Copycat, Tribute or Thievery? It's a tough call.

I Recently got a call from a a musician friend of mine. He was given an assignment to create two minutes of music in the style of a recording by a popular artist. The recording had a typical-sounding contemporary rock band accompanying a singer. It was hackwork—a formulaic composition and commercial arrangement with few, if any original musical ideas.

Nonetheless, the producer of the recording, and the musician assigned to create the "sound alike" piece were concerned about copyright infringement. It's a valid concern. What constitutes imitation in a sound-alike? I advised my friends to watch and listen to what Alf Clausen does on The Simpsons, and what Walter Murphy does for Family Guy.

But even Family Guy gets into trouble over this stuff once in a while. Personally, I can't see their song and When You Wish Upon A Star being that similar. This is one in the style of Gilbert & Sullivan. If it's in the style of a particular song, I don't know the original. If you know the Gilbert & Sullivan style song to be a parody of one in particular, please comment on it here.

Composers like Clausen and Murphy often write new songs that are really variants on songs we already know. A lot of people who hear these variants can even recognize the song on which the variant was based. By having modified slightly the chord progressions, melodies and harmonies and rhythms from the original song (and sometimes of a particular recording of a song) the composer gets "off the hook" on technicalities.

In normal-people speak: You can imitate without ripping off. So long as the "sound-alike" piece is sufficiently different from the original that people can tell them apart, there's usually no basis for a lawsuit.

My friend's call to me about this problem brought out several age-old questions:

1) When does imitation cross the line into stealing?
2) When does stylistic influence become "copycat"?
3) Can two people come up with the same idea, conveyed almost exactly alike, without one having "borrowed" from the other?

These are tough questions, and have been fought in and out of courts for hundreds, if not thousands of years. And it doesn't apply only to music. There are comedians, authors, even tap dancers, who have claimed, after seeing someone else's seemingly-similar work, that the similar work had been "lifted" from one of their own. It's often tough to tell.

Below are a few cases and/or general scenarios showing different manifestations of this problem.

• Harlan Ellison claimed that material for two of the episodes he authored for the series Babylon 5 were used in the movie The Terminator. He sued James Cameron (who wrote The Terminator) and won.


• Two key (musical, not lyrical) phrases in George Harrison's My Sweet Lord sound very similar to The Shirelles' R&B hit He's So Fine. The composer of He's So Fine sued, and George Harrison paid a settlement. George claimed he could have been subconsciously influenced by The Shirelles hit. After all, he and the other Beatles were avid fans of American R&B before they had "made it big". However, George was a terrific composer, who'd written many truly-original songs.


• There are many comedians who have written jokes about the same topics. Even comedians make fun of this, thinking of a lot of it as hackery. Many comedians use as an example the line "Why couldn't they make the whole plane with the same material the black box is made of?"..So many comedians have thought of that premise that it's considered a "hack" joke. Two people can observe and comment on the same thing without having heard one another's observation.

In Campbell v. Acuff Rose, Luther Campbell of the rap group 2 Live Crew admitted to have parodied the Roy Orbison hit Pretty Woman. However, he claimed that his integration of some of the lyrics into his Rap variant of it was sufficiently different from the original that it did no harm to the sale or reputation of the original. The U.S. Supreme Court agreed. Because of Campbell v. Acuff Rose, song parodists no longer have to get permission to use the work from the creator of the original the parodist is borrowing from. They must, however, pay the statutory royalties to which the original composer is entitled. (When Weird Al Yankovic puts new lyrics to an existing song, he pays the composers of the music. That's only fair.)

Note: Nothing in here is meant to be legal advice. If you need legal advice about this stuff, contact your friendly local intellectual property attorney. I know a whole bunch of 'em. Contact me if you'd like some help finding one.

Intellectual Property pirates haven't won, thanks to a win-win!

Futurist Alan Kay once said, "The best way to predict the future is to invent it."

My previous two blog posts decried the mentality that many people now see it as "okay" to steal music, movies, TV shows, and other intellectual property that others worked
hard to create and produce. I was beginning to think that since David Bowie said more than ten years ago that this kind of thing was going to happen, I became really upset. The NY Times piece is from 2002, but he's been thinking this kind of thing for a long time. The idea that creative people would non-consensually give away the things from which they now make a living was horrifying to me—and probably to many of you reading this.

But, it's a reality. Complaining about it won't make it go away. So what do we do? Crawl up into a little ball and die? I think the major record companies may be on the way there. But the rest of us—those of us who are small enough to "turn on a dime" can adapt.

I wondered how the internet service providers allow illegal traffic to pass through the conduits they set up—their little piece of the internet through which their customers get high speed access. There has to be some variety of accessory-like crime. I'm still not sure if I was right, as those with significantly more money/resources than I have chose not to test that, but instead, to get judgements against housewives.

I was beginning to resign myself to the idea that musicians, actors, authors, comedians, and so many other creators of works that enhance our lives would just have to make less money, or think of new ways to make a living. I knew there had to be some ways to prove the naysayers wrong. Yesterday, I found something that will help. This may be only a beginning, but it shows promise, and comes from someone who understands the challenges, and has the brains to help realize his vision.

Gerd Leonhard—a media visionary, hailed by the likes of The Wall Street Journal—said in his
book The Future of Music , and in many other places, that there is a way for creative people to make money other than live performance, and selling their recorded wares at gigs.

Do his thoughts carry over to creative works other than music? Damn right they do.

Gerd's new book is called Music 2.0. I haven't read it yet, but I will soon. It looks like a repurposing of existing material. Repurposing is a very a good thing, by the way.

I haven't met Mr. Leonhard yet, but I already like him a lot. If you create for a living, read his work. He likes you too, wants to help, and has some pretty good ideas on how to do so.

Although Leonhard and Bowie disagree on some critical points, they agree on some important things as well. Bowie's been expressing his views publicly about this subject for a long time, and Mr. Leonhard's been at it longer.David's an astute businessman, but Leonhard's coming at it differently. I'm rootin' for the (relative) underdog on this one, and think he may have something. I'd like to do whatever I can to help the cause of musicians making more money from their creative works.

Leonhard has shown that a "Download fee" assessed and added to every broadband subscription in the world, in addition to miniscule shares of web advertising revenues could go a long way toward letting what are now stolen works generate revenue for their creators. YouTube, Google, and so many others make a lot of their money selling advertising and "serving" the ads they sell.

An article in the UK's The Register highlighted an experimental model on a very small scale—80,000 people—on The Isle of Man in Scotland, in which the internet service provider assessed a small download fee, and added it to the monthly bill for broadband service. The assessment would be about $1.50 US per broadband connection per month. For that $1.50, a broadband customer would get unlimited downloading of music, movies, whatever copyrighted media are out there. It'd all be nice and legal, no one gets harassed, creators of art get paid for their work, and everyone gets to enjoy the fruit of creative artists' labors, while allowing them to create more.

If a YouTube page were tagged (labelled on the inside) as containing copyrighted and licensed intellectual property, and the Performance Rights Agencies such as BMI , ASCAP, SESAC, and now (thank God) SoundExchange—the first performance rights organization to pay attention to spoken word artists' broadcasts, webcasts, streaming media plays and narrowcasts—were to be the authorized representatives to license and collect royalties on the web, they could make money money for artists, distribute a whole bunch of it, and keep a nice taste.

It's a win-win. Google and other search engines could serve music as easily as it serves ads, and serve MORE ads as it licenses the content it serves. This isn't going to happen overnight. But it can happen.

There is much more to all this, and I will be investigating it as deeply as possible in the coming months.

Please send feedback. I'd love to know your thoughts on this matter!!

In future posts, I'll concentrate on repurposing, and why it's a very good thing.

