LIFE AFTER DEATH:
Even after Death a Performer’s
Estate Generates Revenues!
In this edition I am going to comment on some events that illustrate how the intellectual property of an artist, even long after death of the artist or the breakup of the band, can continue to generate significant revenue.
The first is the recent release of another album of studio material from Jimi Hendrix. The new album, “People, Hell and Angels”, is being announced as the last of over a dozen posthumous albums of studio material. However, Hendrix fans should not mourn for too long – the controllers of the Hendrix material, Jimi’s sister, Janie Hendrix, and the two (2) producers, Ed Kramer and John McDermott, have other material to mine. “There is plenty of material left . . . a wonderful selection of live material.” Hendrix lives on!
Another development highlights the value of a source of revenue that is often overlooked or forgotten – memorabilia. The Beach Boys recently won a court case regarding a collection of Beach Boys memorabilia including handwritten scores, photos, letters and other curiosities. There were over 2,000 items and the collection was valued between $6 million and $8 million. However, it was a bittersweet victory because the items were then turned over to “investors, lawyers and corporate entities.” Moral of the story – photos are more than just memories.
If it regards life after death in the music arena, there is no entity more “alive” than the Beatles. Anything connected with the Beatles brand is an automatic money maker. The Beatles last released an album in 1970 (“Let It Be”, although it was recorded before “Abbey Road”) and, yet, the Beatles, collectively and individually, consistently remain among the top ten (if not top five) of revenue generating entities. Now, the Beatles will return to Broadway – a “concert show” called “Let it Be” will be coming to Broadway in July, 2013. It is the second time that the Beatles were on Broadway – “Rain: A Tribute to the Beatles on Broadway” ran on Broadway from 2010 into 2011.
The moral of all of these little tidbits? The band plays on!
 James C. McKinley Jr., Exhuming the Last of Hendrix’s Studio Sessions, New York Times, March 4, 2013 at C-4.
 James C. McKinley Jr., Beach Boys Win Fight, And Lose It, New York Times, April 27, 2013 at C-1.
 Dave Istkoff, Arts Briefly – Beatles Concert Show Coming to Broadway, New York Times, May 9, 2013 at C-3.
Digital Downloads & Streaming Services.
Section 106(6) created a performance right in musical that is delivered from a digital platform. It is a new revenue stream that resulted from technology expanding the types of delivery systems through which music could be delivered. Over the last two (2) decades, digital technology, the internet, and new playing devices, have resulted in the death knell for the classic “album” and cd sales. Most people now purchase their music from one (1) of two (2) sources: (i) downloads from services such as iTunes; and (ii) listening to streaming services such as Spotify or Pandora. Ben Sisario reported in the New York Times, “A decade after Apple revolutionized the music world with its iTunes store, the music industry is undergoing another, even more radical, digital transformation as listeners begin to move from CDs and downloads to streaming services like Spotify, Pandora and YouTube.”[i]
These royalties are collected by SoundExchange, a not-for-profit entity entrusted by The U.S. Library of Congress to collect and distribute these digital performance royalties from: (i) satellite radio (such as SIRIUS XM); (ii) internet radio; (iii) cable TV music channels; and (iv) streaming sound recordings. By the end of 2012, SoundExchange had passed the $1 Billion mark in royalties paid to recording artists and record companies since its inception in 2000.[ii]
However, these revenue streams still have a ways to go before they become very profitable for the artist. Spotify and Pandora are becoming billion dollar businesses, but the artists are receiving literally pennies. The New York Times reported on the example of Zoe Keating, an independent musician from Northern California.[iii] The numbers painted a stark picture of what it is like to be a working musician these days. After her songs had been played more than 1.5 million times on Pandora over six months, she earned $1,652.74. On Spotify, 131,000 plays last year netted just $547.71, or an average of 0.42 cent a play.[iv]
[i] “As Music Streaming Grows, Artists’ Royalties Slow to a Trickle”, Ben Sisario, New York Times, A-1, 1/29/2013.
[ii] “Royalties From Digital Radio Start to Carry Some Weight”, Ben Sisario, New York Times, B-1, June 18, 2012.
[iii] “As Music Streaming Grows, Artists’ Royalties Slow to a Trickle”, Ben Sisario, New York Times, A-1, January 29, 2013.
Wishing everyone a
wonderful, rich, and peaceful
I have commented in the past on the battle for performers to get some type of royalty when a song is played on terrestrial radio that they performed.
For example, every time that Sinatra’s version of “New York, New York” is played on the radio, the writers of that song receive a royalty. Under the old business model, Sinatra and the record company would make money selling more records. However, record sales are not what they used to be and performers and record companies are suffering. It is no accident that Sinatra’s daughters are leading the fight.
A recent deal between Taylor Swift’s record company, Big Machine, and Clear Channel Communications (“CCC”) might signal a significant turning point. In the deal, CCC will pay a performer’s royalty to Big Machine every time that a song that Swift performs is played.
The battle arises from the fact that when a song is played on terrestrial radio (satellite and internet broadcasters already pay a “performer’s” royalty to the record companies) the songwriter receives a “performance” royalty. The royalty arises from the fact that the owner of the copyright (generally the songwriter) has a “performance” right – he/she is the only person that may perform the song in any type of medium, live or recorded. In contrast, the performer of the song does not receive any royalty when the song is played on the radio.
Previously, there was a symbiotic relationship between the radio station, the record company (and the performer), and advertisers. The record company would provide records to the radio station for free. The radio station would play the records, increasing sales for the record company. The radio station would get listeners and be able to sell advertising.
