Intellectual Property and Antitrust - Music Performing Rights in Broadcasting (Part IV)

Intellectual Property and Antitrust - Music Performing Rights in Broadcasting

Performance Rights and Antitrust

By Michael Einhorn,

MusicDish Network Sponsor

Music use on broadcast television in the 1940s and early 1950s was much like it had been on preexisting radio -- spontaneous use on popular variety shows. Consequently, a blanket license here was as useful as it had been to radio stations. However, with the advent of pre-recorded programs and music soundtracks, spontaneous use declined considerably. Over 95 percent of usage minutes on television now appear on pre-recorded soundtrack and is not spontaneous. Much as in movies, producers then may reasonably consider source-licenses for soundtrack music that combine synchronization and performance rights.

However, this cost-saving exercise is pointless unless savings are made possible in the licensing fees that ASCAP and BMI charge to television stations. A soundtrack prerecording became more prevalent in the 1950s, television networks and stations came to challenge blanket licenses more aggressively than had their radio predecessors. In 1961, local station plaintiffs sued in the ASCAP Rate Court to compel a modified blanket license that would have allowed stations to carve out syndicated programs with pre-recorded soundtracks. When the District Court narrowly interpreted its rulemaking authority under the Consent Decree and denied the request, the Second Circuit affirmed the denial. In denying this application, the District Court suggested that applicants initiate a private antitrust suit or urge the Justice Department to attempt to modify the Decree. This threw down the gauntlet for the antitrust action that would follow.

Following a fee dispute with BMI, CBS brought an action against both PROs in 1969. The plaintiff argued that blanket licensing embodied illegal price-fixing, unlawful tying, a refusal to deal, and a misuse of copyright. It was therefore per se illegal under both Sections 1 and 2 of the Sherman Act and the Declaratory Judgment Act. The complainants sought a ruling to require ASCAP and BMI to offer a system of direct licenses where licensees and members/affiliates would individually contract with one another.

A 1972 District Court vacated the tie-in and block-booking charges since PRO licenses were non-exclusive. In 1977, the Second Circuit Court upheld the price-fixing charge as per se illegal and remanded the matter. Supported by an amicus brief from the Justice Department, ASCAP and BMI appealed the decision to the U.S. Supreme Court in 1979.

In an oft-cited decision, Justice White ruled that blanket licenses were properly examined under a rule of reason that generally applied to Sherman Act cases. The proper inquiry must focus on whether the effect is designed to "increase economic efficiency and render markets more, rather than less, competitive." In this context, the blanket license is not a "naked restraint of trade with no purpose except stifling of competition."

Rather, it is greater than the sum of its parts [and] to some extent, a different producer [with] certain unique characteristics. It allows the licensee immediate use of covered compositions, without the delay of prior individual negotiations, and great flexibility in the choice of musical material." Continuing, the blanket is a distinct good "of which the individual compositions are raw material" and enables a market "in which individual composers are inherently unable to compete fully effectively." On remand, the Circuit Court affirmed the District Court decision, finding that the blanket licenses were non-exclusive.

Antitrust issues reemerged in 1981 when five owners of local television stations, representing a class of 450 owners of 750 stations, sought to preclude ASCAP and BMI from issuing blanket licenses. The complainants argued that the program license was uneconomically priced. Blanket licensing was allegedly a violation of Section 1 of the Sherman Act and a misuse of copyright.

The District Court concurred, noting that the percentage-of-revenue in the ASCAP program license exceeded sevenfold its blanket counterpart and that no station consequently had chosen an ASCAP program license. With this comparison, the Court concluded "that the per program license was too costly and burdensome to be a realistic alternative to the blanket license." The Court then issued an injunction that prohibited the practice of blanket licensing.

Influenced by a seminal law review article, the Second Circuit in 1984 reversed the District Court, finding that blanket arrangements do not restrain trade if alternative means of acquiring performance rights are "realistically available". Judge Newman ruled (sic) that the "the only valid test of whether the program license is 'too costly' to be a realistic alternative is whether the price for such a license... is higher than the value of the rights obtained." The sevenfold markup of program licenses was held to be reasonable because the respective program and blanket percentages were based on different revenue bases.

Provided by the MusicDish Network. Copyright © Tag It 2004 - Republished with Permission

Free Music Marketing Tips, Self Promotion Ideas for Songwriters, Musicians, Bands

Free Music Marketing Tips, Self Promotion Ideas for Songwriters, Musicians, Bands

"TheBuzzFactor.com is produced by Bob Baker, a writer, indie musician and former music magazine editor who is dedicated to showing musicians of all kinds how to get exposure, connect with fans, sell more CDs and increase their incomes through their artistic passions. Find out more about Bob."

How to advertise online

How to advertise online

by Scott

"The Internet provides many opportunities for people who promote products and services to reach their target audience. Promoting on the Internet can be an affordable and effective form of advertising. Unfortunately many people don’t know where to begin to take advantage of this new form of media. This article will help you begin to explore your options in marketing in the online space."

As Artistopia will testify, there are many more areas to explore for online advertising (or promoting), and on this blog there are articles and suggestions throughout. Many suggestions are free to low cost, so research and know what your advertising budget is to follow through with the marketing plan that works best for you.

Here are a just a few of the many tips for promoting your music (these are mainly geared toward online). Please add your ideas and tips as well.

*Join quality OMD web sites with useful productivity tools, traffic and collaboration potential and include in your signature in ALL your web travels a link to your music. Example: Artistopia
*Business Cards- you must include either the link to your website or to at least the best place that hosts your music. Consider your link as your online business card.
*Play for free if you have to, any where, any time. Create an event and donate the proceeds to a charity. This can open up some interesting contacts and opportunities.
*Collect addresses, email addresses to keep your fan base current on what you are up to.
*Consider having a house concert.
*Create your own support group of family and friends- and communicate well with them on your plans and goals.
*Hand out your CDs. Have your web link printed on the CD.
*Print up a poster or flyers about your upcoming show and post it wherever your type of fans would hang out and include your web link, show date, name of CD, where CD can be purchased.
*Send press releases, reviews of your shows to local newspapers, magazines and event papers.
*Check your public and local radio stations that play your type of music and try to get some air time.
*Hand out your CD to club owners that feature your type of music.
*Get your name in a good, comfortable web forum and ALWAYS include the link to your music!
*Join online music groups and newsgroups.
*Give a review get a review, honestly is the best policy, but not brutality.
*Create a newsletter, if you are a decent writer, with content of value to the receiver.
*Send out press releases and reviews of shows
*Get online airplay.
*Know your audience, who and what your target areas are.
*Start a Blog, well written and kept current.
*Use internet class ads to promote upcoming events and possible collaborations with others.
*Create a banner to drop in your forum signatures or other online locations.
*Word of mouth has always been the best promotion. Get people talking about you.
*Be unique and interesting to look at in some way. Let people know you are professional and have star quality...build your image.
*Be innovative in your promotional efforts!
*There is a such thing as OVERKILL, in that it is better to describe your band/music as "we sound similar to the Beatles" rather than "we are the biggest thing since Led Zeppelin!". So word your description accordingly.
*Know your target audience.
*Never spam email.
*Be persistent!

Songwriter101.com: Songwriting: Songwriters on Songwriting: Collaborating Can Help Sow the Seeds of Success

Songwriter101.com: Songwriting: Songwriters on Songwriting: Collaborating Can Help Sow the Seeds of Success

By Kevin Zimmerman

"Collaboration is a key aspect of the trade for many songwriters. The interplay with another writer can serve as a sounding board for ideas and help unlock new areas of inspiration."