New Music Economy—Part 2

In my last rant about piracy and the state of the record business, I took what could be called a pro-industry stance. Well, let's explore the other side of the piracy problem.

People will continue to steal music. So what do we do about it? Do we inform the public? Maybe, but that will be minimally effective, at best. Do we punish the uploaders? I suppose that'd be a good start. Do we punish/close down the conduits such as KaZaa, Limewire, or Bearshare? Without a doubt, we must do that before we do anything else.

The RIAA has chosen the stupidest possible path. They made an example of a single mom of four kids who shared 24 songs. They took her to court and won a judgement of $220,000. She got a pro bono lawyer to fight it, and lost again to the tune of $1.9 million. That's just ridiculous. Not only is the amount of money a staggering overkill, but it makes the mother a sympathetic figure. Threatening her internet service provider, thus putting her at risk of losing internet access might be smarter. The broadband provider would never risk its business by letting this woman maintain an account with them. They should close down her sources of obtaining the new music, as their basis for existence is illegal. They should make it easier for MySpace or whoever's putting the music out there to share some of it consensually.

But they're not doing any of that. Instead, they're coming down like the wrath of God on someone who'll never be able to pay the judgement, and who was caught having pirated twenty four songs. She probably has a lot more pirated music besides those twenty four, but the RIAA didn't even focus on that. It's a public relations disaster that makes the RIAA seem like a bunch of ogres. Let them go after the businesses that deal in pirated music. Cut off the supply. The demand will still be there, but a certain percentage will stop pirating as much music, and the $1.9 million will be more than made up via a much more sensible means.

Public Service Announcements by the artists themselves might not hurt either. .Lawsuits against soccer moms just make the RIAA look stupid, discredit the industry in the eyes of teenagers, giving them one more rationalization to continue stealing. I'd like to see the record business fight piracy effectively. No one loses with good PR. I hope the RIAA, the record companies, and the recording artists figure that out quickly.

The New Music Economy (hyphenate wherever you like)

I recently met with the founders of a startup record label. I'm 44 and they're in their twenties. Their view of how musicians use the internet is radically different from mine. I'd heard that musicians were all hyped on MySpace. I figured that they used MySpace because it was easy, and that the look of the page was secondary to the ease of posting content. I was wrong about that too. I wasn't giving the kids enough credit. Their thinking's more sophisticated than I'd given them credit for. (Sorry for having ended that sentence with a preposition. See? Old School.)

I still think that most of MySpace looks like a slum full of row-houses with the style and quality of the graffiti being the only difference between one house and the next.

Facebook is neat, clean, uniform, and overall, has content more relevant to me. That doesn't mean it's better for everyone. The kids want a means of expression, and Facebook allows less of that.

Okay, fine. I'm capable of admitting I was wrong, and hopefully I'm capable of learning and changing my view of things.

They also explained that, in their view, MySpace is a great way for the bands to publicize their material. They said that MySpace gives them free exposure to a lot of music, so they can determine (without paying for it,or working too hard to find it) whether they'd like to see the band live.

There's a much bigger issue in Gen-X and Millenial kids' view of intellectual property (and of how to publicize music). The current twenty-somethings have become accustomed to stealing music, and have found rationales for stealing which have insidiously crept into their culture. The rationalizations seem so deeply ingrained that they almost don't see it as stealing.

They appear, as a group, to be more okay with pirating music than previous generations had been. With Limewire and many other "services" it becomes so easy to steal that the kids don't see it as wrong. [Limewire is so evil and full of harmful things for computers (viruses, spyware, malware) that I won't even link to it.]

Not like I'm so holy myself. I don't mean to come off as holier than ..whoever, but this is one area that's important to me because I create things, and would prefer that people not steal them.

Perhaps many bands want fans to spread the word through whatever means possible, including the music-stealing sites and "services". Perhaps some bands say on their websites "Feel free to download and spread our stuff. We want to get our stuff in as many ears as possible.". I've not seen that type of notice on any band's website. Doesn't mean no one's doing it. But, you can be sure The Rolling Stones don't say that. Their stuff gets pirated as much as any other music.

The rationale these kids gave me was that the artists already know there's no money in making records any more, which is why most of them spend less on production today than they would have twenty years ago (if they were even old enough to have been in the business then). Production and distribution are much cheaper now, after all. Tools for making a high-quality record are available for only a few thousand dollars, and someone can put together a "great" studio for very little money today. (Of course, your definition of "great" may vary from theirs.)

Electronic distribution costs "nothing", and it's available on the "file sharing" networks. So.."What are we (the kids) doing wrong?"

The kids I met with believe that when a band releases a new record/CD, it serves as the basis for a new tour. There is a lot of money in touring, and the artists make their "real money" on tour. As such, by spreading the music around, the twenty-somethings help the artists to sell more seats, thus increasing tour profits. Tour profits lead to merchandise sales; so, again, helping to "promote" touring helps to increase merchandise and ticket sales, which is ultimately where the artist makes money anyway.

They also posed a social justice rationale. The big, bad evil record company charges $17 for a CD, and they keep majority of the $17. Very little goes to the artist, and the artist must use their piece of the record sale pie to pay back advances made by the record company. The kids I met with believe that, more often than not, the record company treats an artist's advance as a loan, and charges interest on it..

Helping the artist get out of debt is not too high on the kids' priority list. The kids say they'd rather pay iTunes for the one or two songs they might want from the CD, than buy the whole CD. Also, the artist sees approximately 70% of the recording sale by iTunes, versus a smaller percentage than that which they'd get from sale of the big bad record company's release.

[The (original) last word of the following sentence was censored by Facebook. So, I changed it both here and on Facebook:] That's a load of hooey.

I respect the kids who are starting the record company. I'm sure they have a lot of talent, and an understanding of the record business as it exists today. But I take issue with their positions. I figured that maybe I got it wrong, that I misunderstood. So I asked a few teenagers about their music consumption habits. The ones I asked tell me that they do buy songs individually, or that they listen to songs on MySpace without ever buying them. I think that's fine. If an artist puts a song on MySpace, but did not mean to distribute it beyond MySpace, and the kids go where the music is, that's just a sign that the band's getting popular. By having put the song up on the internet without a price tag on it, the artist is encouraging people to listen.

The social justice argument runs counter to the "recorded music is a promotional item for selling tour tickets.". rationale, but let's come back to that.

My research indicates that many artists' advances are interest-free., and that a good lawyer can make any such clause go away. Also, since production costs have come way down (part of the kids' argument), artists don't need advances as much as they used to. Any contract with a record label that doesn't involve an artist's advance, negates at least half the social justice rationale.

Let's look at the kids' rationales from another perspective:

John Lennon ain't touring. I doubt his estate agrees with the philosophy of "benevolence" espoused by the kids.

Billy Joel is 60. I don't think he's too thrilled about having to tour as much as he does at his age. Maybe he's not recorded (in part) because there's no money in it any more. His last studio album (River of Dreams, CBS 1993. Available on Amazon, iTunes, and lots of other places) sold in the tens of millions. Yet he tours with Elton John a lot. Elton is still recording. He's in a different position than most recording artists today.

I grew up Orthodox Jewish. A lot of Orthodox Jewish culture looks down upon the less observant variants of Judaism, and jokes that they have "Turned 'The Ten Commandments' into the Ten Suggestions."

Let's not ignore the obvious: The artists are charging for the recordings of their music. They're outright telling their fans that this recording costs $10 or $15. Do the kids think that's just a Suggestion? Do the kids think "Oh, the artists don't really mean that."?

Billy Joel wrote a great song called Christmas In Fallujah. The proceeds from the song are going to an organization called Homes for Our Troops —a not-for-profit organization that builds and adapts homes for injured veterans. Are the kids saying "Oh, no problem. We, the kids will tell all our friends about it, download it, spread it around, and somehow, Homes for Our Troops will make the money back on tour."?

