by Chris “K” Kresge
Royalty Free licensing is a major hot button for many musicians today who have significant financial investments to protect. Many people associated with this debate argue from the point of view that online music distributors should not be putting a “Royalty Free” license in front of musicians. They also argue that no musician who is serious about their craft would ever stipulate to such an agreement; that in fact to do so on either side is to depreciate the value of the performance work itself, thereby devaluing the very nature of the independent music industry.
Just what is a “Royalty Free” license and why is it so contentious? Essentially, it’s when a musician agrees to a contract stipulation that an online music distributor (omd) may use that artist’s music for any length of time (up to and including in perpetuity) without paying that artist a set fee for the use of that music, regardless of how the omd uses it themselves, even if the omd is using that material for capital gain or profit. In other words, the omd is allowed, by contract, to use that music for free, for whatever purpose they choose, without having to pay the performing artist, writer, publisher or a licensed performing rights organization for the right to use that material. And they can exercise that right for as long as you have your music on their site, and in some cases for longer than that.
Those who are opposed to this concept of a royalty free license argue passionately that what this does is open the gates for the inclusion of any and all manner of artistry, regardless of quality, and undermines the true nature of what the Independent Music Industry is all about from both the economics and cultural perspectives. They further argue that any “legitimate” artist would never allow such an arrangement, and that any person or group who does accept it is guilty of corrupting the independent music industry by depreciating the value of the work being done, by those who would require a fee for service for their music.
Interestingly, the opposing argument in this issue appears to be more one of apathy towards it. As such, the prevailing counter argument appears as, “so what if they’re using my music for free, I’ll get mine via downloads, streaming revenue and cd sales. What do I care how they use my music. Furthermore, what do I care if I make any money at all, I’m just here for the fun of it.”
Many on the anti free royalty side argue that this attitude tends to be precipitated by those whose work would never make it in a consumer based system that relies on the highest standards of artistic endeavor and recording quality, and further exacerbates a generally perceived consumer attitude that all that’s available within the independent music industry on the Internet is “crap.” Those who don’t seem to care about such things argue “Hey, I’m an independent artist and am just as entitled to be here as the next guy, so let the buyer decide.” These arguments raise other issues which now are just as contentious and divisive, namely, what is an independent artist, what constitutes quality, and who is to say who does and doesn’t belong.
Defining just what constitutes an independent artist is not as easy as it would appear. The term “indie,” or independent recording artist, has historically been meant to be any artist who assigns himself to a smaller label that often does not have the international distribution that a major label has. “Indie” labels, such as Rounder, Windam Hill, Subpop, and others, have tended to be more focused on producing niche artists who could be more specifically marketed to a non-mainstream consumer. Occasionally, as was the case with Rounder’s success with George Thorogood, or Subpop’s success with Nirvana, these indie labels have been able to produce work that broke through the major label stranglehold on radio and retail sales. Some musicians have managed to parlay the success achieved at regional levels with indie labels, into full fledged distribution deals with the larger and more internationally distributed major labels.
Today, the term independent musician seems to have evolved into a broader concept, to include not only those artists who are signed to smaller recording and distribution labels, but also any artist who self produces his / her own work and puts it up on the Internet. This ability to record music, by any means available, and be able to distribute that music by means of online distribution, with no apparent regard for quality of performance or production, has lead many traditional independent labels to question the validity of the Internet as a commercially viable distribution method.
Almost all omd’s have maintained an open door policy of allowing any and all to enter, regardless of musical ability, or recording standards. Consequently, a number of independent labels are now arguing that this policy is harmful to the independent music industry as a whole, claiming, in many cases, that the inclusion of poorly performed and recorded works dilute the larger body of independent work to such a degree that the consumer, looking for a viable alternative to what is on the radio, is failing to find it online, instead perceiving that the quality of independent music is sub-standard as a whole.
Quality is perhaps the most heatedly debated issue today. Throughout history, people have made subjective judgement calls regarding what is and what isn’t art. Even when an agreement is made to consider something as art, the debate still rages as to what is and what isn’t considered to be good art.