Intellectual Property and Antitrust - Music Performing Rights in Broadcasting (Part III)

Intellectual Property and Antitrust - Music Performing Rights in Broadcasting

Blanket Licensing and Consent Decrees

By Michael Einhorn,

MusicDish Network Sponsor

The U.S. Congress first extended copyright to theater music in 1856 and to non-dramatic performances in 1897. Since music use in non-dramatic settings was exclusively live and often spontaneous, performance rights were difficult to enforce and unauthorized performances were frequent. Consequently, several prominent writers (including Victor Herbert, Irving Berlin, John Philip Sousa, and James Weldon Johnson) established ASCAP, the first PRO, in order to protect the performance rights of writers and publishers in non-dramatic settings.

An unincorporated collective owned and governed by its songwriters and publisher members, ASCAP instituted a system of blanket licenses that enabled music halls, movie theaters, and other licensees to perform, without infringement, any registered composition in its entire catalog for a specified contract period. ASCAP distributed blanket revenues to its members based on a monitored count of public performances.

ASCAP's license revenues grew substantially in the 1920s as music made its way to broadcast radio. A second PRO in the U.S., SESAC, was formed in 1930. Relatively small, privately owned, and for-profit, SESAC has always operated without Justice Department and court involvement. To license alternative content to enable a radio boycott of ASCAP in 1940, the radio industry established a third organization, BMI, which picked up many country, blues, and early rock writers that ASCAP did not admit. Owned by private broadcast stations, BMI is a nonprofit corporation that counts songwriters and publishers as affiliates.

Licensing 80 percent of all music performed on the radio, ASCAP attracted its first antitrust suit from the Antitrust Division in 1934. The Department contended that ASCAP dominated the radio industry and should be dissolved. The case became dormant after the government received a continuance after a two-week trial. In 1941, the Department sued both ASCAP and BMI on the principal ground that their blanket licenses, which were their sole offerings, were in restraint of trade. Consent Decrees quickly followed that specified, among other things, that licensing practices must be non-exclusive and that licenses and individual members/affiliates should be allowed to directly contract with one another.

ASCAP's Consent Decree specified that ASCAP could not discriminate in prices or terms charged to similar users, stipulated that ASCAP must offer a per program alternative to the blanket license, required that radio network licenses cover the downstream broadcast by local radio stations, and imposed a number of membership obligations. A related criminal action against ASCAP was settled immediately afterward when ASCAP, its president, and its entire board of directors were convicted of criminal acts on pleas of nolo contendere. After signing the Decree, ASCAP immediately moved to require that all direct license revenues be pooled, thereby negating any writer incentive to pursue the alternative licenses that the Department had envisioned.

Despite the fact that accompanying music on movies had moved after 1929 from live theater instruments to pre-recorded soundtrack, ASCAP continued to license soundtrack music in movie theaters in the subsequent years. In 1948, 164 cinema owners sued ASCAP for violations of Sections 1 and 2 of the Sherman Act regarding its requirement that movie producers contract only with theaters that purchased ASCAP licenses. In a key District Court decision, ASCAP was found to be a combination in restraint of trade because all members were required to license works at pooled rates and could not therefore compete against one another in marketing their performance rights. The District Court issued an injunction against the practice.

With the advent of television, the Justice Department negotiated a new Consent Decree with ASCAP in 1950. Under Sections VII and VIII, ASCAP agreed to extend to television broadcasters the program license and to avoid any "discrimination among the respective fees fixed for the various types of licenses which would deprive the licensees Š of a genuine choice from among such various types of license." The Consent Decree also reaffirmed the need for license non-exclusivity (IV(A-B), VI), banned price discrimination to "similarly situated" licensees (IV(C)), and restricted the length of each license to five years or less (IV(D)).

The Decree foreclosed ASCAP from movie soundtracks by requiring that synchronization and performance rights be licensed at the same time (i.e., by the composer). (IV(E), V(C)). A fee-setting Rate Court was established in the District Court in Southern New York for hearing license disputes, with the burden of proof upon ASCAP to show reasonableness. (IX). The Justice Department and BMI modified their respective Decree in a similar fashion in 1966 and instituted a Rate Court provision in 1994. BMI is now about to litigate its first major license matter before its respective Rate Court.

The modified Consent Decree served ASCAP well in 1967, when the organization brought suit against a radio station in Washington that contended that ASCAP's blanket license was an unlawful combination in violation of the Sherman Act. The Ninth Circuit Court affirmed a District Court decision that upheld ASCAP because its blanket licenses were non-exclusive and its license fees were under the surveillance of the District Court. The U.S. Solicitor General supported the decision and the Supreme Court denied certiorari.

Provided by the MusicDish Network. Copyright © Tag It 2004 - Republished with Permission

Intellectual Property and Antitrust - Music Performing Rights in Broadcasting (Part II)

Intellectual Property and Antitrust - Music Performing Rights in Broadcasting

The Performance Right and its Enforcement

By Michael A. Einhorn,

Copyright for the words and lyrics embedded in musical compositions is now protected by the Copyright Act of 1976, which was enacted on January 1, 1978 and codified in Title 17 of the U.S. Code. Section 106 grants four exclusive rights to composers/writers who create musical works. These rights include:

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a. The right to reproduce the work in copies or phonorecords,

b. The right to prepare derivative works,

c. The right to distribute copies or phonorecords of the work,

d. The right to perform the work publicly.

The fourth right, embedded in Section 106(d), represents the public performance right for musical compositions that is the topic of this paper. Public performance rights in musical compositions should not be confused with previous rights to physically reproduce, derive, and distribute the music or lyrics of a musical composition. These rights together compose the mechanical right or, when applied to video soundtracks, the synchronization right. Writer copyright in musical compositions also should not be confused with copyrights in the actual sound recordings that are made by singers and instrumentalists and owned by their recording labels. Sound recording rights are now protected in the U.S. only for non-broadcast digital audio transmissions.

There are two general categories of performance rights. Small or non-dramatic rights pertain to compositions (including popular songs) that are performed independently of a created story (or dramatic or concert excerpt thereof). Since use here may be spontaneous, individual licensing between user and writer is often impractical. Consequently, the PROs reasonably act as transactions agents for licensing material, monitoring performances, and collecting royalties on behalf of their members or affiliates. By contrast, grand or dramatic rights pertain to musical compositions that are performed as part of a larger theatrical production or concert excerpt thereof. Because dramatic rights can be negotiated in advance of actual performance, PROs do not license them.

ASCAP and BMI are the two major American PROs that license non-dramatic public performances of copyrighted musical compositions. After composing a song, a writer will enlist one of the PROs to act as her collecting agent. Once affiliated, a writer will enlist the services of a PRO-affiliated music publisher, to whom she passes the copyright. The PROs distribute license revenues evenly to publishers and writers based on estimated number of performances.

Fees for broadcast licensees are negotiated periodically with individual networks/stations or their collective agents (such as the Radio Music Licensing Committee and Television Music Licensing Committee). Each radio station generally pays a fixed percentage of its adjusted advertising revenue for a blanket license. Cable channels pay blanket fees based on advertising revenues or numbers of subscribers. The three full-time television networks pay fixed fees that are adjusted annually for inflation. Local television station fees are negotiated for the industry as a whole and subsequently portioned to each station based on estimated viewership.

In addition to blanket licenses, broadcasters have other ways of "clearing" music used on television programs. Per the terms of the relevant Consent Decrees, PRO license arrangements must be non-exclusive; i.e., licensees may directly contract with writers and publishers for usage rights for particular compositions. Direct licensing entails contracts between broadcast stations and writers for individual musical works that may be performed on station-produced shows, such as themes for local news and talk shows. Source licensing entails deals between copyright owners and program producers who hire music for prerecorded soundtracks used on network and syndicated programs. Once secured by a producer, performance rights can be conveyed with the program to station buyers.

