed over the Internet, then cut a check (after keeping a hearty portion for their "efforts"). Simply put, SoundExchange desires to be the middleman between the digital use of your music (e.g., webcasting) and the corporations (e.g., who wish to license it.

Webcasters take note: if you want to stream original sound recordings over the Internet there are some things you need to know. A lot of things actually. And, according to current law, you must do them. For more information on what may happen if you fail to obey the law, see the detailed list of legal repercussions at <>. For an exhaustive explanation of the current laws surrounding webcast licensing see: <>. Many of the latter page's informational points are standard: loop length, number of repeated performances within a given time frame, taking steps to limit the ease of copying and subsequent unlawful distribution, etc. This is a pretty decent resource on the convoluted nature of online music rights, but keep in mind it's the RIAA's perspective of the law and the DMCA (Digital Millennium Copyright Act) in particular. It was inevitable, of course. If you play the music, the folks with a finger in the pie want to taste the filling. There are some exceptions. Creating "non-interactive" streaming programs over three hours long seems to be all right to do for now, as long as the above-mentioned laundry list of conditions are met.

So, who should sign up for this service? They're aiming for people and organizations that own the master rights (the license) to sound recordings. If these license holders wish to have the use of their music in new media easily (and legally) paid for, SoundExchange is here to collect the money. Publishing is not their bag. Though it's never stated directly it would appear that SoundExchange plans to pay license holders once a year but will collect fees from licensees (webcasters, etc.) every month. That's good for them. They can play with all that cash any way they desire and once a year the license holder will get what's coming to them. Many questions remain unanswered, do they also plan on policing illegal uses of work they collect for? It would also be nice to know how revenue reports break out and whether or not individual members can request audits.

As a rebuttal to SoundExchange's offer of online and digital music rights management assistance, let's turn to a document published online by a group calling itself The Music Managers Forum (MMF, <>, and watch out for the silly Flash intro). MMF reminds us that SoundExchange, though styling itself an independent entity, is housed within RIAA's offices and SoundExchange employees are on RIAA's payroll. MMF feels this presents a conflict of interest. MMF also mentions that fees for processing licenses will be at the 20% level which is high-side for the industry standard. More tellingly, MMF points out that distribution of monies, as currently outlined on SoundExchange's web site, is on a "trial basis" and the final outcome depends on government approval. The MMF clarifies: "If the creative community is not offered a choice (an entity other than SoundExchange), the MMF can only conclude that artists are being offered direct payment by the RIAA for the sole purpose of placating artists temporarily while SoundExchange receives approval from the Copyright Office. The MMF is quite certain that after the first year of the proposed program, direct payment will disappear and it will be business as usual."

Strong words and plausible ones, and the MMF isn't alone in saying them. The non-profit Future Of Music Coalition <> (FOM) is on the same page. FOM goes so far as to say they have "no confidence in the RIAA's ability to represent the voice of musicians or to collect and distribute artists' royalties from the major labels who fund the RIAA." FOM "advocates for an impartial and accountable organization to guard the value of artists' webcasting royalties."

SoundExchange makes very clear that direct payment will be available to artists from licensees. But does this promise mean anything? Created from the record industry's political mouthpiece, SoundExchange comes from a crappy precedent for equitable handling of songwriter's fees.

The question remains: do webcasters and songwriters need SoundExchange? There certainly is a need for fair managing of webcasting royalties but the RIAA-sponsored SoundExchange doesn't fit the bill. Nice looking web site, though.

Harry Fox Agency (HFA) &
National Music Publishers' Association (NMPA)


HFA isn't about licensing music for Internet use by end-users. It is, however, relevant to the question: "Who do I get permission from to record a cover of a song and put it online along with the lyrics?" HFA lets you file paperwork to pay standard rates for pressing a CD containing a cover song or songs. Here's how to go about it.

Go to the NMPA web site and click on "HFA." From here click "Licensing." From this page we choose "Make a Recording" from eight choices. This takes us to a page called "Mechanical Licensing." Getting permission to record and sell a cover of a song is about acquiring the above-mentioned mechanical license. HFA is the clearing house for just about every song ever recorded in America. How they became this monumental musical monopoly is, no doubt, a fascinating story of power and greed. Sadly we don't have the space for that sordid tale here.

