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In their bitter battles against Napster and other free music downloading
services, record company executives have wielded one moral argument
that has placed their position beyond self-interest: the fans take
the music without proper permission and don't pay the artists a dime.
Last December, the major record labels
responded with two Internet services of their own where fans pay
monthly fees to download songs. Under this arrangement, however,
the performers still don't get a dime: for each song downloaded,
they stand to get only a fraction of a cent, according to the calculations
of disgruntled managers and lawyers.
And, artists and their managers say,
the labels, like Napster, aren't putting the music online with proper
permission either.
"I'm not an opponent of artists'
music being included in these services," said Gary Stiffelman,
who represents Eminem, Aerosmith and TLC. "I'm just an opponent
of their revenue not being shared."
Because the sites are new, no payments
have been made yet, but the payment plan has so infuriated scores
of best-selling pop acts, including No Doubt, the Dixie Chicks and
Dr. Dre, that their lawyers have demanded their clients' music be
removed from the sites, with some even sending cease-and-desist
orders. Only in some cases have the major record companies complied.
Since Napster was born on college campuses
in the late 1990's, peer-to- peer file sharing services have become
the bane of the established music business, with, at their peak,
some 60 million Napster users sharing nearly 40 million songs illicitly.
Even after a federal district court shut Napster down, other free
services proliferated, with Kazaa and Morpheus attracting an ever-growing
base of users sharing not just music but movies and software as
well.
In December, the music business responded
with Pressplay and MusicNet, both pay-to-use subscription services
where users can listen to or download a specified number of songs
each month. Pressplay is a joint venture between Universal and Sony
Music, and MusicNet teams BMG, EMI and AOL Time Warner with Real
Networks.
"All of my clients had their attorneys
advise the labels that if they did use my clients' music on Pressplay
or MusicNet, they would be in breach of contract," said Simon
Renshaw, who manages the Dixie Chicks, Mary J. Blige and others.
"Some artists they took off, but some they didn't. It's becoming
very obvious to me and my peers that we're becoming victims of what
is a huge conspiracy."
Representatives of the five major record
labels would not talk on the record about the payment system or
their rights to use the music. But in comments not for attribution,
several executives at labels and their subscription services did
not dispute the accusations regarding the payment plan. They said
their first priority was to make the services attractive to consumers
and that the details of compensation could be worked out afterward.
In a letter responding to a lawyer who
is trying to remove an artist from Pressplay, the head of business
affairs for several Universal labels, Rand Hoffman, set out a company
position. It is a view shared by other record executives, who say
they are investing heavily to fight piracy and develop a fair compensation
system for artists who are ungrateful.
"We are now spending tens of millions
of dollars to help launch Pressplay in the hope that a legitimate
response to the illegitimate services will provide an attractive
alternative to consumers," Mr. Hoffman wrote in the letter.
"Pressplay is committed to making music available on the Internet
in a manner that is legal and that ensures that artists and publishers
will be paid. This is truly a time for artists and record companies
to be working together."
He added that it was "beyond logic"
that artists would choose to leave their music off Pressplay and
"effectively encourage the use of illegal services."
Though the two new services don't appear
to be widely used, what worries artists and managers is that a precedent
is being set, so that if the labels finally come up with a viable
online music subscription service, they won't have to share a significant
portion of the proceeds with artists and can claim that this is
the way business has always been done.
The crux of the debate over artists'
compensation involves whether they should get a licensing fee or
a royalty payment.
When their music is used in movies,
in commercials and on Internet sites, artists are paid a licensing
fee, which, after payments to the producer and the publisher, is
split 50-50 between artist and label. Although Pressplay and MusicNet
license the music, the bands are not paid a licensing fee. Instead,
the labels pay their artists a standard royalty for each song accessed
by a fan, as they would for a CD sold.
This means that the artist gets on average
less than 15 percent instead of 50 percent. But, out of that, 35
to 45 percent is deducted for standard CD expenses like packaging
and promotional copies expenses that obviously don't exist in the
online world.
As one rock manager computes it, if
a consumer buys the standard Gold Plan on Pressplay, paying $19.95
for 75 songs downloaded to a hard drive and 750 streamed so that
they can be heard only once, an artist, after these deductions,
gets $.0023 per song downloaded. To earn a penny, more than four
songs must be downloaded.
"I did the math with several other
managers and lawyers, and the labels and Pressplay get just under
91 percent after they've paid all the artists for all the downloads,"
said Jim Guerinot, who manages No Doubt, Offspring, Beck and Chris
Cornell. Other managers come up with other figures that they say
are even worse for the artists.
The artists' managers and lawyers say
the record companies have not committed their payment system to
writing.
Representatives for Pressplay and MusicNet
said that the payment schedule was a decision made by the labels.
"Pressplay licenses its content from record labels and in turn
packages the music on our service," said Seth Oster, a spokesman
for the company. "The compensation of artists takes place at
the label level."
"Pressplay was developed as a legitimate
service to make sure artists' rights were respected and artists
were compensated," he added.
A spokeswoman for MusicNet said, "We
are deeply committed to artists' rights and to ensuring that copyright
holders are compensated."
Another irritant for the artists, several
lawyers and managers say, is the distribution of the $170 million
settlement from MP3.com, an Internet company that offered a music
storage service in violation of copyright law.
The labels were to share that money
with artists whose music was put online without authorization, but
several artists' representatives said nothing had been distributed.
Spokesmen for Sony and BMG said those
companies were arranging to distribute the money. According to Warner
Brothers and Universal Music, the money has been distributed, although
it may not have been spelled out exactly in the accounting statements
artists received. EMI did not call with a comment.
For many acts, suddenly there appears
to be little difference between the illicit file-sharing system
and record-label services.
The arguments the labels are using,
said Jill Berliner, a leading music lawyer, are exactly the ones
Napster made. "And, from our perspective, if the technology
is going to be out there and the artist isn't really going to make
money, we'd prefer that our fans just get it for free," she
said.
Another complaint is that the labels
are licensing music to the subscription services without seeking
permission from the musicians.
"All of a sudden this thing launches,"
Mr. Guerinot said, "and myself and a lot of other managers
and lawyers had never even been asked about it. We have coupling
rights in our contract, which means they can't just take our music
and put it wherever they please. When I try to talk to them, they
say that they don't have to discuss this."
Mr. Guerinot said he sent cease- and-desist
letters on behalf of Offspring, Beck and No Doubt. As a result,
he said, music from No Doubt and Offspring was removed from Pressplay,
but not the music of Beck.
One manager of million-selling acts,
speaking on condition of anonymity, said: "We've written them
letters and put them on notice up front, as did most managers and
lawyers, saying, `Don't put our artists' music up.' But they'll
do it anyway. They're so arrogant. They're taking the position of:
`We don't care. Let's just do it without asking.' They're ignoring
their contracts. It's ridiculous. Obviously it will be litigated."
Some managers, however, said that they
felt bullied into including their music on the services and were
powerless to do anything about it. "Of course we're upset about
it," said the manager of one male artist. "But he hasn't
even turned in his record yet, so what leg do we really have to
stand on?"
To try to avoid future protests, most
major labels have added a clause to their standard recording contracts
allowing the label to sell an act's songs on the Internet, including
all subscription and pay-per-use services. It is very difficult,
said Mr. Stiffelman, for a new band to have enough leverage to remove
this clause from its contract. NEIL STRAUSS NYT
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