Finally, each PRO must offer a program license, which is a "mini-blanket" that confers full usage rights for all catalog music used during the presentation (i.e., non-commercial) of specified programs or day parts. Total program payments for a particular licensee depend upon the total number of programs in which catalogued music is used. Program licenses should not be confused with per use licenses that would price each individual performance. As program fees can be reduced as more programs are "cleared" through source or direct-licensing, a station can save licensing revenues if it can source- or direct-license its music at a rate that is below the prevailing program fee. Program licenses are augmented with separate commercial "mini-blankets" that license off-program uses that surround the feature presentations.

A broadcast station or network can then obtain the same rights with a blanket license or a combination of direct, source, program, and commercial licenses The licensee will then choose its most preferred licensing system by comparing blanket fees with amounts from a modular alternative. If the market were perfectly competitive, the fee for each program license would equal the rate of the best direct- or source-license alternative, and blanket fees would differ from the sum of the composites only by the incremental administration costs that the providing PRO would save by implementing the blanket.

Provided by the MusicDish Network. Copyright © Tag It 2004 - Republished with Permission

Intellectual Property and Antitrust - Music Performing Rights in Broadcasting

Intellectual Property and Antitrust - Music Performing Rights in Broadcasting

Introduction

By Michael A. Einhorn,

MusicDish Network Sponsor

Since 1934, the Antitrust Division of the U.S. Department of Justice has concerned itself with competitive issues in the licensing of music performance rights by the nation's two major performing rights organizations, the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Inc. (BMI). Department concerns about ASCAP and BMI led to two Consent Decrees in 1941, two more in 1950 and 1966, and key modifications in 1960 and 1994. In September 2000, the Department and ASCAP again filed a Joint Motion to enter a Second Amended Final Judgment (AFJ2) that will, once enacted, make further headway into resolving some competitive concerns. This paper reviews the improvements and possible difficulties of the new Consent Decree and its underlying rationale, as described by an accompanying memorandum released by the Department.

ASCAP and BMI license the rights to publicly perform musical compositions in non-dramatic settings in the United States. Licensees together now pay nearly one billion dollars to the two organizations for the right to use their catalogued material, which together include roughly 97 percent of all American compositions. Television and radio broadcasters, which are the major revenue contributors and prime focus of this paper, respectively account for approximately 45 and 36 percent of total license revenues at ASCAP.

Broadcast licensees include the three full time television networks, the Public Broadcast System, Univision, affiliated and independent local television stations, cable operators, cable programmers, and commercial and noncommercial radio stations. This group is increasingly joined by digital transmitters, which include music subscription services, digital satellite radio, and station-owned and independent webcasters now based on the Internet. General non-broadcast licensees include colleges and universities, symphony orchestras, concert presenters, and individual establishments for eating, drinking, sports, and amusement.

Performance rights organizations (PROs) provide a key administrative service for music users, who might otherwise need to deal directly with songwriters and composers to obtain the rights to perform copyrighted music. PROs negotiate and establish license contracts, collect revenue, deduct overhead, and pay remaining amounts to songwriters and publishers. As the grande dame of the business, ASCAP historically has offered the larger and more prestigious catalog, including the greatest names in American music -- Aaron Copland, Duke Ellington, Irving Berlin, Leonard Bernstein, Harold Arlen, Cole Porter, George Gershwin.

Since ASCAP's inception in 1914, the PROs have made pooled performance rights for catalogued works available to music users mostly through blanket licenses. Blanket users may perform, or convey the rights to perform, on their premises all the catalogued works of a PRO without limit. During the length of a contract, blanket fees do not vary with customer usage. Rather, blanket payments are generally fixed as an inflation-adjusted flat fee, a percentage of revenue, or a multiple of square footage, seating capacity, or some other measure of physical space. Blanket licenses economize on transactions costs, insure against involuntary infringement, and efficiently price each additional performance unit at zero, which is the immediate marginal cost of provision.

However, blanket licenses can also be deployed as anticompetitive arrangements that have attracted Justice Department attention since 1934. These licenses, which had been ASCAP's sole license offer until 1941, would compel each user to make an "all or nothing" choice that would practically force acceptance of a full license contract. By limiting user choice, blanket licenses also reduced the incentive and ability of music users to choose from alternative arrangements that might otherwise decrease payments to the PRO.

The Antitrust Division of the Justice Department negotiated Consent Decrees regarding competitive practices with ASCAP in 1941 and 1951, and with BMI in 1941 and 1966. Per the terms of these Consent Decrees, ASCAP and BMI must offer to radio and television stations program licenses that make full catalog available on an individual program basis. The Consent Decrees specify that program licenses must provide a "genuine choice" to the blanket. Despite the stipulation, television and radio broadcasters subsequently continued to allege that ASCAP and BMI program licenses were priced anticompetitively.

On September 5, 2000, the Antitrust Division and ASCAP filed with the U.S. District Court of the Southern District of New York a Joint Motion to enter a newly negotiated Second Amended Final Judgment (AFJ2) that resolves many outstanding issues in performing rights. As discussed in an accompanying memorandum, AFJ2 generally expands and clarifies ASCAP's obligation to offer genuine license alternatives to more user groups, such as background music providers and Internet companies. It also streamlines administrative provisions for resolving rate disputes and modifies or eliminates restrictions that now govern ASCAP's relations with its members.

Provided by the MusicDish Network. Copyright © Tag It 2004 - Republished with Permission

Music Video Codes

Music Video Codes

What a cool site! Get the code for your favorite music artist and add the video to your blog, website, or profile that allows < embed > HTML tags. They have an extensive list of artists, you can browse them alphabetically... and ask for requests.

Video code provided by MusicVideoCodes.com

About Artistopia

Artistopia, the ultimate music artist resource!

At Artistopia, music artists, musicians, and songwriters across the world come to display their talent and professionally manage their music careers. Launched with the undeterred focus of building an independent music community that “also” attracts industry professionals, Artistopia is quickly becoming the one-stop shop for artists and professionals to meet under one roof and speak one language - potential success. Artistopia takes pride in pioneering the next revolution in the music industry: how independent artists and musicians are discovered.

Mission Statement: To build and foster a proactive online community where artists and professionals from all corners of the music industry come and develop opportunities.

Artistic Freedom Philosophy

Artistopia gives artists the freedom and flexibility to establish an online presence and uniquely pitch their respective music talent. Owned and operated by iCubator Labs, LLC, Artistopia is an independent music community built on the basis of artistic freedom, and not on guidelines. Members have access to the most comprehensive and productive tools any online music community has to offer. Aside from the standard functionality like creating profiles, uploading music, and entering event/gig information, members can reflect their industry experience and educational background, setup slide shows, publish news releases, establish a fan base, build professional press kits, and manage business relationships. Artistopia empowers artists and musicians to do what no other music community does, promote independent music the “real-life” way.

Who is iCubator Labs, LLC?

Based in the Internet capital of the world, Virginia, U.S.A., iCubator Labs, LLC (ICL) develops advanced technology solutions that cater to two major audiences in the music industry, music artists and music companies. Founded in 2001, ICL empowers artists and music companies with quality technology and business solutions that leverage the Internet to their respective advantage. Today, ICL is a debt-free company, solely owned and funded, and employs some of the best technology, online marketing, business management, and consulting professionals the Internet and music has to offer.


In the days to come...