Back to the slightly less obvious:

A band/recording artist can only tour so many days in a year, and can only sell so many tickets per performance. As such the revenue potential is much more limited. With digital distribution, manufacturing costs for recordings are down to almost nothing. The profit margin potential for the artist is substantial enough that stealing deprives them of more income today than it would have before digital distribution existed.

Concert tickets are $50 to $300, versus $10 for the digital version of the original recording. So the twenty-something rationalizes they'll spend $50 to see the concert (risking the possibility of not getting tickets) versus spending $10 for the record. Hmm..something doesn't fly.

The Grateful Dead (see reference below) used to have a "taping section" at their arena shows. They encouraged fans to tape and distribute shows. They believed that spreading the word among "the faithful" of the "Grateful" would increase sales. They were right. But that worked for THEM, and THEY authorized the taping.

There's a joke: "How many Grateful Dead fans does it take to change a lightbulb?....Grateful Dead fans don't change lightbulbs. They wait till the bulb burns out, then follow it around for twenty five years.".

The Grateful Dead had groupies on a par with few other bands. The "faithful" of the Grateful would buy the records. The "Dead", and their music-sharing marketing strategy were a phenomenon before file sharing, and before piracy became as easy as it is today. But again, "The Dead" authorized people to tape the live shows. They never authorized people to tape the records they (the Dead) made for sale.

I do NOT long for the days when record companies had an iron grip on the industry. I believe that "big corporate" is not out for the interest of the recording artists (except perhaps the interest it charges the stupider among them them on recording contract advances). That doesn't take away from the companies' right to demand money for their product.

The kids starting the record label told me that the only real means of directly making money from recordings is via synchronization licenses–the licensing of a recording for use in a movie or television show. There are also Performance Rights Organizations such as BMI, ASCAP , SESAC, and (most recently) SoundExchange, which distribute money to artists and publishers whose works are played in broadcast media and public forums (such as performance spaces, and as background music in clubs).

Needless to say, I disagree with the kids BIG time. I respect their passion and entrepreneurship, and realize that their rationale IS changing the record business. But I believe that this change is working to the detriment of recording artists. If record sales were through the roof, the fears would be less founded. There are fewer platinum (million-selling) records today than there were a few years ago.

So, to make money, today's record companies have to retain a large majority of publishing income. (Publishers are song pimps. They are the agents representing a musical work, and try to promote it for use in movies, television, performances by artists, and anything else that will get the work to generate income.).

In years and decades past, many record companies required some artists (who compose their own material) to sign over to the record company a percentage of publishing income to which they—the artist—would otherwise be entitled, in exchange for the record company allowing them to record the song, and have the record company get it out to the masses. This practice is abhorrent, but was tolerated for a long time.

The record label owners with whom I met want to write its artists' songs so that they can legitimately retain the publishing rights. That's fine. It's smart business. But if records aren't selling, why start a record label? Why not start a publishing company? Clearly these entrepreneurs believe they'll make money selling records. But with this new "understanding" of sales in the music business, how are these kids going to make a dollar with every would-be music consumer wanting to non-consensually barter their "promotion" services for the stolen music?

I like to think I understand the idea of promoting product versus selling it. Clearly I'm too stupid to understand "the new economy" as espoused by the Millen-Gen.

That's okay. Someone much smarter than me gets it. The great lyricist, author, and visionary John Perry Barlow beautifully and eloquently summarized the REAL new economy in his 1992 essay: Selling Wine Without Bottles . John was also a lyricist for many songs by the Grateful Dead—the SAME band who encouraged taping and distribution of The Dead's intellectual property.

Let's review: A new band distributes their product for free or cheap so that they can gain an audience. Check. Got it. I see the strategy.

Imagine now that the same new band tours, and word spreads about them. They work hard playing clubs for a few years, become bigger, develop a reputation, and they start wanting to charge for their intellectual property and product. They tell fans "Continue to download and spread our first two records, but the third one is for profit. You want it? You pay for it. This is what we do to eat, and we spent months making something from which you'll derive benefit. Please pay us the respect of not stealing our stuff.". What are the chances the fans will abide by the band's will after years of going by a rationale like the one above? Whether the kids steal it or abandon the band because they're charging for their work is, I suppose the kids' choice. But if they download the record when the band says it costs money, is that not stealing?

The new economy should be opening more doors for sales of music—every kind of music, in every imagineable form. CDs, DVDs, Blu-Ray, Sheet Music, MP3s, streaming media subscriptions...They should be thriving more than ever, given how easy it is to promote the work all over the world for next to nothing. But the kids are figuring that by distributing the music across a file "sharing" service like Limewire they might help to make a struggling songwriter in Brooklyn get a "cult following" in India, thus opening up tour possibilities on another continent, is very nice. But...if the guy's struggling and you like his music, you should pay for it unless the artist /owner of that music specifically requests that you distribute his music without compensating him. Stealing the Brooklyn composer's music would be like walking into a pottery shop, taking a nice clay bowl, and telling the shop owner "I'm not going to pay for this thing you made, but I'll tell all my friends about it, and they'll all come in and pay you for some other bowl. Or maybe we can organize some parties at which you can present your pottery. People will buy them there. But clearly you've put out this nice display table so that we could take the stuff.

Radiohead set up a "pay what you want" scheme for their most recent release. The kids with the record company admitted that they paid nothing when they'd downloaded the music. The official Radiohead website encouraged people to donate something, but allowed people to download it without paying. That was Radiohead's choice. They have the money to allow fans to take their music in the hopes that the fans will be come an extension of the band's publicity firm. Most artists who record their music in the hopes of selling it don't have those kinds of resources, and ask fans to pay a set amount.

Last point: Has this ever been done before? Is there a precedent for "come see my live shows, because that's where I make all the money"? Almost. Comedians have traditionally not sold very well. Lisa Lampanelli and Jeff Foxworthy are noteworthy exceptions. (Shameless plug: My company—Dragonfly Technologies—developed Lisa Lampanelli's website) Jeff Foxworthy's You Might Be A Redneck is the best-selling comedy album to date.

Most comics make their money on the road. Most make the CDs, distribute them electronically or in-person after shows, but don't expect the CDs to be a major source of income. I doubt they want their material stolen (either by other comics who use their jokes or by would-be consumers who steal tracks from CDs/DVDs), but it's not as big a source of income for them, and they (comedians) have almost always made more money on tour/performing than they do from CD/merchandise sales.

That there's a precedent doesn't excuse the kids' behavior or justify their position. Stealing music is just wrong, and taking food out of the artists' mouths (or a record company's coffers) isn't good for anyone. John Perry Barlow got it right. The real New Economy is about making it easier to sell intellectual property by not requiring it to take physical form. However well-intentioned the proponent of the opposite view may be, by promoting the idea of giving away the "wine" in the hopes that the gifts may some day promote trips to the vineyard, they'll perpetuate the old "starving artist" paradigm, leaving the artist drunk with only their own wine and AA to keep them company.

Rant over!

Comments?

Creative people being "ripped off by the white man"? Gee, that's news!

What I know about finance could fit into a thimble, and leave room for the Empire State Building. Nonetheless, a few things have become apparent, even to those of us who work in and around showbusiness,

The entertainment industry traditionally thrives during a down economy. That's not news. This down economy is different, though. Those who understand how and why the current situation came to be are saying it's worse than the cyclical ups and downs that previous Republican administrations had given us; in other words, the last guy was the worst we've seen in a long time.

