(Left to right) Matt Hirt, Steve Winogradsky, Jeff Gray, and Tanvi Patel during their panel at TAXI's Road Rally, 2014.
Photo by Ryan Taalbi
Panelists: Matt Hirt, Steve Winogradsky, Jeff Gray, Tanvi Patel
Moderator: Michael Laskow
Matt Hirt is a highly versatile and prolific composer with about 17,000 unique published songs and instrumentals in nearly every musical style imaginable to his credit.
Steve Winogradsky has over 30 years experience as an attorney in the music industry. He is a partner in Winogradsky, Sobel in Studio City, California.
Jeff Gray is a Composer, Performer, Music Supervisor, Music Licensor/Licensee and Music Consultant.
Tanvi Patel is the CEO and 50% partner in Crucial Music Corporation.
How do you think audio fingerprinting will affect the industry?
Tanvi: Fingerprinting is not 100% accurate technology. There are things called dirty audio, where you have any kind of noise or dialogue that’s on the bed that’s been used, so there’s difficulty identifying the track, 100%. Also there are certain samples that have been used on many songs across, and if you’re the only track in the TuneSat catalog, then you get that use, but there might be another track that… It should be identified too, but they’re not in that catalog.
Steve: And you’re right, it’s far from perfect. There are a couple of issues. Tanvi mentions dirty audio. Think about the music in trailers. There’s music, there’s dialog, there’s sound effects.
Jeff Gray: In sports programming, when I was at Fox Sports, there are a lot of live, ephemeral uses. There’s someone talking over it, there’s a crowd cheering and stuff. I had a lot of data gaps when we did fingerprinting. It was like, “Ugh, I gotta go back and listen to make sure what it was.”
Steve: Another thing is, at least for television, there’s 60 years worth of music, and in motion pictures, 90 years worth of music that’s never been fingerprinted. So it’s not a perfect system by any stretch of the imagination, because there’s this whole body of music that isn’t in the system, and the companies that own this music—the major studios and film companies—are not going to pay to have their music fingerprinted from films that are 70 years old. It’s not going to happen.
Jeff: And to expand on the sample thing, when you’ve got R&B and Hip-Hop and they use James Brown’s funky drummer, but they’re only using that break in that song, boy, is it fun to find out what song it actually was, because sometimes it’s so clean, that it’ll identify it as the original song, not a song using a sample of the drums in the original.
That said, when it works, it works really well. When it fails, it really fails.
Tanvi: What really works is watermarking. And I’d be all for watermarking, because then any company can put their watermark on it and it’ll identify [the right source]. The other issue with fingerprinting is, from an ASCAP, BMI, SESAC prospective, they will not pay because, just by identifying the song doesn’t help them as much as knowing exactly where the track was used. Was it used in a promo? You may know the timeslot it was used in, but was it used in a promo? Was it used in a TV show? Was it used in a film? They need to know exactly where it was used to apply their mysterious weighting system so that you can get paid. And they’re never going to embrace it 100% if they can’t get that little piece of the puzzle. The only way I see that that can happen is if the networks start fingerprinting the programming. So then you have a program fingerprint so you know when that program aired exactly, and then you have a fingerprint on the music as well. That’s the only way I see it working 100%.
Jeff: I fought that at every level trying to get that done, and no one wants to do it, and it really is annoying. Most of the networks work with a sound mining or fingerprinting company that stores their music and identifies it, but they don’t apply a watermark to it. It’s one’s and zero’s; it’s a digital file now. You’re not getting a reel-to-reel; you’re not getting any other source; you could always add information to the metadata. You could always add it on the back end, and they can manipulate it, and they won’t do it because they’re afraid of messing with the copyright, or they’re just lazy. I don’t even know. Maybe cost is prohibitive, whatever, but you can watermark the file and you can watermark the programming so easily.
Steve: And one of the other issues is that when you have music that’s performed live on a television show, there’s no data source, there’s no recording. If they play a Doobie Brothers recording, that’s in the system. If the Doobie Brothers perform live, that performance is not in the system.
Jeff: Some fingerprinters will find it, though. It’s pretty amazing.
Steve: Well, it depends on how close the performance is [to the recorded version on the record].
Jeff mentioned ephemeral uses before, and I’ve got to say, it probably took me three years to find out what “ephemeral” meant. Steve can you give the audience a definition and an example of an ephemeral use?