As the technology team keeps Artistopia innovative and the online marketing team eagerly spreads the word, ICL’s business development team is relentlessly working on developing long-term partnerships and alliances with music industry and Internet giants. From corporate sponsorships, to community/culture development, to application services provider, ICL is strategically positioned to work closely on major projects with respective industry leaders.

Without further adieu, join today and watch history in the making!

Jack In The (Music) Box: Protecting Your Songs

Jack In The (Music) Box: Protecting Your Songs

By Jack Kavanaugh,

Sally Vitelli, Kew Gardens, New York, asks a question writers have been pondering for eons. Here's Sally in her own words:

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"Jack, I think one of my songs has just been cut by another artist who claims he's also the writer. He's not, I am, but how does a writer handle a situation like this? I'm really worried because it's probably the best song I've ever written after many years of trying."

Sally, here's the real deal:

The first thing you and your attorney will be talking about is what's referred to as "access." In other words, did the other writer/artist have actual access to your song and how do you prove it? To do that you and your attorney will have to review your submission records: Did you ever send your song to this artist? If you did and you have a detailed, accurate history of your creation and you have a documented, dated record of having submitted your song to that artist, then I'd say you've proven direct access. It will also be helpful to you and your legal team if you have a file containing all the pertinent and relevant information you've put together as you went about the process of writing your song. But, Sally, What If???

What if you never sent your song to that artist or if you did, you can't prove it because your records aren't all they should be? Let's say for the sake of argument that you did not send him your song, and so direct access is out of the legislative mix. Does that mean that the game is over? Not necessarily! True, you've been unable to prove direct access, but you still have one course of investigative action to pursue in what's known in legal parlance as "inferred access." Sally, below is a case study we have in our files. Check it out so you can determine if inferred access can be applied to your dilemma, okay?

Some years ago a writer accused an artist, who was also the leader of a rock group, of stealing and recording his song. This case was adjudicated in a courtroom in New York. Both writers laid claim to having written the same song. The real writer didn't "formally" submit his song to the artist/writer in question, but he claimed it was definitely heard. The real writer also claimed inferred access because he'd cut, distributed and sold seventeen thousand copies of the song.

But did this prove inferred access? In other words, did the fact that seventeen thousand (released to the public) copies of this song prove that the group's lead singer actually heard it? No, because he simply denied he'd ever heard the song and he also claimed he didn't buy the CD that contained the song. Although multi thousands of cuts were distributed, it wasn't the same as if it was a mega chart buster that no one could deny having heard (as in Michael Bolton's case!)

Even though the real writer didn't "formally" send his song to that rock group's lead singer, he eventually proved the singer had heard it and had direct access, too. How? At one time he was a drummer for the band! Since he was at one time an actual member of the band, direct access was easy to prove that his song had, in fact, been heard and the need to prove inferred access became unnecessary.

Writers should take heed here and, yes, think about direct and inferred access. But also think about the lesson of this piece, which is to make sure you keep an ongoing file of the writing history of each song you write and a detailed list of where you send it and to whom. By the way, the "case study" we just wrote about is a true story and the rock group is famous, too!

Reprinted with permission from the Song Domain Newsletter Magazine. For a free copy, contact this author by clicking on the author's name at the top of this page.

Provided by the MusicDish Network. Copyright © Tag It 2005 - Republished with Permission

Radio, Radio - A Method To The Madness

Radio, Radio

By Carla Hall, MusicDish.com

Planning to send your new single to your local Power or Hot station to get radio airplay? Think again. Getting radio airplay is serious bizness and no longer in the hands of individual DJs, so you best plan to get hot or go home. Each week, new songs get added to a station's playlist (called "adds"), while current songs are monitored for the number of "spins" or times played per week. The rest are dropped. Believe it or not, there is a method to the madness.

"If anyone has the perception of simply putting a CD in an envelope and sending it to a radio station will automatically get airplay, then they're probably misguided," says Jerry Lembo, an independent radio promoter. "Music directors usually have a designated day and time when they take calls and/or visits from promotional reps. It may be a Wednesday between 1-4 PM. It's not like you can walk in at any given time of the week."

During a music director (MD) or program director's (PD) "visiting hours," the record promoter presents a song and dance of why the station should play the song. "What you want to do is bring in information about the artist, if there is any activity surrounding the song. Maybe the artist is playing locally, or appearing on television. Maybe the song is being used in a soundtrack or has been reviewed in a notable publication," continues Lembo. "Whatever you have to enhance the big picture of a song, this is your opportunity to present the facts."

On the R&B and Urban Radio side, there are other ways to get put on. Go through the side door via radio call-in freestyle shows and mix show DJs. "If you're on a mix tape and you make something people wanna hear, and people vibe to it, the radio stations are forced to hear what you're doing," says New York Power 105.1's Doctor Dre. "50 Cent put out tons and tons of mix CDs. He was on so many different tapes that people decided that he was the next big thing."

Payola is the means of getting a station to play your record through bribes and gifts to the MDs and PDs. Back in the day, labels were rumored to use these tactics. "In the past, the only way I could get to a program director was at The Jack the Rapper Music Conference," says rap Godfather Luke Campbell. "I'd get a suite, because I ain't Sony or Interscope, and I'd have to be creative. So I'd get the dancers from the club, put them in the room, and I'd play the same record over and over. I took the army mentality, like what they'd do in Vietnam. I'd just play a certain record over and over and run the enemy crazy!" However, the current slump in the music industry has forced people to play by the rules. "Kids have so many other ways now to get music. They can burn it, download it, or get it from a friend with a CD burner, and it's affected the business. So we can't do the big dinners and parties, and other things that are considered raunchy anymore, becau!
se it doesn't make sense financially."

Prepare. Compile list of college and mainstream stations that play your type of music. www.radio-locator.com lists stations all over the world, including web radio. Billboard and CMJ (College Music Journal) are excellent research guides. "If you listen to the frequencies in any given market, you can tell which stations are more aggressive about music, says Jerry Lembo.

"You have stations that will lead musically, and you have stations that follow. Depending on the station, you may have to build a large regional or national story before they even consider adding your record."

Who Dat? Learn the key players at each station, as well as their visiting hours and preferences. If you're approaching a college station, find out which DJs play your particular style of music. Says Geo Bivins, VP of Radio Promo at Capitol Records CK, "These days, radio promo is about going to the office, playing the record, and really working the whole station in order to get them to feel your record."

Create Your Story. Nobody wants to sleep on the next big thing. Radio people want to know what other honest hype, if any, is going on with your record. "Maybe the artist is playing locally, or appearing on television. Maybe the song is being used on a soundtrack, or reviewed by a notable publication" continues Lembo. "Whatever you have that might enhance the big picture, this is your opportunity to present the facts to the music director.

Back to School. Don't sleep on college radio for the most on-air opportunities. Interviews and performances on college stations can help you build exposure. "College breaks a lot more new artist than we do," says Doctor Dre. "There's less restrictions. I was at WDAU at Adelphi University from 1993-1998. I had so many people, like Public Enemy, that came through that became bigger artists."

Check Yourself.Radio promotion is a long term strategy. Work a few stations at a time, since you'll be begging them often. If at first you don't succeed, dust yourself off and try again. You may need to work your song for the long haul. "It's more often that you don't get the add," says Lembo. "You could visit stations for up to a year and even then not be successful. But it depends on how strongly you believe in the music."

Promotions. As the saying goes, never underestimate the power of a free t-shirt. Suggest giveaways to advertise local performances, and kiss up to your radio station ballers. "Promo-wise, everything works because it is a relationship business, " says Bivins. "But everything comes down to whether or not you have a great record."