Nonetheless, that doesn't affect musicians and other creative artist directly. Here's something that does: pension funds. Many musicians, actors, dancers, and others in the creative arts have worked at union jobs for part, most, or all of their careers. As part of employment with a union shop (such as the New York Philharmonic), they had a small pension contribution made on their behalf each time they performed. That pension fund was adminstered by God knows who, over decades. And now, union pension funds all over the country are invested in financial products that may have only ten percent of the value they had only two years ago.

Musicians: You're the first creative arts union to get the bad news. The American Federation of Musicians' and Employers Pension Fund recently announced that they're in really bad shape .

Since this is a crisis, we will defer the rant about how "Employers" could possibly be included by name /title in a union pension fund.

SAG and AFTRA are in slightly better (but not MUCH better) shape. If I understand their situation correctly, their pension funds merged around October 2008. Many of the union members of both unions wanted to merge the funds, but it didn't happen until very recently.

HOWEVER, as with many in SAG and AFTRA, there's some drama involved. The Actors Fund is suing JP Morgan for mismanagement/breach of fiduciary duties.

What a joy, huh?

People in all industries who looked forward to benefits after having spent thirty or forty years working union jobs, sticking by their unions–even during labor disputes, walkouts, and other tough times may not have anything left to which they can retire.

I don't mean to be an alarmist. What I know about money is...well, not a lot. But the stories I'm reading about failing banks, investment houses with stocks down to $1.50 or so, frighten me. Musicians, actors, dancers, or anyone else who worked a union job in the entertainment industry should be checking their pension funds often.

If it's possible to take your money out for a while, maybe that's the way to go. Talk to your investment advisor. If you don't have an investment advisor, get one. If you don't know how to get one, e-mail me, and I'll send you some information. I don't know about money, but I know people who do–and none of them are affiliated with a major bank or with Bernie Madoff. I don't claim to know about money. However, I care a lot about people who create art or who entertain for a living.

For those of you in other creative arts unions who are / were looking forward to some variety of retirement benefits, I'd love to know what your circumstances are.

Bottom line; CHECK YOUR PENSIONS!!!!

In Your Face!

Ask most successful people in showbusiness how they got to where they are, and you'll find that most of the answers will have some pretty similar themes. You'll hear things like "I could never see myself doing anything except playing the piano."; or "I want to act more than I want to breathe."; or "The only time I'm happy is when I'm on stage."; or "I knew since I was 5 years old that one day I was going to sing at Carnegie Hall.".

People who succeed in showbusiness have to want it more than say, the guy vying for Carpet Salesman Of The Year at the "Rug Shack" in Teaneck, NJ. They also have to be willing to starve for it, and to work really really hard for a very long time till it "happens". A few talk about being "discovered", like they're waiting for Magellan to come around. Those aren't the ones who make it.
Lana Turner is/was the exception to that rule. She got discovered in a soda shop, but that was "dumb luck". Don't count on luck.

So, how do you make it happen? Do you just keep perfecting your craft, working every little hole-in-the-wall club that'll have you? Do you write a blog, or screenplays for college films in the hopes that someone will find your work? Absolutely, yes! You take the work, and you "work" it. Get experience, perfect your craft. My friends who are comedians work their hometown clubs every night they're in town. The ones who are in New York, Boston and L.A. work six clubs a night sometimes.

NO doubt about it, you have to perform as many times as possible, in front of many many MANY audiences. You have to make mistakes, and you must consistently get better at what you do. What then?

Well, you have to get the word out. You have to be the best self-promoter you can be. No one will believe in you more than you do (at least until you get famous). Exploit every resource available that can help you spread your message. It's easy to do, and it's FREE!

The job of "talent scout" in the world of arts and entertainment has changed dramatically since twenty five years ago. A wise talent scout isn't just going from club to club, or open mike nights to find the next great talent; they're out here on the web, looking for every possible "place" in which the "next big thing"could be performing "on demand".

The web has SO many free means of advertising, promotion, publicity, that getting your name out there is easy. You've just got a lot of competition. So, assuming you can do something to merit the attention of a prospective fan or purchaser of your services; assuming you have to have "the goods" to be able to keep their attention longer than a few seconds, you've got a shot. Maybe your video will go viral, and will get you some attention. Maybe someone will forward something you've written to..."the right person", and things will start to happen. But you have to get "out there".

Most people have shorter attention spans today than they did twenty years ago. The number of messages that come our way every ten seconds is..mind-boggling. So your stuff better be a real attention-grabber, and an attention keeper.

Remember Lonely Girl 15? She was an actress who was hired to play the part of a, well, a lonely girl. She did this on YouTube. To date, her first video blog installment/webisode has had 1.83 MILLION views. It cost practically nothing to do what she did. The second episode had over 2.5 million views. Her least popular episode had a 150,000 views.

The series has had spinoffs for both the web and (European) broadcast television. See? Someone in their basement with captivating content, the desire to succeed, and the "grass roots" cleverness to market it well has a good shot. Lonely Girl 15's still makin' a dollar off what started out as a $500 a week lark.

In the age of YouTube, Facebook, and ...just the plain' ol' web, the means to reach out and GRAB your audience are are easily accessible, and are FREE-FREE-FREE!!!!!!!!! So how come you're not famous yet? It's about usin' the tools.

The self-righteous purists of the arts and entertainment worlds don't get it. About fifty years ago, Truman Capote said of Jack Kerouac's On The Road, "That's not writing, that's just typing.". Truman wasn't speaking out of professional envy, of course. Truman was already successful as an author when he'd made that remark.

There are many people out there whose "typing", gets published, and many others whose writing, is being seen 0nly by their parents, and the 75 followers of their respective blogs. Why, oh WHY is this injustice allowed to continue? Because the "typing" sometimes speaks louder than the "writing", and because most people don't know the difference between art and hackery.

People will judge what's in front of them. If you ask most people to choose between A and B, they won't think about C. "Coke or Pepsi?"..."Vanilla or Chocolate?". ..You might occassionally get someone who'll ask for "bottled water", or "butterscotch", or who might even pass on dessert, but most will pick one of the things you offer, because they assume that's all there is. If people will judge what's in front of them, get in FRONT OF THEM! Easier said than done? Yup. Nonetheless, it must become an important part of your daily activity.

Don't believe me? Coca Cola's the most popular soft drink in the world! They spent $2.6 billion in advertising in 2006. And they're already #1. You can be sure that one of the reasons they stay at the top is because their message is constantly out there; they buy the best possible message they can afford, and they can afford a LOT.

Another example in popular culture: Reality TV sucks! But a pretty large percentage of the world watches TV. The networks realized they could spend less on production by letting go of trivial luxuries like actors and writers, while increasing (or even just keeping the current) advertising rates. The broadcast networks were right: people will watch garbage on TV if that's all there is to watch on TV. But before the networks put something on, they hype the hell out of it. They spend tens-of-millions of dollars in advertising trying to convince you that watching people lose weight, or rebuild a house, or lose weight by rebuilding a house is better than some..."scripted" drama or comedy. They're just selling dreck. Collectively, they're offering you Dreck A or Dreck B. Either way, they win, and they continue to keep this junk ON the air because most Americans are buying their hype.

Cable TV subscriptions are up. There's never been a time at which premium content is more worth paying for than during a bad economy during which "Reality TV" is...a reality.

So, if you're a comedian, how do you get out in front of the world? You work every club, you play for every audience, and in your off-time, you update your website very often, you get a blog, you trade links with people, you tell every club at which you work that you'll link to them if they link to you. If you manage to get up in the morning, you issue a news release. Of course, you can't just write a news release and expect people to publish it. You have to work smart. This book will tell you lots about how to do it, even if you have no money.

So get good, then get great, but ALWAYS get your message in front of people OTHER than those for whom you performed that night. Use your creativity, ask your friends for help, ask me for help if you'd like.