Steve: Ephemeral is a word that means temporary, and there’s a provision in the Copyright Act that says if a temporary recording is made, a show can be reproduced without obtaining a sync license. Here is the clearest-cut example I can think of: You take The Today Show which is broadcast live in New York City at 7 a.m., a recording is made, and then it’s broadcast again at 7 a.m. in Los Angeles three hours later. It was recorded solely for the purpose of rebroadcast, not for the purpose of reproduction and re-rebroadcast numerous times, like a sitcom might be or a TV movie or a drama. These shows are usually shown only once, and it’s really to accommodate time shifting. So that’s the best example of ephemeral I can give you.
And how does a musician get paid or not get paid for that?
Steve: Depending on what the song is… They obviously get money from their performing rights organizations—ASCAP, BMI, SESAC—because they are network broadcasts. If there is no sync license, some music libraries still have kind of an old-school model about a needle-drop rate, where they expect that if the music is played in any context, they will get paid a small fee. But in a lot of cases those business models have gone away, so it’s all back-end money.
Jeff: Another good example of ephemeral is, again, sports programming. So, you’re showing the football game and this stadium is playing music, or the organist [is playing] music when the teams come out; it’s not something that the network or the broadcaster picked; it’s not preconceived, it was no choice, and they’re showing it live, and they’re usually not rebroadcasting it. So usually they call it stadium use, or whatever they identify it as.
Steve: Technically, that’s not ephemeral, because it’s part of a live broadcast. It’s live-live. Live-live is not ephemeral. It’s only when it’s recorded and played back that it’s considered ephemeral. They may be misusing the term.
Jeff: Apparently I don’t understand it completely.
Tanvi: There’s gonna be a cat fight later. [laughter]
Jeff: The working use of the term ephemeral seems to have become sports, and they use it in various ways that are not correct, actually, that are not truly ephemeral. When you make preconceived choice, though, it’s usually not supposed to be.
Tanvi: Steve, I have a question for you. In the day and age of the Internet where everything is rebroadcast—even onetime performances are rebroadcast—how can they use the ephemeral rule?
Steve: They can’t, and a lot of those shows will get licenses. For example, you’ll see things like from Kimmel or Jimmy Fallon Show, which are ephemeral broadcasts initially, but they will obtain licenses for the music, because they do have an afterlife. They do have life online, or in some cases, they rerun the shows later—like six months or a year later—and then they will actually need licenses. So it starts as ephemeral, but it transforms into an actually licensing situation. So if you’re working with the Kimmel show or Jimmy Fallon or somebody like that, they will come to you for licenses, at least for their on-air performances by their artists, because those are the ones they are going to rebroadcast. They’re not going to really rebroadcast production music that they used in and out of commercials or something like that.
Jeff: And for the live band, what they’ll do is they will try and get a season’s worth of music pre-cleared. You know, “We might use these.” So you get that free first use, which is not really free because they’re going to pay for it eventually. But they’ll make a list of a hundred songs that the bands may play within the season, and pre-clear them.
Steve: Right, that happens quite a bit.
This is complicated stuff, and musicians, for the most part…
Jeff: Get a lawyer.
Matt, in all your years, how many times have you used an attorney on any of the deals that you’ve done?
Matt: I used an attorney on the very first deal that I was offered very many years ago.
Jeff: How many times did you use an attorney when someone made a mistake?
Matt: Well, what I did when I used the attorney basically, I didn’t just tell the attorney, “Look over this deal and tell me if it’s good or bad.” I said, “Can I come to your office and can we sit down and can you explain every clause to me?” And so he did that. So after that, the deals that I’ve been signing are fairly straight forward, and they are deals that I understand now because I had that consultation. Of course if I have any kind of a complicated deal where I didn’t understand something, I would call Steve or somebody else.