Provided by the MusicDish Network. Copyright © Tag It 2004 - Republished with Permission

The Cover Song Quagmire

The Cover Song Quagmire

Three Ways to Obtain Mechanical Licenses for Legally Recording/Distributing Cover Versions on CDs

by Dale Turner,,

MusicDish Network Sponsor

For many musicians, a considerable amount of "play time" is spent learning other people's songs: either for cover band gigs, wedding performances, or merely to study another artist's work. If this sounds like you, as your repertoire has grown, it's highly likely one or more of those songs has sparked something extra-special inside you. Why not immortalize your efforts by recording some of those magical numbers and putting them on a CD? At the very least, one of those "classic" tracks might be the perfect way to punctuate your next disc!

But before you act, you need to know what steps you need to take to ensure you're protected, and the original songwriter gets his/her due. With this article, we'll take a look at the three primary paths you can take to obtain a mechanical license, a.k.a. "Circular 73: Compulsory License For Making and Distributing Phonorecords" to legally release your version of another artist's song. For reality's sake, I'll also include a little "story" to go with it -- my personal experience releasing an album comprised of covers -- to walk you through this somewhat tricky, time-consuming process. Let the games begin!

Way back in December 2000, I recorded a set of 10 cover songs, intending them to be nothing more than a CD-R Christmas gift for my mother. Nothing fancy, just a bunch of classic tunes (Beach Boys, Beatles, Queen, etc.) I'd spent some time on months earlier, developing from an "arrangement" standpoint to add to my repertoire and then recorded totally "raw" in my home studio. When the holidays finally hit, needless to say, Ma dug my little "stocking stuffer." And as an added bonus, it was a big hit among my relatives!

Well, after playing some of these tracks for some of my (thankfully) enthusiastic friends, I was encouraged to take these songs to the next level -- offer them as a full-blown, shrink-wrapped CD, available to "quirky cover song" fans. However, though I went the extra mile trying to conceive of unique ways to present these tunes, I wrote nary a note of this music. In order to legally (and ethically) pull this off, I'd have to find out who to pay, credit, and get permission from. With none of my friends involved in publishing or entertainment law, I hadn't the foggiest idea how to go about this.

Enter the Harry Fox Agency, or HFA. After scouring the internet for "ballpark" legal advice, it became clear that the HFA was the central hub of all things relating to obtaining the rights to record and sell copies of songs written by other parties. (NOTE: Outside the US, similar Mechanical Rights agencies exist for Canada, the UK, and Europe (and elsewhere). ,

After locating the Harry Fox Agency's home page, I discovered that the HFA (among other things) specializes in the following licensing services:

* Mechanical Licensing: The licensing of copyrighted musical compositions for use on CDs, records, tapes, and certain digital configurations.

* Digital Licensing: The licensing of copyrighted musical compositions in digital configurations, including but not limited to, full downloads, limited-use downloads, on-demand streaming and CD burning.

Given that I was going the "CD" route, playing someone else's "copyrighted musical composition," this confirmed some of the things that I'd already read online. I needed a Mechanical License! On the left side of the HFA homepage read the words: "To obtain an HFA Limited Quantity License (less than 2,500 units), use Songfile.com."

Since I was planning on manufacturing 1,000 units, the most common number for an "indie" CD run, HFA's www.songfile.com sounded right for my purposes. On Songfile, the steps to follow were simple: I clicked the "Song Search" link (note their browser requirements), entered the title of one of the songs I covered, and searched their database for the types of licenses available. Upon selecting the "mechanical license" option, I was asked the following multiple-choice questions (my answers appear in parentheses):

1) How many recordings will you make? (2500 copies or less). HFA's license fee minimum is 500 units.

2) Manufactured in what country? (Within the U.S.)

3) Distributed in what country? (Within the U.S.)

4) Which type of Organization do you represent? (Individual)

Based on the length of each song and the number of units you plan to sell, Songfile then computes a fee based upon the statutory mechanical royalty rate, which is the money collected for each sale of your cover version that goes directly to the songwriter and publisher of each song. Currently (January 1, 2004 to December 31, 2005), the "statutory mechanical royalty rate" is 8.50 cents for songs 5 minutes or less or 1.65 cents per minute or fraction thereof for songs over 5 minutes.

At that rate, for the purpose of my CD, covering a single song under five minutes long and selling 1,000 copies of it added up to an $85 fee. Since I was going to be licensing 10 songs, I'd have to pay at least $850! Two of the songs I recorded were actually over six minutes. At the current rate, that calculates to $115 each. To say the least, that's a pretty substantial up-front investment! (On a per song basis, this fee can be paid online by credit card; otherwise, you have to do the entire process manually by filling HFA's mechanical licensing form and mailing it in to the HFA with a check.

It's also worth noting that, at first, I thought this "fee" was merely the cost of obtaining the license. I shuddered at the thought of having to pay this, PLUS royalties at a rate of about eight cents per song, to say nothing of my CD's photography, art design, manufacturing costs! To my relief, a few months later, a friend informed me that the fee I paid was just an "advance" on the royalty for 1,000 copies of each song sold; the license itself was apparently only $10. According to the fine print, you're "charged a $10.00 non-refundable processing fee per license, which will be added to the license amount and processed as a single charge to your account."

Back to Harry Fox... After shelling out for several songs (you provide a ballpark release date and other details, submit your credit card info online, then receive a license via e-mail in a matter of hours or days), I entered the name of a Jimi Hendrix song I wanted to license. After answering all the same questions in the exact same manner as my previous song selections, the following words appeared before me on my monitor (in red, no doubt for dramatic effect):

This song is not available for mechanical licensing.

Noooooo!!! In a panic, I then entered the details of a Billy Joel song I recorded.

Ditto: "This song is not available for mechanical licensing."

As far as I knew, the Harry Fox Agency held the rights to all the songs legally available for the "covers" treatment; anything else was a no go. I figured this was enough to all but doom my little project (*sniffle*). For starters, those two songs demonstrated an aspect of my playing and singing that the other eight songs didn't. Further, I just didn't think it'd be cool to put out an "eight-song" covers CD, let alone one without my man Jimi being represented! Lastly, since this CD was already over three years old, it didn't feel right to do two "new" songs and slap them on at the end of the collection. To my mind, that would ruin the idea of me releasing an "accidental" album, if you will.

But then I discovered an interesting legal fact: Once a song has been commercially released by an artist, that artist's song may be re-recorded and released by anyone who chooses to do so. This holds true, provided that the melody/lyric isn't substantially altered in the "cover" version, and that they pay proper fees/royalties directly to the song's copyright holder. On the flip side, if you release a disc with cover songs on it, then try to obtain proper licensing after the fact, you're no longer eligible, and possibly subject to penalties/prosecution for copyright infringement! All I needed to do was investigate who owned the publishing rights to those Jimi Hendrix and Billy Joel songs. This information (including each publisher's address) was readily available through the following Performance Rights organizations:

* BMI

* ASCAP

* SESAC

Later, I found that the above "publisher's search" process could be sped up considerably by going through the Music Publishers Association's website.

After obtaining both publishers' contact info, I was left with that resounding "Now what?" feeling. Again, the ol' Internet paid off. I found I needed to send to each publisher what's referred to as a "Notice of Intention to Obtain Compulsory License for Making and Distributing Sound Recordings." After more cyber searching, I finally found out what the heck that was at the overwhelmingly incomprehensible (to my neophyte self) U.S.Copyright Office website. Reading that document was almost enough to make me toss in the towel (and my cookies).