Go get `em!

Musicians, poets, comedians: Continuing in the Gypsy tradition, in 2008 and beyond

Most performing artists are, in essence, independent business owners. Yeah? So what? So are a lot of people.

The strange and harsh thing about performing artists being business owners, is that performers base their livelihoods on their creative capacities. Performing artists are expected to run their business, perfect their craft, and do everything else it takes to get by, all by themselves (at first). Some are lucky enough to have help from family, friends, or others they trust on the business and logistics sides. To say it's difficult to nurture both sides of a creative person's business obligations is a tremendous understatement.

Creative artists have to worry about at least all of the following:
- Inventory
- Distribution
- Advertising/Publicity
- Health Benefits
- Travel expenses/reimbursement
- Payroll
- Taxes (personal and business)
- Unions
- Scheduling
- Wardrobe

and that's just the beginning.

Some who are married and have kids have the additional issues of child care, possible spousal neglect, and a host of other things most of us don't have to worry about—especially when combined with all the other facets of our business and personal lives.

If you own a hardware store, you have to know about hardware before you open up shop, you need to keep up with advancements in the field, you need to have inventory of stuff people need, and you need to be open so people can get stuff from you. It's hard work, but it's steady, and you can count on making a decent living at it if you stay in the same place, and keep providing the stuff people need. Can you imagine how much harder it would be for a hardware store owner to pack his stuff up in an RV and take his "show" on the road? Many hardware store owners can open up shop on the web, and be everywhere at once.

Somehow or other, people who need hardware will find a store. Performing artists have to go to the audience. With the exception of a few hotels in Las Vegas, or performance venues in Nashville, TN, or Branson, MO, performers aren't stationary.There's only so much of an entertainer's act they can convey through a website. That leads us to inventory. If you never thought of songwriters, poets or comedians carrying inventory, try this on for size:

Imagine if a hardware store owner had to build the store, and make every tool, nail, and whatever else in the shop himself. It's not the same gig anymore, is it?

A performer must create himself or herself from the ground up. A comedian or composer of music must write their material. Their music, poetry or comedy (respectively) is their inventory. Most throw away 75 to 90% of their material before they find the "gold". If the hardware store owner threw away 75% of his inventory, do you think he'd survive?

Every two years, the great George Carlin repeated the same cycle of getting new material for an HBO special. (He did fourteen of them, which, in total, represent thirty one years of work.)

In the last fifteen or so years of his life, he'd write a whole show (90 minutes or more of material), take it on the road, work it really hard for two years, and then perform it live on HBO, thus adding it to the canon of recorded comedy, and to his record collection—that is, the collection of records he'd made so that we could enjoy it. After he put a special out on HBO, he'd take a short break, then go back on the road using the previous year's material, and slowly start putting in the new stuff, with the new material eventually becoming a majority of the show.

I saw George live twice. Both times were during the beginning of a cycle. He'd just begun to write some new stuff, and was about 18 to 20 months from an HBO special. During the early performances in a cycle, he would read some of the newest stuff from notes. That's how "hot off the presses" it was. How exciting! I got to see one of the great comic minds of our time create, or at least refine his inventory.

After comedians or composers/performers write material, they have to perform it hundreds of times till they can do it in their sleep. The ones who are somewhat established can "get by" financially while developing new material. The ones who are starting out don't have that cushion. They're working without a net, or with a day job.

Imagine a comedian submitting a business plan to a bank, as part of applying for a small business loan. That's funny enough. Imagine the comedian telling the bank that 75% to 90% of what they create is going to be "tossed", and not "sold".

If you know a bank who would loan money to a comic, please let me know which one it is.

Many entrepreneurs have exploited creative souls' desire to be heard–to have their message brought to the world. The creative souls often look at the short term expression rather than the long term opportunity. That's part of what keeps them going from gig to gig. Little Richard talked about the early days of his career (and some of the later days) as if he had been a slave. His contracts were bought and sold (from one record company to another) for pennies. His last name is Penniman, but..he really shouldn't go living it out that way. He's 76 years old, and shouldn't have to be working quite so hard as he is now.

He could only be sold/traded that way because he cost the record labels so little in the first place. It's not a wonder that the great Little Richard–to whom both Lennon and McCartney owed much of their careers–is scrounging around playing dinner theater venues.

Don't get me wrong! I'm happy to have seen him live. But he looked like he was in pain. He's old. And being Little Richard up on the stage, even for an hour, looks like some hard work. To have to do that at age 76? That can't be fun.

So, why does this horrible tradition of exploitation and "gypsy"-style wandering continue? Are musicians and performing artists stupid? Are they gluttons for punishment; maybe just so attention-starved that they'd rather be on the stage and make no money than be a quiet conformist, average member of polite society?

No, I don't think that's it. I think it's in the "DNA" of creative people. Musicians, actors, authors, comedians have a holy mission. Their mission is to change their audience–to move them the way nothing but a great work of art could.

Billy Joel said it better in his 1993 Commencement Address to the graduates of Berklee College of Music—my alma mater, than I've ever heard/read anyone else say it:

And I hope you don't make music for some vast, unseen audience or market or ratings share or even for something as tangible as money. For though it's crucial to make a living, that shouldn't be your inspiration or your aspiration. Do it for yourself, your highest self, for your own pride, joy, ego, gratification, expression, love, fulfillment, happiness—whatever you want to call it. Do it because it's what you have to do. And if you make this music for the human needs you have within yourself, then you do it for all humans who need the same things. Ultimately, you enrich humanity with the profound expression of these feelings.

Once an artist has done that, their job—as far as that night's audience is concerned—is done. Performers of all types are holy people, in that they actively seek out audiences in order to help the audience grow.

That may not be how it appears on the surface. Dustin Hoffman, during his appearance on Inside The Actors Studio recounts how Sir Laurence Olivier answered the question "Why do we [actors] do what we do?"...Olivier's answer consisted of going nose-to-nose with Dustin, and saying, practically chanting "look-at-me, look-at-me, look-at-me, look-at-me..".

Okay, so actors (and comedians and musicians, and authors) want an audience. Without an audience their art wouldn't be very meaningful (, and they couldn't get paid). If one of their trees was to fall in the forest and nobody was there to hear it, the tree would have made a sound, but the artist wouldn't care as much about the tree if there had been no one there to have heard it fall.

But creative people's desire is to change the world with their contributions to it. The contribution couldn't be anywhere near as significant if you, an audience member, saw it every night. If you saw the New York Philharmonic every night for 20 years, you'd start falling asleep during performances pretty regularly—unless you were in the orchestra.

To me it's sad and ironic that standup comedians don't laugh very often. It's a pretty big no-no to tell jokes to comedians. The last thing they want to hear while they're cleaning house is "Hey, I'll bet you've never heard this one..."–especially if it starts with "Two Jews walk into a bar". I once told Judy Gold a joke of my own, but I did so in the context of conversation. She found it funny. And I know she found it funny because she said "That's funny.". Had she not found it funny, she'd mostly likely have made a face and a sarcastic remark.

Comedians don't laugh as easily as the rest of us because their whole job is to make us laugh. To them, hearing a joke (even a really good joke) is not unlike "talking shop". Their "resistance", if you will, to having a really hearty laugh, is higher than that of most people. That's sad and ironic, isn't it? I've been around some great comedians while they were just having casual conversation. They would talk about everyday stuff (taking their kid to school, or whatever), be really funny in recounting a story, but neither participant in the conversation was laughing at the other's remarks. I, as the guest of one of the comics tried not to be rude, but I'm not immune to the laughter—yet.

Dick Cavett said of my favorite comedian of all time—Groucho Marx—that it was sad that Groucho didn't have a Groucho to make him laugh.

