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Electronic Media 2.0
Fall 2007
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Electronic Media 2.0* is a quarterly news bulletin provided by the American Symphony Orchestra League to keep its members informed of the relevant changes, trends, and developments that affect their electronic media activities.
In this issue, you’ll find information explaining the latest tech terms, a look at how electronic copyright protection can impact orchestras, and answers to questions from League members about digital material on the Internet. Plus, in a thought-provoking article, Joe Kluger applies the insights and strategies of Chris Anderson’s influential book The Long Tail: Why the Future of Business Is Selling Less of More to the performing arts.
The "2.0" title expresses the belief that there are "next-generation" technologies and electronic media available now that can help symphony orchestras attain their organizational goals.
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Electronic Media Resources
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New technologies, copyright issues, and fresh developments are emerging daily, providing challenges and opportunities for anyone involved in the use of electronic media at orchestras. To help you navigate this maze of information, here are a few articles and websites that cut through the clutter.
1. Glossary and general information
To understand the latest terminology, take at look at these websites:
a. Billboard.com: has a compendium of terms relating to music
and the music industry.
b. About.com: Digital Music has a glossary of frequently used terms in digital music.
c. http://mp3.about.com/ Click FAQ and Glossary on the left-hand side menu.
d. HP Digital Music Glossary provides another listing.
2. Music copyright blog: Using the Internet as a means of distributing copyrighted content can be confusing. A great resource about this complex topic is the M.E.L.O.N. Blog by San Francisco attorney Anthony Berman.
It includes articles and information on copyright, trademark, digital-rights management, music law, music business, Internet law, and technical news, plus more. There are also links to related Web sites. You can find their current info and how to subscribe at http://www.beatblog.typepad.com/
3. Books of interest
In addition to The Long Tail by Chris Anderson, described later in this Newsletter, there are two source books with a great deal of information about the music business and the licensing of music for use in electronic media.
This Business of Music
The Definitive Guide to the Music Industry
New 9th Edition
By William Krasilovsky and Sydney Shemel
with contributions by John M. Gross
Published by Billboard Books
Retail price: $29.95
Kohn on Music Licensing
Third Edition
By Al Kohn and Bob Cohn
Published by Aspen Law and Business
Comes with a CD–ROM that provides more
than 60 model contract downloadable forms
Retail Price: $209 (from Amazon.com)
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Copyrights, Your Rights, and YouTube
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The use of copyrighted material is one of the more complex areas of intellectual property law, particularly in the context of how to interpret provisions of the U.S. Copyright Act covering the electronic distribution of digital material. The topic is evolving constantly, and disputes about copyrighted material on the Web are making headlines; the results may affect how your orchestra uses copyrighted material online. In a recent newsletter sent out by the New York-based law firm of Proskauer Rose LLP, attorneys William M. Hart and Louis M. Solomon outline the issues in the current lawsuit between Google (YouTube) and Viacom regarding Viacom-owned material on YouTube. If you are planning to put material on your orchestra’s Web site, or find your own material on another website without your permission, be sure to contact your legal counsel.
The article is provided by the kind permission of Proskauer Rose LLP. It is designed only to give general information on the developments actually covered. It is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion.
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Electronic Media Consulting Services Update
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Since the League began providing electronic media services earlier this year, we have responded to more than 165 individual requests for assistance from symphony orchestras of every size throughout the country. Most of the advice to League member orchestras was provided via e-mail or telephone, although seventeen orchestras took the opportunity to have a one-on-one consultation with Joe Kluger during the National Conference in Nashville. Additionally, 32 people attended the Orchestra Leadership Academy “What’s New in Electronic Media” seminar, led by Laura Brownell, Joe Kluger, and Robert Levine, and 25 people attended the Innovations Expo roundtables on the new Live Recording Agreement.
The requests for assistance covered a wide range of topics about the planning and implementation of sound recording, radio, television, and Internet projects. We have helped orchestras address strategic questions, such as which electronic media activities make the most sense for them, and practical questions relating to the business, technical, production, distribution, and rights-clearance issues [1] they face as they develop these projects. For a sample of the kinds of questions that have arisen, and how we have answered them, see the FAQ section below.