But then, much to my satisfaction, I came across this totally "pre-fab" letter letter, designed by the friendly webmasters at Bignoize, a "fill-in-the-blanks" style for submission to artists' publishers. This letter appeared to adhere to the specifications prescribed by the US Copyright Office.

From here, the Billy Joel licensing process went off without a hitch. I sent in the above letter (certified mail, return receipt). When they received it, they asked me via e-mail to specify the number of copies I intended to sell (information omitted from the "pre-fab" letter I used). They then sent a written agreement for my signature, additionally asking for an $85 check covering the sum of advance royalties paid on 1,000 units. My research revealed that you could try to negotiate a lower royalty rate with each publisher. However, I happily agreed to pay the "compulsory" or "standard mandatory rate.

This agreement also provided me with the exact wording for the "publisher/writer credit" I needed to include in my CD's liner notes, and stipulated that the publisher receive two copies of the disc "as released." Individual writer/publisher credits for every song you cover must be included in your CD's liner notes. Upon execution of the agreement, they granted me the license and quickly sent me a hard copy for my records.

A search for Hendrix's publishing was another matter entirely. Depending on which performance rights organization I searched through, both "Bella Godiva Music" and/or "Experience Hendrix LLC" administered Hendrix's publishing rights. To make a long story short, Experience Hendrix LLC was the correct one. I sent my same "pre-fab" letter to their P.O. Box (the only indicated address); it came back three weeks later as "undeliverable to addressee" because nobody signed for it. (Again, I sent it certified w/return receipt, a bad idea for P.O. boxes, apparently.)

On a deadline by now (I was looking to release this disc in a couple months), I located a phone number for Experience Hendrix LLC and got the ball rolling that way. They requested I e-mail their Music Publishing & Licensing contact, asking them to e-mail me back (as an attachment): "a downloadable version of the form I need to submit in order to obtain a mechanical license for the making and distribution of 1000 CDs containing the track "Castles Made of Sand"." I was also informed that they needed to approve a copy of my "cover version" first, before they could grant me a mechanical license. Fine by me! I sent them a CD-R copy of my almost-final mix, with their filled-out e-mail form (replete with Hendrix logo!), and a few weeks later, finally got the official "go ahead."

So there you have it: Two of three possible paths for legally covering another artist's song. In the end, if you go direct to the publisher, you'll do away with the HFA's $10 filing fee. Personally, given the time it took "going direct" (to say nothing of the anxiety it caused), I'd gladly pay that $10 any day of the week! You'll just need to weigh your own personal "time vs. money" options.

So what about licensing method #3? Well, if you've exhausted all reasonable means and can't locate the copyright holder(s) for the song(s) you've covered, you can file the same Notice of Intention to Obtain a Compulsory License with the Library of Congress, Copyright Office, Licensing Division. Each song needs to be filed separately, and there's a $12 filing fee (per song). The Library of Congress will establish to whom royalties are paid by identifying the copyright owner. At that point, you'll need to make all due royalty payments, and make sure you pay! (Hint: "dot gov"!)

If you find you need to go that route, make sure you compose your correspondence to the US Copyright Office following these specifications, as prescribed by the US Copyright office. In the event you have any questions, the Library of Congress can provide you with detailed instructions concerning this form. Ask for the Copyright Office Regulations on Compulsory License for Making and Distributing Phonorecords, Circulars 96 Section 201.18 and 96 Section 201.19, and address your request to:

Library of Congress

Copyright Office

Licensing Division, LM-458

101 Independence Avenue, S.E.

Washington, D.C. 20557-6400

Meanwhile, here's sample of a "pre-fab" Notice of Intention to Obtain a Compulsory License I found online.

Finally, be aware that being granted a mechanical license does not mean you can reprint that song's lyrics in your CD's sleeve. You must clear these rights through the publisher directly. And samples and audio excerpts from the artist's original master recording must be cleared differently; for this, you must obtain a "Master Recording License" directly from the record company that owns the master to the recording. I believe Harry Fox used to offer this type of license, but has since discontinued doing so. Further, sale of MP3 downloads requires a separate "Digital License."

In the end, all the footwork I had to engage in (and anxiety I had to endure) to legally take this "stocking stuffer" to the next level was well worth the effort. I now have a CD of songs I really like, performances I'm proud of, and a nice memento of a personal "place in time" that I can proudly distribute. I hope you some day consider doing the same. Good luck!

Provided by the MusicDish Network. Copyright © Tag It 2004 - Republished with Permission

How to Get Targeted Traffic To Your Music Website With No Money Down

How to Get Targeted Traffic To Your Music Website With No Money Down

By Chris Standring,

MusicDish Network Sponsor

Everyone now knows that if you are an artist or you play in a band that it is imperative you have a website. It is now considered the norm and a nice place to refer existing and potential fans.

However, an artist website that sits in cyberspace and gets visited only after bands mention their web address on stage is a website that is not utilizing the Internet's full potential. A poorly promoted website can be like a tree falling in the forest. It may look stunning, have all the bells and whistles but if nobody can find it then it is a waste of time in my view. I want to tell you how you can get a good steady flow of regular targeted traffic to your artist website without spending a dime. Of course there is some work to do but it will be your time and not your dollars that you will be giving up.

You have no doubt heard about reciprocal link trading. This is something that has existed since the dawn of the Internet. Essentially this is where one website links to another. All very simple. However, most webmasters don't utilize the full benefit of link trading and for the most part the trade is a waste of time. Let's talk about how to do it right. There are two reasons you should trade links with other websites:

1) To get a stream of targeted traffic to your site from external links.

2) To fuel the search engines and rank your site higher.

You should only trade links with websites that are relevant to your website. For instance, if your music is categorized in the punk genre then you should of course target websites that are common to that theme. If you are a new age artist there may be many more sites you might target; spiritual bookstores, yoga and so on. Get creative and ask yourself "Who out there in cyberspace would like my music and where do they hang out?". Use keywords in Google or any other search engine to find sites to trade with.

Not all sites will trade, especially corporate commercial sites, ezines etc. Many will however and you should propose a trade via e-mail if a site invites link exchanges. The easiest sites to trade links with will be other band sites, so you should do that first. You must make sure that the websites that you trade links with have a clearly viewable link from their home page to their links page. It should say "links" or "resources" or "sites we like" and so on. You shouldn't link with any site that has a links page that can't be found. After all what good is it to you?

To really get the benefit of this marketing tool you should start a simple link directory. Think of your links directory as a mini-yahoo portal, of course the links will only be relevant to your visitors. Write down a list of categories, and add new categories as you build your directory. For example, let's say your music is "classic rock". Your categories might be:

1) Classic rock bands;

2) Classic rock ezines;

3) Classic rock heroes;

4) Reviews;

5) Music biz resources;

6) Other cool links, and so on.

Whatever genre your music is in you can customize your categories to fit. Get creative. OK, Now I want to explain something of huge importance and will make ALL the difference when you trade links with other sites. You must tell webmasters exactly how to display your link. Let me give you an example. Let's now assume you are part of a progressive rock group called "Motormouth". Here is the right way and wrong way to display the link:

Motormouth

Progressive rock from four piece band out of Denver, Colorado

Motormouth - the coolest of all progressive rock bands

Based out of Denver Colorado, this four piece band are taking the US by storm

Example #2 is the preferred way to display your link. Not all websites will allow this (especially directories) but you should push for this where possible. Let me explain why. Search engines are now giving more relevance to websites based on how their link is displayed on external sites, compared to any text residing on their own domain. If for example your band plays progressive rock then you should take advantage of your biggest keyword and include it as part of your link title.