Sturgeon's Law correctly states that "ninety percent of everything is crap." The "hacks" are 90%—the comic, or writer, or whatever, whose work doesn't make him or her grow, and whose work clearly doesn't strive to change or challenge the audience. It's the standup equivalent of According to Jim, or of most Adam Sandler movies.

Good comedians talk with contempt about "hack premises"—bases (for jokes) that are so overdone, tired, and clearly don't come from the soul, but rather from formulaic repackaging of common, everyday things that'll make a certain type of audience laugh. When the really good and great comedians work hard at their craft by baring their souls to an audience, they generally talk about something unique to them. They hope that you or I, as audience members, will be able to relate, or at least take something away—something that'll stay with you after the liquor from the club will have worn off.

Much of Steven Wright's humor's a little bit "out there". But it comes from inside him. One of his signature jokes is about his rented apartment, and how the landlord allows pets. Steven said "I have a pony". The great Emo Philips has a joke about suicide, religion, and the differences that separate us. Everyone can take something away from that joke. Me? I took away that the minute differences in people's beliefs can create chasms so wide, that two people may only get to know each other to the extent that they know the other's beliefs are different from their own. As a result, they may never get to serious dialogue. I'm guilty of it myself, and Emo made me even more aware of it. He taught an important lesson, but framed it in a funny context.

Jodie Wasserman talks about being broke. That's not easy, going on stage and talking about being broke. She was doing it before the economy tanked! It's one thing to tell your best friend something like that. Jodie says that in her act, to hundreds of strangers a day. She bares her soul on the stage, and hopes we will grow from it. That's an artist at work.

George Carlin said in 1977 (in "A Place for My Stuff") "That's my job: thinking up goofy shit...; coming around every once in a while, telling you what it is...".

Artists can't stagnate. They can't stay in the same place all the time. Even the great David Brenner and George Wallace who have indefinite engagements at Vegas hotels don't see the same audiences every night.

I have a sense that most Vegas audiences see standup comedy as something to do between bouts of addictive gambling, or sessions at the hotel's tanning salon. That's disgusting. That comedy clubs serve alcohol is not wonderful either. But hey, that's commerce, not art. If selling drinks gives the comedians a venue, it's a compromise that comics are willing to live with.

The truly great comics come around to where we live, and take us with them for a little while. Enjoy the ride. Take a snapshot in your mind. Don't take for granted the effort it took the musician/comedian/poet to get to the club/venue at which you're seeing them. They're doing what they do to help us grow. Thank them for the "ride", and for the opportunity to grow, and wish them well as they move on to help another little piece of the world.

Entertainment vs. art in a bad economy

I've always found some comfort (and opportunism) in the fact that no matter what crisis or problem the world (or some segment of it) is facing, someone's makin' a buck off it. Warren Buffet just invested $5 billion in Goldman Sachs—one of the two investment banks that got through this financial crisis relatively unscathed (is that an oxymoron?). When asked about it, he said "Be fearful when others are greedy, and be greedy when others are fearful." . He's wealthy, he does good things with his money, he's smart, and he's doing good for an investment bank. Why shouldn't he be rewarded?

Richard Nixon went to China when he was President. He brought back a piece of wisdom from there. He told folks that the Chinese symbol for crisis is one character that means "danger", and another character that means "opportunity". That's some pretty smart stuff. (I just saw another article that clarifies the "Crisis=Danger+Opportunity" thing. Nixon's "common wisdom" isn't 100% accurate.)

Who in showbusiness profited from 9/11? Filmmakers, comedians, musicians...We really needed to be cheered up. We escaped into things we found comforting, because the world was just too scary or too horrible for some of us.

How could we dare to laugh during a tragedy? We have to. We aren't laughing at the tragedy, we're laughing in spite of it. That's tough to figure out sometimes.

Comedians understand the concept of "too soon", and can even joke about that. The other night, Bill Maher (on his show "Real Time with Bill Maher", in the "Exit Strategy" segment) was talking about how India would be a good place to live if you want to stay thin. Behind him, as he talked about staying thing, was a picture of Gandhi. He didn't get a laugh. He asked "What? Too soon?".

One couldn't joke right away after 9/11—especially about the tragedy. Many comedians recount that it was Gilbert Gottfried at a Comedy Central Roast telling his version of the old joke "The Aristocrats" that gave comedians permission to laugh again. That was about 3 weeks after September 11, 2001.

Are entertainers being opportunistic? Absolutely not. The business world profits off the entertainers and artists, while the purveyors of entertainment product/services get paid the same whether times are good or bad. Comedians will always bare their souls the same way, whether during good times or bad.

Lots of charities took in money around 9/11. Politicians experienced boom times! (No kidding!) Some are still clinging to 9/11 to rationalize all kinds of disgusting behavior..but that's another story for another blog.

So what does this have to do with the arts and entertainment? It occurs to me that, during bad economic times we need escapism. Movies do well, despite many people cutting back on "unneccesary expenses"; comedy clubs often experience boom times because of bad times.

"Art" doesn't always make out as well as entertainment does.

Most musicians, comedians, actors and others who pursue their entertainment-industry related craft look on what they do as their art. Newsflash for the more serious among you: The sad truth is that most people who pay to see you /hear you don't care that it's your art. They want to take their minds off their problems, and they think you can help. They're not paying for art—especially not during tough times. Most people associate art with museums and auctions, neither of which are critical (for most people) during tough times.

Many artists—especially those who take themselves far too seriously—are offended by the idea that people will equate what they (artists) do with other, lesser forms of entertainment. Will I go see the circus, or will I go to a comedy club? They may even take it one step further. Well, both have people who'll make me laugh...The circus ticket is $40, and the comedy club is $20 + two drinks..and the comedy club is closer. Is it an insult to the comedian that someone's considering the circus as an alternative? I don't think so. I'm as big a fan of comedy as anyone I know, and I still see comedy as a form of entertainment for the masses.

Comedians perform a holy function in the world. They make us forget our problems, but that's not the holy part.

That comedians help us by baring their souls on the stage is not relevant to most of their audience. Jon Stewart's doing well. God bless him. He's a funny man, he's worked very hard for a very long time to get where he is. And he still works hard. On "The Daily Show" he doesn't usually bare his soul. No matter who is elected (or awarded the office of ) President of the United States, comedians will have plenty to joke about. With McCain, there'll be jokes about, teeth-whistling, anger management problems, a waddling walk, and just a general fuddy-duddiness. Needless to say comedians will have more material about Sarah Palin than they did about Dan Quayle. Damn! Who ever thought we'd have a president with more comedy-potential than Dan Quayle? The comedy bar's being raised pretty high now. If Sarah Palin gets into the Veep-spot, most comedians will be depressed for a short while, and then...the comedy will come flowing forth.

If Obama's elected, wow...It'll be a whole new thing. There will be race jokes, and that will upset some people. There'll be jokes about him being a "stiff". Joe Biden's not as old as McCain, but he's no spring chicken either.

Okay..I digress. If you play music, perform comedy, act, do magic, juggle, whatever...You'll do better in a bad economy if you go into showbusiness, and realize people will need you more in a bad economy. Don't be a sourpuss about most people using you for escapism. You have a job, and that's more than a lot of people can say in this economy. Be grateful, take the applause, and hope for that one great inspiration to create art that'll be remembered.

We have spoken, and SoundExchange has listened.

When last we left our heroes, your fearless leader (that's me), had taken a firm stance about performance royalties for spoken word artists. Musicians get money when their published intellectual property is played live in many public forums, and over mass media. Spoken word artists (like standup comics) should get paid too when their stuff is used in the same forum/media. Makes sense, no?