So, the songwriter made money from the “performance” royalty. The performer of the song made money from his royalty on selling records. The record company made money from increased record sales. The radio station made money from advertisers. And, finally, advertisers made money from increased sales of their product.
That beautiful system came crashing down with the advent of competitive mediums to terrestrial radio, e.g., downloads and satellite radio. The wink link became the record company. Record companies have been facing eroding relevance for going on two (2) decade and record sales have fallen dramatically.
The Big Machine-CCC deal may signal a break in the dike of this royalty stream for recording companies and performers.
UPDATE ON EMI SALE
I have commented on the saga of the break-up and sale of the EMI Group (“EMI”) in prior e-zines. A major milestone has occurred with the approval of the sale by United States and European agencies that oversee competition and anti-trust matters.
As an initial point, it is important to remember that the sale of EMI had two components: (i) the sale of the music recording division of EMI (“EMI Music”); and (ii) the sale of the music publishing division of EMI Music Publishing (“EMI Publishing”). Each component was sold to a different owner: (i) EMI Music went to Universal Music Group (“Universal”) for $1.9 billion; and (ii) EMI Publishing went to the Sony Group (“Sony”) for $2.2 billion.
Each of the new owners had obstacles to overcome. Sony’s were of a contractual nature: because of the various pre-sale publishing agreements in place, most notably with the estate of Michael Jackson, the deal is a complicated one with EMI Publishing being administered by Sony/ATV, the joint venture between Sony and Jackson.
Universal’s problems came from concerns of anti-trust and anti-competition. The deal would have given Universal, already the largest of the Big 4 (now Big 3) labels, 40% of the market. Both the European Commission (the “EC”) and the Federal Trade Commission (the “FTC”) reviewed the terms of the sale very carefully.
Recently, both the EC and the FTC approved the sales. But, Universal had to make a huge concession: it must sell almost third of EMI Music’s assets. That includes the crown jewel of EMI Music – Parlophone – and the rights to other artists such as Coldplay and Pink Floyd.
However, even with those concessions, many are not happy. Universal has got even bigger. And, one more major label has bit the dust. Also, many remained concerned about the final home of the assets to be sold.
The ramifications of the sale and the subsequent battle over the assets of EMI provide a fascinating case study of the state of the music industry. I will continue to provide updates as events unfold.
I am proud to announce that I will be participating in an Entertainment Law Seminar on January 22, 2013 in Phoenix, Arizona. The Seminar is sponsored by the National Business Institute and CLE credit will be available.
The Seminar will cover a variety of topics including copyright, trademark, nuances of entertainment contracts, and the pitfalls of entertainment financing. The Seminar will go from 9:00 a.m. to 4:30 p.m., with small breaks in the morning and afternoon and a break for lunch.
The Musical Instrument Museum (see photo below) in Phoenix, Arizona will host the Seminar. The Museum is located at 4725 E. Mayo Boulevard, Phoenix, AZ 85050 and the phone is 480.478.6000. Special tickets are offered for students.
Check out this link on the Museum:
Hope to see you there!
WHAT DOES IT TAKE
FOR ARIZONA TO WAKE UP!!
Since 2004, when New York began offering tax credits to the film and television industry, producers have spent more than $7 billion in New York.
[Recently], New York's Governor Andrew M. Cuomo signed legislation that will increase the current incentives offered by the state to persuade more film post-production activity.
"New York State's program of incentives to attract film and television productions to New York has been a tremendous success, generating billions of dollars in economic impact and supporting hundreds of thousands of hires," Governor Cuomo said. "However, there is potential for this industry to make new investments in communities across the state and in doing so, help make New York the television and film capital of the world. With this legislation, New York is inviting producers, directors, and editors from across the nation to bring their post-production work right here to the Empire State. The 'new' New York supports business and this law is a clear sign that the state stands ready to help enterprises that are looking for new places to invest, expand, and create jobs. I thank the sponsors for their hard work on this new law.”
If Arizona had received just one-quarter of that $7 billion, that would have been approximately $1.75 billion for the Arizona treasury. How many teachers, firemen, and policeman would that have paid for?
TWO EVENTS ROLL
THE ROCK INDUSTRY!!
SETTLEMENT ON DIGITAL ROYALTIES!!
The other major development regards the determination of what royalty an artist gets from a “download” of a composition. Most recording agreements will pay a royalty of 12% to the recording artist for every “sale” of the sound recording. Most recording agreements give a royalty of 50% when the sound recording or composition is “licensed”. The dispute centers over whether a download is a “license” (50%) royalty, or a “sale” (12% royalty). As you can obviously see, there is quite a difference between the two royalty rates.
Previously, Eminem won a suit where the court ruled downloads were “licenses”. Another group of artists brought suit against Sony BMG. Sony BMG settled with the artists for $8 million dollars.
Three things are immediately apparent: (i) other artists are going to sue to get their share of the pie; (ii) with the precedent of Eminem, the record companies are going to be reluctant to litigate; and (iii) no matter whether litigated or settled, the record companies are facing another huge financial hit.
I would not be surprised to see a variety of record companies file for bankruptcy protection in the next year or two.
Kevin Kline, Jared Sakren (Artistic Director for Southwest Shakespeare Company (SSC)), and myself at Mr. Kline's special benefit performance for SSC at the Mesa Arts Center on April 14, 2012.
The evening was one of the most memorable experiences I have ever had in the theatre! Mr. Kline answered questions for a good hour after his performance and was thoroughly charming and funny. He recounted stories from his film and stage career including snippets on Meryl Streep, Will Smith, Kenneth Branagh and others.
Just a wonderful, wonderful night at the theatre!