I’ve seen many examples where musicians who don’t have easy access to a full-time, “real” music attorney, so go to a friend who’s a real estate lawyer that’s taken a music law course or two. They don’t know what the norms are in the music licensing business and they say, “Oh my God, you’re giving them 100% of the publishing? I would never do that. You should hang on to your publishing for the rest of your life.” So, while they’re getting advice from an attorney, it’s not the right advice from the right kind of attorney…
Steve: When I teach classes and I speak with songwriter groups like this one, I always tell them, “Find a music attorney. The guy who did your parents’ divorce is not the guy you want to do it.” There are people here who have seen me speak before, and they know I always dress like this. This is not Saturday casual for me, this is my work outfit. If you see a music attorney wearing a tie, he’s a divorce attorney whose nephew was a bass player. [laughter] So find someone who knows the business. These guys are right; this is a very complicated business; we use terms of art that other businesses wouldn’t use. I’ve had attorneys look at these deals and think that they’re indentured servitude, where in the music business they happen every single day. You’ve got to know what you’re doing. Find someone who knows what they’re doing. And to be honest—and I will say this about most of the attorneys I know in this business, and this is a little self-serving, but take it for what it’s worth—it’s cheap insurance to spend a few hundred bucks to have someone review a contract and explain it to you the way Matt did, because now he understands it, and the next time he sees that contract, he understands it completely. Learn about the business. We are in the music business. It’s nice to be creative; it’s great to be creative, but you need to educate yourself about the business.
Look, this a rapidly changing business; it is a very complicated business; the Internet has made things just that much more complicated. There are different business models, companies going in business, going out of business… ASCAP, BMI, SESAC are in a quandary about what to do about life in general. Money is going down; everywhere I look money is going down. It’s not just Taylor Swift taking stuff off of Spotify. The Performing Rights Organizations are paying less money; the companies are paying less money for license fees. This is a tough business. Find someone that you can talk to who knows what to do and it will help you.
Tanvi: Can I say something about that? There’s a proliferation—not just in music-licensing companies; that’s been going on for years—but now there’s a proliferation of companies that are doing these sort of Let us be your digital administrator deals. And it’s like the one click gets you all that money out there that’s worldwide, that’s just sitting in the PRO’s bank, waiting to be distributed to you. And all you have to do is click a button and you’ve opted in, and you’ve opted into something that, if you haven’t read the contract correctly, or looked at it closely, [you may have agreed to something that you may not have wanted to agree to.] I run into that. I have gone up against these people, and it is not a fun thing to deal with, and there isn’t that much money out there that you’re losing by not reading… I mean, you should be reading that contract before you click through to having a digital administrator. It’s a land-grab; it’s another form of a land-grab, and it’s going on, not just in the U.S., it’s happening in Canada. I’ve seen it in the U.K. And it’s another way where “the man” is taking advantage of your inexperience and the fact that you’re not going out trying to find out what is out there and what is really going to work for you. All you have to do is Google some of these names, and you will see the negative feedback that comes up as a result.
Jeff: Your $5 that are missing isn’t that much to you, but they conglomerate and aggregate that, and they get $5 from 50,000 people or something. And that’s what they prey upon, quite frankly, and then they take a lot of rights.
But what I wanted to say is that it’s all about empowering yourself with a lawyer and getting all this knowledge. But you are musicians, you are artists—a lot of you are performing artists—and you want your stuff out there. You are here because you want to make money on it. The main thing is that you have an ego, and your ego says, “I want this out there. I want to be heard, and I want to make a living doing it.” You have to decide without your ego though. No one needs to know it, but you need to humble yourself and you have to decide, “Am I intelligent enough to understand all this stuff, or do I need someone else to help me?” And you have to shed that ego in order to make money in this business, and you have to figure out if you’re going to put in the work to learn it, or are you going to pay somebody to do the work for you. And if you have to pay them, well, then you have to work twice as hard, because you have to learn it, or you [need to] make the money to pay them.
Steve: But here’s the difference… And he’s absolutely right. You either pay someone or you learn it yourself. Where is your time better spent? Is it better spent reading contracts, or is better spent making music? I could change the oil in my own car if I had to. It would take me about five hours; I would be all greasy. Or I could pay Jiffy Lube $50 and grab a Diet Coke while I’m waiting.
Matt, what’s your musician perspective on that?
Matt: I agree with that absolutely. You know, I find it increasingly that it’s better to pay people to do things for you that you don’t like to do or you’re not good at. So absolutely, that’s better. But also, if it’s early in your career and you don’t have any money to spend, then maybe you can get free education, or you can pay a little bit like I did to get education from somebody who really knows what they’re talking about. I’m not pretending that I know every deal out there, that I could legally understand every deal. But I understand the deals that I am offered, and understand when there is something in there that I don’t understand, and then I go to a professional. So I agree with what Jeff said absolutely. You have to decide. Don’t think, “Yeah, I’m smart enough. I am so smart I don’t have to ask anybody.” That would be a big mistake.
Don't miss Part 2 of this panel in next month's TAXI Transmitter