For the most part, spoken word artists aren't getting performance royalties. That's because traditional performance rights organizations set up their infrastructure decades ago, and they're set up to monitor music. In 2006, BMI distributed $732 million in royalties to member-composers and publishers. This year, it'll be closer to $900 million. Also, BMI is Broadcast Music Incorporated. Too many people in their organization already drank the "Music-only" Kool-Aid. (Poor Ko0l-Aid. It is so often associated with a destructive cartoon-pitcher that breaks down people's walls, and as the primary means of a cult mass-suicide.)

Well, the battle's nowhere near over, but the first real proof-of-concept that it's not only doable, but is good for everyone, is here. That proof of concept is in a relatively new company called SoundExchange. They are a performance rights agency for streaming media.

I'd first heard about SoundExchange three or four years ago. It seemed like a really nice idea. Who knew they'd ever get anywhere? They recently contacted artists we serve with notices that money is being held in their behalf. I found that strange, as these artists had never registered with SoundExchange. SoundExchange grants blanket licenses to, among others, Sirius and XM Satellite Radio, and distributes a large majority of the license fees among the creators/owners of sound recordings (rather than of published works).

Of course, the most important part of such a royalty payment is how it's calculated. We will examine SoundExchange statements soon. If there's anything really interesting in the first one we see, we'll make sure and post it here.

Maybe this is the first important step in getting all Performance Rights Agencies in line about this issue. Copyrighted, published work performed over mass-media or public performance spaces should be annuities to their creators/owners....whether those recordings contain music or spoken word.

Congratulations, SoundExchange on this bold first step.

Stand Up for Spoken Word Performance Rights!

The U.S. isn't doing so great economically. That's bad. Right? Maybe it's not all bad. Historically, entertainment has always done well during "lean" times. Vaudeville thrived during the Depression; "talking pictures" were only two years old; and people were lining up around the block to see Mary Pickford, Charlie Chaplin, The Marx Brothers, and all the other film greats of that era. In the 1980s, when Ronald Reagan was President, comedy clubs opened all over the country.

This time around it's not much different. People want escapism. But there is one huge difference between the '80s and today. We have exponentially more mass-media now than we had in the '80s. Many entertainers and performing artists are getting paid right and left because mass-media are using their intellectual property. But one important group of artists is getting shafted.

Some opinions may differ. BUT, we should all be able to agree on a few points:

Anyone who creates works of art must be compensated when those works are bought, sold, or otherwise used for the benefit of the general public.

One of the intended uses of commercial recorded works is broadcast—performance over mass-media.

One of the rules of commerce has always been (and will continue forever to be) that the greater the number of people who benefit from something, the greater the compensation to its creator/owner should be. Sound about right so far? Good.

Let's apply that to the arts and entertainment industry. Paul McCartney has been selling records for forty six years. He has probably sold more records than any popular music artist. He should be, and has been compensated accordingly.

Lucky for Paul he's also a music publisher (song pimp). He owns a lot of music. (If you want to find out just how much, go to that last link, and under "Browse All Titles", choose "All", then click the "Search" button). Every time a work he owns is played on the radio, or on TV he gets paid. He is a genius of music publishing. There was a time during which Sir Paul bought every college "fight song" he could get his hands on. Seem like a dumb move? Remember, college football is often televised. When Notre Dame plays football on TV, their "fight song" is played in the background at least once during every game. (Cha-ching!!) If Notre Dame plays a college whose "fight song" McCartney owns, he gets paid for use of both teams' songs. (Cha-Ching, Cha-Ching!!). Even if the game isn't televised, Paul still gets a smaller check (Cha!)

Funnily, and ironically, Paul doesn't own the music that made him most famous. He wrote it, but he doesn't own it. Michael Jackson does. Michael's been pimping out Paul's Beatle songs for use in TV commercials, stage shows, and LOTS of other stuff. Hello Goodbye has been used in at least four major national ad campaigns in the past two years.

When a song gets broadcast to millions of listeners, the listeners benefit, and so does the broadcaster. Accordingly, the creator /owner of the song should be paid. The U.S. Copyright Act as amended in 1909 says so. Although broadcasting as we know it didn't exist in 1909, those who amended the Copyright Act were looking out for the long-term interests of intellectual property owners. Yay! Well, it's time to look "long range" again.

(SPOKEN-WORD ARTISTS: We're comin' to the good part now. We've established the premise, now we're goin' for the setup.)

You might want to know who sees to getting copyright owners paid. Well...

In the USA, there are three Performance Rights Organizations (or PROs)—BMI, ASCAP , and SESAC. (SESAC is commonly pronounced "sea sack", by the way.) Their mission is to license the rights to broadcast music over mass-media and other public forums. They collect money from license fees, and disburse a large percentage of it to the composers and publishers whose work is broadcast/used in public forums. A composer or music publisher can sign up with any one of these three agencies. The agencies' respective payment and collection schemes/schedules vary from one another, and of course, change for those whose music is broadcast or played in public more.

If you look carefully as you walk into a club, bar, or performance venue, you'll likely see stickers with the logos of ASCAP, BMI, and/or SESAC around the front door somewhere. The sticker's an indication that the establishment/venue had been assessed a blanket fee for the year (to play music licensed by ASCAP, BMI, and SESAC). It's like the Good Housekeeping Seal of Approval for composers. Those stickers tell the venue's patrons that composers/publishers of the music they're hearing are being paid for the public use of their work. But the mass media pays a nice chunk too. Every radio station, TV station, or cable network pays the PROs. When the agencies start monitoring internet media for use of copyrighted material, the pie will get even more huge. Gazillionaire Google hasn't been asked to chip in yet. And Google owns YouTube. Nice, huh?

Well, it's nice if you're a composer of music. What if you are a professional public speaker? What if you've recorded audiobooks and hundreds of speeches that are broadcast on mass media or performed in public? Don't you deserve to get paid for the broadcasts and public performances of your work? We established earlier that anyone who creates works of art must be compensated when those works are bought, sold, or otherwise used for the benefit of the general public.

That should be the beginning and the end of it.

Can you think of a group of public speakers whose copyrighted work is regularly broadcast over mass-media for the entertainment of the general public? I'd like to name a few of my favorites, if I may:

George Carlin
Chris Rock
Judy Gold
Jeffrey Ross
Greg Giraldo
Lewis Black
Lisa Lampanelli
Eugene Mirman
Jonathan Katz
Demetri Martin
Laurie Kilmartin (pictured below)

Yup, standup comedians! They don't write music, but they do compose. (Actually, Demetri Martin does compose music, but it's a very small part of his act. That makes him an interesting case. More about him later. Maybe.) Their works are copyrighted, performed and broadcast just like any other creative work. The public benefits from hearing the works, and many radio stations, internet streaming sites, and television networks benefit from the public performance of standup comedy. And the comedians don't see a dime of performance royalties! Why the hell not?

I asked this question of representatives from all three USA-based Performance Rights Organizations. Two of the three (ASCAP and BMI) gave me the exact same response. They said they are set up to collect money for musical works only. They added that if there were musical accompaniment behind a spoken word performance, the composer/owner of the music, and only the music can be paid by a Performance Rights Organization.

How about an example that has nothing to do with standup comedy? Okay.

A few people over the years have performed /recorded Allan Ginsberg's Howl with musical accompaniment. Howl is perhaps the most famous poem of the past 50-75 years, and Ginsberg's estate doesn't see a nickel of performance royalties when those recordings are played on the radio, or used in a movie. (He probably gets a license fee for use of the poem, but his estate deserves every consideration that musicians get.) Were it not for Ginsberg's poem, there'd have been no foreground to which the musical accompaniment had been a background!