As a surfer, if I was interested in progressive rock I might go to Google and type "Progressive rock bands". Now if you look at example two above the keyword "progressive rock bands" is part of the link title. Keep in mind that it will not help so much to include the singular "progressive rock band" in the link title. The singular keyword "band" is different from "bands" you understand? Web surfers would probably not type "progressive rock band" in Google because they might be looking for more than one. Results will vary so think about your strongest keyword and how surfers might find you - then get that keyword somehow in your link title.

After trading a good amount of links search engines will warm to your site and start returning your results extremely high in its results, depending on keyword competition. This should give you a nice flow of traffic from those websites you have traded links with and many many more from search engines when surfers enter your keyword. Please believe me when I tell you that artists and groups are NOT doing this right now and it is a simple procedure that will take just a little discipline and some time on your part. As I mentioned before, make sure that the website you are trading with displays your link the way you need it displayed. The best way to do this is to give them html code that they can copy and paste. Using example two above your html code might look like this:

Motormouth - the coolest of all progressive rock bands
Based out of Denver Colorado, this four piece band are taking the US by storm.

When requesting a link trade be courteous and professional. Remember that you must target relevant sites only (otherwise search engines will penalize you). If you want to get into this a little deeper you might download the free google toolbar which will display a pagerank (from 1 to 10) every time you visit a web page. When you trade a link with a website that has a high pagerank (IE: 4 or 5 and above) this will serve you better in return. The page that displays your link should in itself be pageranked (not just the site's home page) in a perfect world. However, I do think that user relevance should take precedence over pagerank in this instance.

Lastly, if you want to go even deeper and manage your links directory in a highly effective way I suggest you buy some incredible software called Arelis. I use this and it has tripled my traffic and therefore product sales. I created the A&R Online band directory using this as well as four other website link directories.

It allows you to check on a regular basis whether other sites are still linking back to you, enabling you to remove any broken links or contact those sites to repair etc. etc. It manages your link database brilliantly and will even generate the html web pages at the click of a button. It makes a pretty dull chore actually quite fun. Costs around 100 bucks. Money well spent if you want to really drive targeted traffic to your band site. If you are serious about your music career I can't recommend this software highly enough.

Oh, one more thing. Make sure you capitalize on the traffic that you start receiving! Rather than expect visitors to come sailing through and buy your CD, make sure that on your home page there is an incentive for them to subscribe to your band newsletter. You must get their e-mail address and build your mailing list as you can market direct to them later on. Give them a huge incentive. Again get creative. If they have come to you from a "progressive rock bands" keyword typed in a search engine, give them what they want! Perhaps offer them a free eBook with articles, news and photos of your 10 favorite progressive rock heroes when they subscribe to your list. Of course your band is on the front page of the eBook right? You should be marketing yourself first but if you are unknown you should piggyback off established stars.

"So You Think You Want A Record Deal?" The A&R Online Guide to Landing a Recording Contract by Chris Standring "A spirited how to...(and how not to) e-book. A very clever idea that is written with real-world examples for musicians/artists by a musician/artist." - Russell Ziecker

Provided by the MusicDish Network. Copyright © Tag It 2004 - Republished with Permission

Why you NEED Music Theory

Why you NEED Music Theory
By Gary Ewer, B. Mus

What good is theory, anyway?
As a music teacher I am often asked the question, "What good is music theory?" "Why do we need it?" "Isn't it possible for me to play in a band without knowing theory, or even knowing how to read music?"

And while of course it is possible to develop a career as a performing musician without being able to read a note of music - you need to know: your knowledge of music theory will open doors to a world that was previously closed to you. Used correctly, music theory will help you not only understand your music, but will allow you to communicate your musical ideas, and to explore music in ways you have never experienced before.

Used correctly, music theory allows you to be literate, and to expand your musical horizon, and to give you a vocabulary and method for doing so.

Our desire to create

Humans have an innate desire and need to create. It is part of what makes us human. Once we have created an artistic work, there is usually an immense feeling of satisfaction and resolution- a feeling that we have "made a statement". Sometimes it is almost impossible to say what that statement is, but nonetheless we usually experience a feeling of satisfaction and completion.

Some artists have likened the process of creating to giving birth, as if the work they have created is their offspring. Composing music is, for those who engage in it, a tremendously satisfying artistic release. Whether "classical" music, or garage-band rock & roll, creating a musical work is a way humans have of expressing the often inexpressible.

During times of great euphoria, and times of national trauma, musicians will compose and/or perform music that attempts to describe their feelings in a way that they feel cannot be expressed in any other way.

Composing results in a work that is unique. More to the point, the authorship of a musical work can often be determined by the style of the writing. Many people can tell they are listening to an Eric Clapton guitar solo purely because of the style of the playing, or by particular note patterns. Jerry Lee Lewis's piano style is immediately identifiable, and yet it is difficult to express in words exactly what makes it distinguishable from others. That lack of ability to express musical details verbally is sometimes attributable to a lack of theoretical background - a lack of vocabulary.

Theory is history

So, will learning music theory improve your musical abilities? Not necessarily, because musicianship is not primarily a result of theoretical knowledge. But an understanding of theoretical knowledge can help you more accurately articulate your musical ideas, and can help you understand musical structures, and this can lead to an accelerated musical development. In my article Writing Music - Making it Work! (a free article provided to purchasers of the Easy Music Theory CD-ROM set), I mention that music theory is not intended to give the composer license - it is intended only to describe certain structures within the piece. Theory tends to be historical in the sense that if something is done enough, musicians develop a theory to explain it. In music theory class, we might learn to write scales, or to analyze and build chords, or to demonstrate an understanding of time signatures. And though we can use that knowledge in the composing of new music, it does not necessarily demonstrate music ability.

Theory versus creativity...

It sounds like I am making a brilliant case for not needing music theory! But let's use an analogy to continue: In your English class at school, you will doubtless learn about nouns, verbs and adjectives. You will learn how sentences are structured, and you will learn all the rules of grammar. Those things are the theory of English. Does the knowledge of those rules make you an author? Does your understanding of sentence structure ensure that you will write the next great novel? No, not necessarily. Only a very small percentage of individuals seem to be blessed with that gift.

But to say that understanding how sentences are put together is irrelevant to developing writing skills is generally thought to be ludicrous! The more you understand, and the greater your vocabulary, the further your abilities will develop.

Sometimes musicians will claim that they don't want to study music theory for fear it will stifle their creativity. They equate increasing theoretical knowledge with diminishing artistic sense. And nothing could be further from the truth. The world's greatest composers were all masters of music theory: J.S. Bach, Mozart, Beethoven, Brahms- all had a keen understanding of the theoretical constructs of the music they composed. They spent years studying, in minute detail, the music of other composers, analyzing compositions to gain a greater understanding of how music worked.

This understanding certainly did not stifle their creative abilities - it enhanced them! Far be it from any of us to claim that Mozart's musical abilities were stifled by his highly-developed understanding of theory - such a claim would be extraordinary!

Playing by ear

I am a huge fan of playing by ear - of picking out tunes without the aid of written music, and of allowing your ears to be your guide. I believe that musicians with strong theoretical training often thoughtlessly dismiss the skill of playing by ear. They believe that figuring out a melody by picking it out in a "trial and error" method is resorted to by those who can't read music. On the contrary, I personally believe that every successful musician must have the ability to play by ear. Here is an analogy to explain:

When you were born, and until you were approximately one year old, you were essentially a non-verbal person. You communicated your needs and desires with crying, gurgles and nondescript vocalizations. Your parents became experts on how to interpret those vocalizations. By hearing speech around you, and with occasional corrections by your parents, you slowly began a process of developing a vocabulary - completely by ear. You did not "study" English. You did not learn about nouns and verbs, and yet within a couple of years, by the time you reached the age of three or so, you were communicating your ideas verbally, using nouns, verbs, adjectives and adverbs more or less correctly.