In the online music experience, the term used by many to denote the highest possible standard of quality is “radio ready.” This term also tends to illicit the greatest amount of trepidation, as vast numbers of musicians argue that the standards imposed by radio are arbitrarily subjective and, as well, are also based on payola and the economic power of major labels, rather than by any true objective standards of what is and what isn’t quality. Perhaps more than any other single issue affecting online musicians today, this issue of what is and what isn’t good enough for public performance is the most vexing. When attempting to discuss what a quality recording is or isn’t, the most asked question of many musicians is “who is to decide what is and what isn’t quality, and how do we define it?” Like a debate on religion, this argument is not likely to ever have a definitively agreed upon and mutually accepted conclusion.
Traditionally, the standard of quality in recorded music has been dictated by the performance and recording standards of music released by major labels and publicly performed on radio. Up until the advent of online music distribution, and the ability of the average consumer to record music on home computers, the standards established by radio and records was one to be aimed for by any musician seeking to advance his/her recording career. Musicians, producers, and engineers, in an effort to further their professional careers, have often spent considerable time, energy and money to learn their craft, working in what could almost be considered an apprentice / journeyman method, as they climbed up the ladder of success to higher and higher levels of skill and craftsmanship.
Today, no such skill in performance or recording technique is required in order to be distributed internationally by an online music distributor. The omd’s have argued in defense of their open door policies by saying that in order for them to succeed in today’s Internet climate they must have the traffic associated with allowing anyone and everyone who wishes, a place to store and promote their music. This has led to the belief among many that the primary source of traffic at most omd’s are the musicians themselves, and not the casual Internet user. It has further been hypothesized that while there is indeed music online which is up to the standards of radio and records, this music is not visible simply because of the shear volume of works made available by those who are less skilled at performance and recording, but more adept at online marketing and promotion, and in some cases using questionable means to do so.
There are considerable differences of opinion as to just what an omd is, what it should be, and who should be allowed to participate. When asked, nearly equal numbers of musicians online currently will pick from the following three primary answers; an omd is a community and should be open to all; an omd is a replacement for the current real world models of distribution; an omd is a form of a cyber jukebox or radio and should have standards for admittance. When attempting to discuss the concept of filtering content on an omd for quality, the debate is equally and many times severely divisive. Many feel that an omd should constitute a community where there is no division or qualification of skill necessary to participate. Others, generally those who have considerable experience in the recording or broadcast industries, argue that setting quality standards for inclusion in an omd is necessary if the broader consumer market is to accept the Internet as a viable alternative to traditional models of distribution and performance venues such as radio.
Within this broader argument lie other issues like cheating, gaming, exploitation, chart positions, pay for play, and how marketing and promotion have also had a negative impact on what may be called the “purity” of the experience online. However, until the broader issues are addressed, these stand as secondary issues to the whole, perhaps nothing more than symptoms of a greater and more threatening disease. The Internet music distribution experience is fraught with dissension, some of which is bordering on severe activism. Camps appear to be equally divided along clear cut demarcation lines of novice and pro, online “indie” vs. traditional “indie” vs. major labels vs. omd. The coexistence of these entities, and the very existence of the omds themselves, hinge on finding solutions to the challenges that are being debated daily among tens of thousands of online participants in the business of music on the Internet.
Chris K. is a retired radio programmer and broadcaster, with over 25 years experience. He is also a published music and industry critic, with articles and reviews appearing in both local and national trade publications. Currently he is the Director of Pro Critic Radio on MP3.com, a member of the Board of Directors for CMAP Music International, an active member of Colorado Musicians Association, and a forum moderator for the Independent Musicians Cooperative in radio, as well as research and development. He can be e-mailed at [email protected] He also maintains artist pages at Javamusic.com and MP3.com. This work is protected under all applicable copyright laws as may exist on the Internet or elsewhere in the physical world. Copyright 2001, Chris “K” Kresge.