BACK TO COMEDY! George Carlin performed his written work Braindroppings as an audiobook. When the audiobook (which runs about two hours) gets broadcast over satellite radio, the radio station is filling its airtime with George's copyrighted material. Subscribers pay to hear it (on the ALL-COMEDY satellite radio stations); XM Radio or Sirius keep their subscribers happy. If George had done a straight reading of the book (no background sounds of any kind—just his voice), he wouldn't get paid for the broadcasting of his work. If a musician composed (for the audiobook recording) a little 6 note interlude to aurally indicate that George is moving on to the next chapter of the book, "Mr. Six-note" gets paid, and Mr. Conductor (that's George...See the link) gets zilch. That's horribly unfair, and it gets worse. (By the way, a lot of Braindroppings is repurposed excerpts of George's wonderful standup material. )

Demetri Martin is a wonderful standup comedian. He incorporates music into his act, which makes him eligible for performance rights royalties today. He may be able to open an interesting door toward income streams for standup comics. But that'll come later.

Venues from the size of Madison Square Garden, down to small clubs all over the country, pay ASCAP, BMI, and SESAC for annual blanket licenses to play music represented by those agencies. Any time a represented work is performed live, the composer/publisher gets paid a tiny bit. Billy Joel playing 25 songs at 30,000+ seat arenas for a year will get a bigger "taste" than the punk band playing at a 50 seat club on the Lower East Side. Billy and the punk rockers get paid twice (once for their performance, and a second time by the Performance Rights Agency), and the standup comic gets paid once—by the club/promoter, but not by a PRO.

George Carlin did 14 HBO specials, Billy Joel did two. George and Billy both got paid by HBO. Both George and Billy composed copyrighted works that were performed on television. Billy got paid twice by BMI. Once for the live performance of the works, and a second time for their broadcast on HBO. George didn't get paid at all by a PRO.

You're not a multi-million seller? That's okay. This can still make a small difference to you if you compose (and/or perform) spoken-word pieces for a living. Some comedians perform 10 minutes of copyrighted (and possibly published) material three or four times a night. Why can't a PRO represent the comics too? The comedy clubs are already paying blanket license fees to ASCAP, BMI and SESAC (for the radio and other music they play over loudspeakers/between shows). Why would 100% of the fees collected from a comedy club by PROs go exclusively toward music? 90% of what's performed or played at a comedy club is COMEDY—spoken word comedy.

Wouldn't it be in everyone's best interest to let spoken word performers in on the action? Most comedians get paid bubkes for their work in the clubs. Performance Rights money won't pay for a house in the Hamptons, but it might help a comic make the rent one month in a tight year.

But it's not about need. It's about what's right!

That the PROs aren't factoring in the spoken word artists' contributions to a given venue is just dumb—especially when that venue is a COMEDY CLUB. The ASCAP, BMI, or SESAC license fees for a comedy club are based only on the music that's played there. By not factoring in spoken word as the lion's share of the Performance Rights assessment for a comedy venue, BMI and the other PROs are saying that comedy is insignificant to a comedy club. BMI charges several thousand dollars a year to the average comedy club, based only on the music. That's crazy!

ASCAP is an acronym for the American Society of Composers, Authors, and Publishers. Aren't standup comics authors? (Actually, ASCAP meant to say lyricists, but the word Lyricist doesn't sound as good as Author; nor does the resulting acronym—ASCLP). Makes you want to put a CAP in their AS, doesn't it?

If you're read this far, I'll bet you have a few questions:

So how much more money do spoken-word artists/performers stand to make?

It's a good question, and I don't have the answer. The PROs use statistical sampling as the basis for how any of their members gets paid. There are technologies available that allow for a more accurate count of what's played where, and how often. But that's not in place yet.

Is it really that simple? Just get the PROs to factor in spoken word, and get a check?

Nope. It's not even close to that simple. It's a system, and ya gotta work the system to make something from it. Musicians have been working the system for decades. Spoken-word artists and their representatives should be in on this, and I'd like to help beyond simply writing a blog post.

Are you saying it's right to squeeze small businesses harder just to pay the standup comics?

Absolutely not. A restaurant that has a video jukebox full of Tammy Wynette, The Judds, and reruns of Hee Haw should not have to pay one penny toward a standup comic's performance royalties. But what if the jukebox has a little "Git 'R Done" or "You Might Be a Redneck"? Shouldn't Larry The Cable Guy and Jeff Foxworthy (respectively) have a tiny taste?

I don't even think that restaurant should be charged any more than they're being charged now. I think the BMI pie (mmm) should be carved just a little bit differently to give the standups their fair share. Who deserves more performance rights money from a comedy club, Jeffrey Ross or Britney Spears?

Isn't this a little pie-in-the-sky? Aren't you just dreaming?

Nope. History's on our side in this fight, folks. ASCAP was founded in 1914 by, among others, Irving Berlin—the Jewish guy who wrote White Christmas. Irving was a prolific songwriter, and wanted a central agency to monitor (and collect money for) public performance of his many works. Other songwriters were in the same boat, and wanted in.

ASCAP was considered "elitist", as it didn't acknowledge the legitimacy of country and folk music, it didn't allow membership to black composers, and excluded lots of other people, for reasons passing understanding. BMI was formed to meet the needs of those whom ASCAP didn't see fit to represent. SESAC was founded in 1936, BMI in 1939. Over the years, PROs have ventured into many new territories to see that their memberships expand, that more musicians are getting a taste, and that they all make more money. Inclusion is within our reach. But we haven't made our case yet.

How do we get started?

I have some of the broad strokes. It has to start with one PRO. Which one?

ASCAP is still snotty, and BMI is still a lot better for big-timers. SESAC is the smallest of the three, the most open minded, and therefore may hold the most potential for spoken-word performance rights. I don't know yet. It's still early in the game. I believe that if they're approached the right way, all the PROs will want the spoken-word creators in eventually.

Conclusions:

It's way too early in this game to determine with any accuracy what the real performance royalties numbers could be for spoken-word artists/writers. I asked some knowledgeable people to help me "do the math". If we took all the comedy being performed live in clubs and theaters all over the United States, added to that all the comedy broadcast over terrestrial radio and satellite radio, added to that all the standup comedy and other published, copyrighted spoken word that's broadcast on cable TV (that's BET, HBO, Showtime, Comedy Central, and on and on and on), the comedians stand to bring in tens of millions of dollars a year (collectively).

And the "Wild West" of the Web is hardly regulated right now. BMI has plans to turn the internet into a serious source of performance rights revenue. But execution is a lot more difficult than making a plan. The spoken-word people's time is now—while the PROs are still figuring out how to collect and fairly distribute all that internet money. Statistical sampling may not even be necessary anymore, because it's so easy to track how many times a copyrighted/published work has been streamed on the web.

Let's get in the door now, before the internet media get really monitored, so that we can be counted. When Google starts kicking in as they should; when Apple becomes one of the world's largest media "casters", there will be more money for everyone. All you authors have to do is claim your fair share.

Comedians, please weigh in. Could you use a tiny slice of the millions of dollars the PROs stand to collect from registered spoken-word works? Are you ready to work for it (or set your people to work for it)? Will you join me in helping you (and other spoken word artists) get paid for the broadcasts and public performances of your material? This will be a herculean effort, is likely to take a decade, and may not result in big money to the average spoken-word performer. But it opens the door to greater possibilities where there is now nothing. That door's going to close pretty soon. Google hasn't really been told to pay up yet. Neither have most of the website owners exploiting intellectual property without paying for it.

Let's talk to the WGA. Maybe they can help in this battle. Let's talk to all the people we know with the connections to make things happen. I'm your sister-in-arms, and will do whatever I can to help. If you've found this helpful, have a question, or just want to insult me, leave a comment, or drop me a note. If you really liked it, forward it to a friend who might benefit from it. Thanks for your attention.