If your orchestra has a question about an electronic media activity [2] not covered in the FAQs, please do not hesitate to contact both of us by e-mail at the following addresses:
Joe Kluger:
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
Michael Bronson:
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[1] Any consulting services we provide regarding the electronic media rights clearance issues encountered with artists, composers, and musicians are not included in the scope of our agreement with the League and are covered by a separate consulting agreement we have with the Symphony, Opera, and Ballet Orchestra Managers’ Media Committee, the group representing employers of musicians in the negotiation and interpretation of national electronic media collective bargaining agreements with the American Federation of Musicians (AFM). [2] Our consulting agreement with the League does not include meetings (except at Conferences) or ongoing relationships with individual institutions, legal advice, or any involvement in collective bargaining negotiations.
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Electronic Media FAQ
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Q: The music publisher has asked for an additional music rental fee because we are broadcasting the copyrighted work on radio and streaming it on the Internet. Does copyright law require us to pay this fee?
A: This is a business issue, not a copyright issue. There is no part of the copyright law that requires you to pay an additional fee to the publisher when the printed music you rent is used for more than one purpose. There IS a copyright in the broadcast on terrestrial radio of the actual music, but the copyright holder (composer or publisher) already receives a pro rata share of the blanket license fee paid by the radio station to ASCAP or BMI. Even though there is no copyright law that requires you to pay the extra music rental fee, the publisher does own the printed music, so there is nothing to prevent them from asking you to pay a fee. So, your options are to negotiate a mutually acceptable arrangement (with or without additional financial consideration) or to perform a different work. (We will be addressing the increasing complex rights clearance issues with composers and publishers in future Electronic Media 2.0 Newsletters. If you have questions, consider consulting with a copyright attorney.)
Q: Should we use the new Live Recording Agreement (LRA) or the Audio Internet Agreement (AIA) to determine how to structure an agreement with our musicians for an audio downloading project?
A: If you want to offer physical product, such as CDs, in addition to downloads, the Live Recording Agreement applies. If you are interested in offering your music only on the Internet (streaming and/or downloading), the Audio Internet Agreement applies. Please note that the LRA and AIA agreements cover only the services of musicians. You will need to have agreements with other participating performers (conductor, soloists, and chorus), as well as the composer or publisher of any copyrighted works.
Q: Can we put a three-minute video clip of our orchestra on YouTube?
A: Yes, but not without getting permission from all the rights holders, including the participating performers (conductor, soloist, musicians), as well as the composer or publisher of any copyrighted works. (See article on YouTube by Proskauer attorney Bill Hart below.) This also assumes that you are a signatory to the AFM Audio-Visual Agreement or that your collective bargaining agreement allows you to use up to three minutes of audio/video material for promotional purposes.
Q: Can we put three-minute audio clips of the music we will be performing on our website to promote ticket sales?
A: Yes, but not without getting permission from all the rights holders of the recorded music. If the source material is a recording of your orchestra, you’ll have to ask the participating performers (conductor, soloist, musicians), as well as the composer or publisher of any copyrighted works. If you want to use a commercial recording, you’ll have to get permission from the record company, which may or may not grant you permission on behalf of the rights holders.
Q: Does the national Audio-Visual Agreement with the AFM allow us to show our gala opening concert for free on video screens outside our concert hall?
A: The Audio-Visual Agreement does not apply to activities that take place solely within the geographical boundaries of the AFM Local with which your orchestra has a CBA. If such closed-circuit broadcasts are not covered by your CBA, you will have to get permission of the rights holders, but this is a local issue.
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The Last Word: The Lessons of The Long Tail: Why the Future of Business Is Selling Less of More
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This section of the Electronic Media 2.0 Newsletter helps League members understand key technology terms and issues as they relate to orchestras. In our first newsletter, we focused on the hot topic of digital rights management (DRM), the various methods available to copyright holders to limit the unauthorized copying of content they have created, such as recorded music.
In this newsletter, we include an article written by Joe Kluger incorporating some of the concepts in Chris Anderson’s seminal book The Long Tail: Why the Future of Business Is Selling Less of More. The article makes the case that performing arts organizations can use Anderson’s strategy of selling small numbers of many different products as a way of generating economic value and other significant institutional benefits—if they take the right approach to electronic media activities.
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Funding for Electronic Media 2.0
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The League’s Electronic Media Services are made possible by a generous grant from The Andrew W. Mellon Foundation.
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