If you have a credit card and are making less than 2500 albums you can use the HFA online registration service at: <>. This will thread you through the HFA song file database (to make sure you and they agree on the song you're using). Lets search their database of "over 2 million songs!" Results are quick. There's the song we chose, along with a host of others that have similar titles. Next to the song result is a small disc that, when toggled, highlights which of seven options are available. "Lyrics," "Listen," "CDs," "Sheet Music," "License," Info," and "Other Recordings." Of these seven, "Lyrics," "Listen" and "Info" are not highlighted. We click on "CDs." Surprise! Here we are at Wonder what Amazon pays them for this link? No album match for our song but we're not looking to buy anyway. Back to HFA and a click on "Sheet Music." This fires us over to <>, the "Pepper Music Network" and a "no title found" message. Whatever. Wonder who's playing nice with whom to have all sheet music inquiries linked here? But we don't want sheet music either, we want permission. Actually, we've always been proponents of the adage: "It's easier to get forgiveness than permission." Of course, we also strongly believe in musicians getting compensated for use of their music. We continue our search. "Other Recordings" leads us to just that. Various musicians who have recorded versions of the same song. After fooling around with the song file database it's back to the form. We're required the answer to these questions:

a) How many recordings will you make
b) Manufactured in what country (Must be manufactured in U.S.)
c) Distributed in what country
d) Which type of Organization do you represent

After answering these questions we get asked for credit card info and, apparently, that's when we'll find out the fee. Sometime after this transaction is completed we apparently will receive an actual paper license in the mail.

If you do not have a credit card start at: <> and download the two .pdf documents: "Mechanical License Request Form" and "Application for New Licensing Account." These documents must then be printed on "plain white paper" with "only typewritten or neatly printed, block letter style requests accepted." Then you must mail or fax the forms to HFA.

A separate license (and an additional fee) is required for reprinting lyrics of the cover song with your CD. HFA doesn't handle this sort of licensing (probably too much overhead for them to make enough money) so they note that: "For these rights, you must contact the publisher(s) directly." It's great for smaller artists to have a direct connection to arrange this kind kind of license, but we shudder at the thought of quickly getting lost in a mega-corporate bureaucracy negotiating a license for Led Zeppelin's "The Crunge" with Atlantic Records. Where's that confounded bridge, indeed!

The good news is the mechanical licenses aren't very expensive for low run CD pressings, maybe the price of a tank or two of gas per song. The question is: how much of this money makes it into the pocket of the songwriter or rights holder? If only it were as straightforward as a biologist injecting a radioactive tag into the bloodstream to trace its path. In the meantime, the best we can offer is a link to HFA's "Royalty Payments Inquiry Form", which you presumably need to be a member owed dues in order to fill out: <>. Of course that means you need to sign on the dotted line to find out what you may or may not be paid! This is becoming so typical...

HFA's online services also offer a secure proprietary system for professional organizations (like record companies) that we'd have to apply to join by submitting a request on company letterhead and faxing or mailing back to their office in New York. We don't have to worry about that if we're only pressing 2500 copies or less.

What We've Learned

The options for buying, selling and granting licenses for music use online (what few there are) don't feel like simplification. The vibe here is merely more examples for the already weighty processes by which these organizations do their business. Without being a royalty professional, having a law degree in intellectual property rights or a lot of time and long experience in parsing the jargon of music publishing a webcaster or songwriter may well need to hire outside help. But if you're patient and focused, it can be done. Yeah, you may feel lost in a hideous vortex of language and law but take heart...Internet use is causing even these constipated organizations to rethink their way of doing business and, while the precedent has been problematic, the future holds promise!

Other URLs

As first reported in FezGuys #007, this is still a darned good resource: <>. A very practical Q&A series. Recommended.

For all things government-related to the subject: <> The final word.

The Fezguys welcome information, invective and ideas. <>

* - with apologies to the Firesign Theater


About the authors:

Jon Luini is a working technophile, a musician (bass player/singer) with full-blown facility and extensive experience on the Web and no free time. He is a co-founder of IUMA and MediaCast, co-creator of Addicted To Noise, and runs an Internet and music consulting and technology company, Chime Interactive (formerly Evolve Internet Solutions). <>

Allen Whitman is a working musician (bass player/singer/producer) with a keen, real-world interest in the practical use of the Web. Music credits include: The Mermen, "Brine-The Antisurf Soundtrack, biL, Deep Field South, Doormouse, Delectric and Drizzoletto. He has written for the San Francisco Examiner, Wired, EQ, Revolution, Yahoo Internet Life, Prosound News, Surround Professional, Replication News and others. <>

©1996-2003 The FezGuys™