This all happened without you actually understanding or studying the theory of English. At a certain point, several years later, you learned how to read. You began to study the parts of a sentence, and how sentences are structured. You learned why words work together the way they do. And by doing so, you enhanced your own use of the language, and increased your ability to communicate ideas. By learning to read, an entire world was opened up to you. Like Mozart's ability to study other composer's music, you were able to begin to read other people's words, and to thereby further heighten your own abilities to use and manipulate words.

So the process is clear. You:

1- Learned the language in context, purely by ear.
2- Learned the theory of English, and learned to read.
3- Enhanced your use, and increased your ability to communicate your ideas.

Step two would have been extraordinarily difficult had you not already had a working contextual understanding of English. And step three would have been, it can be argued, totally impossible had you not already known how to use the language as outlined in step one.

And if you question the accuracy of my point here, perhaps you were not one of the people who took French or Spanish as a second language in a non-immersion setting. If you have tried to learn a second language by learning how to conjugate verbs, and by learning lists and lists of vocabulary, then you know what I am saying is true. Learning a language by ear first is the only successful way.

The same is absolutely true of music! I am an enormous supporter of learning to play one's instrument by ear first. I believe that this kind of "non-theoretical" stage of learning is absolutely essential to a solid development of musicality. That is not in question. The regrettable thing is when musicians stop after step one - they learn their instrument by ear, but then stop there, never proceeding on to steps two or three. And they stop because they believe that steps two and three will squash their creative abilities. Nothing could be further from the truth. Music theory was never intended to tell you what to play, or what to write. On the contrary, knowledge of music theory will open up the world of music to you by allowing you to fully understand and articulate the music you are hearing. The song in your head can now be written down and communicated to another musician. It is always so sad to me when I hear otherwise creative and imaginative musicians say to me, "Is it alright for me to write this chord?" Or, "Can I have a melody that does this&ldots;?" The answer is always, "If that's what you hear in your mind, then of course it is OK!" Music theory was never intended to allow or not allow anything. It was meant to allow you to understand what you are imagining, not dictate what you should be imagining.

The famous French composer Claude Debussy (1862-1918) had a very keen understanding of music theory. And yet he was often criticized in his own day for writing music that did not seem to conform to the rules of theory. Of course he knew that, but&ldots;. that was not why he valued music theory. He studied theory, and then wrote music that went beyond the theory, that broke the rules of theory. He used theory to enhance his understanding of music, and to better communicate his ideas.

I know so many rock & roll musicians whose creativity, I believe, has been stifled by an inability to communicate properly. And their inability to write down their ideas, or study and properly understand other people's ideas has led to a diminished overall musicality. To become a fully-rounded musician, you cannot stop at step number one; you need the other two steps:

1. Learn your instrument by ear
2. Learn music theory
3. Enhance your musicality - increase your ability to communicate your ideas

Conclusion
Music theory will not cause you to lose touch with your creative side - that simply will not happen! It cannot happen! Did learning to read English stifle your ability to be creative with words? Such a claim would be ludicrous! It did not stifle your abilities - it increased them! Music theory will do the same for you. Don't be stuck on Step one!

Let music theory increase your musicianship and your ability to communicate those ideas that are in your head.

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About the Author

Gary Ewer is the author of Gary Ewer's Easy Music Theory on CD-ROM, at EasyMusicTheory.com. Born in Halifax, Nova Scotia, Canada, he is a composer/arranger and school music teacher. He received his Bachelor of Music degree from Dalhousie University in 1982 and subsequently continued his studies in composition at McGill University under Alcides Lanza and John Rea. He returned to Halifax in late 1985 and taught trumpet, music theory and music history at the Maritime Conservatory of Music.

In 1987 he became musical director of Pomorze, a Nova Scotian Polish dance ensemble, and subsequently helped to found the Kalina Singers, a Halifax-based choir specializing in eastern-European folk songs. In 1990 he began teaching for the public schools, and has been teaching in Halifax for the past eight years, primarily at St. Patrick's High School. He presently conducts four choirs encompassing various eras and styles - Renaissance through to modern pop and jazz.

Mr. Ewer is also director of the St. Patrick's High School Concert Band, Soundtrax (Halifax's High School Honour Choir) and the Halifax Schools' Symphony Orchestra. He is actively involved in composing and arranging music for various ensembles. His music has been recorded by the Camerata Singers (conductor: Jeff Joudrey), the Cape Breton Chorale (conductor: Sr. Rita Claire) and by the Rhapsody Quintet. He continues to teach at St. Patrick's High School in Halifax as well as the Fine Arts Department of the Halifax Regional School Board, and plays with Symphony Nova Scotia as required. In the Spring of 1998 he began to write the "Easy Music Theory" course as an extra resource for his band students. Based upon the overwhelming success of these music lessons, Gary worked with Spring Day Music to develop the complete music theory course called Gary Ewer's Easy Music Theory on CD-ROM. It is available at www.EasyMusicTheory.com.

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This article ©2001 Gary Ewer, administered by Spring Day Music, http://www.EasyMusicTheory.com
This article may be freely copied and distributed provided it is not edited. Also, this entire copyright notice must be attached.
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Promoting Your Music

Here are some suggestions on ways to promote yourself from Artistopia:

*Join quality OMD web sites with useful productivity tools, traffic and collaboration potential and include in your signature in ALL your web travels a link to your music.
*Business Cards- you must include either the link to your website or to
at least the best place that hosts your music (see
http://www.artistopia.com). Consider your link as your online business
card.
*Play for free if you have to, any where, any time. Create an event and
donate the proceeds to a charity. This can open up some interesting
contacts and opportunities.
*Collect addresses, email addresses to keep your fan base current on
what you are up to.
*Consider having a house concert.
*Create your own support group of family and friends- and communicate
well with them on your plans and goals.
*Hand out your CDs. Have your web link printed on the CD.
*Print up a poster or flyers about your upcoming show and post it
wherever your type of fans would hang out and include your web link,
show date, name of CD, where CD can be purchased.
*Send press releases, reviews of your shows to local newspapers,
magazines and event papers.
*Check your public and local radio stations that play your type of
music and try to get some air time.
*Hand out your CD to club owners that feature your type of music.
*Get your name in a good, comfortable web forum and ALWAYS include the
link to your music!
*Join online music groups and newsgroups.
*Give a review get a review, honestly is the best policy, but not
brutality.
*Create a newsletter, if you are a decent writer, with content of value
to the receiver.
*Send out press releases and reviews of shows
*Get online airplay.
*Start a Blog, well written and kept current.
*Use internet class ads to promote upcoming events and possible
collaborations with others.
*Create a banner to drop in your forum signatures or other online
locations.
*Word of mouth has always been the best promotion. Get people talking
about you.
*Be unique and interesting to look at in some way. Let people know you
are professional and have star quality...build your image.
*Be innovative in your promotional efforts! "Who can promote you better
than YOU?" Get out there and get busy! And be persistent!!
*Find out more at Artistopia - The Ultimate Artist Resource

New Muscial Talent Found at Artistopia.com

In the mood for new music? Artistopia is drawing some the best talent the web has to offer.

Navigate the talented independent and unsigned music artists found here by:

Charts - Top 100 Songs or Top Genre Songs
Music Artists - Read Artist profiles-bios, education, experiences
Genres - All types of music
Or by
Most Viewed - Artists with the most views, or Top Ranked