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Some of our regular readers may have noticed my conspicuous absence from the blog for a bit and it is high time I revealed the reason. For the past month or so I have been working with Professor Charles Nesson of Harvard Law School in preparing a plea to the Supreme Court to hear the case of Whitney Harper, the “innocent infringer”. Our plea takes the form of a petition for certiorari to the United States Supreme Court, just recently filed by her lawyer, Kiwi Camara, and will take further shape in the expressions of support we can gather for it.

Whitney Harper is one of the 40,000+ targets of legal action the RIAA has brought against ordinary Americans in downloading music for free. Each one of these is a classic case of the little guy against giant multinational corporations. An army of lawyers with essentially limitless financial resources against individual defendants with pro bono lawyers.

These battles are fought in a legal system that cares little about what is just and appropriate for the Internet Era. All the while, legal precedent is being shaped that is unnerving for those who care about the future of music and the freedom of the internet.

Whitney Harper’s case is important, though it has yet to be noticed. If upheld, the decision essentially makes downloading of copyrighted material a strict liability offense when the plaintiffs only seek the statutory minimum of $750 per work. A recent study found that the average British teenager had 800 illegally downloaded songs on their iPod. This means that each teenager in the UK is liable for $600,000 on their iPod alone. If you spread that out over the 40,000 or so lawsuits already filed by the RIAA, that equates to roughly $24 BILLION.

As yet, the RIAA has only requested damages for a handful of songs in each case. However, the labels may be less generous if the judicial system supports their arguments. Furthermore, it would be bad policy to continually rely on a plaintiff’s beneficence to litigate only a small sample of the files they are entitled, especially when windfall judgments are all but guaranteed.

Moreover, if it goes unreviewed this case provides a key step in the legal logic that will be used to justify ISPs terminating users’ net connections for violating copyrights. It would effectively disallow defense of any kind based on innocence.

Ireland has become the first country to implement very aggressive “internet filtering” policies. Under this scheme, Eircom—the largest ISP in Ireland—receives a list of IP addresses from IRMA, the Irish Recorded Music Association. Infringers are sent warnings through their ISP and after three strikes their internet service is shut off. Obama is prepared to put the frame work in place without consulting the House or Senate.

A leaked draft of the ACTA convention contemplates criminal liability for inciting copyright violation (prison as well as fines), creates oversight panels, and contemplates institutionalized surveillance of data traffic across the internet to enforce these policies.

The Background

Whitney Harper was 16 at the time of her infringement and understood KaZaA and other filesharing programs to be akin to listening

on a legitimate internet radio station. In fact, at the time KaZaA claimed to be “100% legal” on its site. She had no intent to possess the music, let alone share or distribute it. The district courts decided that there was a genuine issue as to the character of her infringement and allowed her to press what is known as the “innocent infringer defense”. This allows the courts to reduce the statutory minimums from $750 per infringed work to $200.

The labels fought this by arguing that notices appeared on the legitimate CDs available at record stores. According to copyright law, when a notice appears “on the phonorecord or phonorecords to which a defendant…had access” no weight shall be given to an innocent infringer defense. The district court found this reasoning to be lacking since the media involved were mp3 files without copyright notices on them and the CDs themselves were never in the equation.

On appeal, the Fifth Circuit reversed that aspect of the decision and the minimums were raised to $750 and made automatic in the sense of eliminating any need for a jury trial. They found that notice on CDs, which the defendant never saw, may not have known existed, and was too young and untutored to appreciate were sufficient to foreclose the innocent infringer defense as a matter of law. As such, the qualities of a defendant—age, education, understanding of the situation, cognitive abilities, etc—have no bearing on the application of law and assessment of damages on the basis of the industry’s internet investigation.

Why this is a Terrible Decision

Many of the relevant sections of the copyright laws were written before many of us had computers in our homes and before the spread of the internet. This was during the transition from analog to digital and no one writing the laws or otherwise foresaw the ability of exponential duplication. At the time, there was no way to duplicate music without having a physical object in front of you. Under these circumstances no leniency need be granted to a sentient person who willfully chooses to ignore a warning in their hands, in front of their face that says “HEY STUPID DON’T COPY ME!!”

The appellate Harper decision extends that notion unreasonably far by taking the notice out that person’s hands, out of their home, and putting it across town or maybe even in another town altogether. Under the Harper decision, everyone is beholden to a warning that they may not understand, may not know to look for, located on an object that they may not know exists, located in a store that they may never go to. All based on some metaphysical possibility that there is “access” to copyright notice somewhere out there in the ether.

Copyright is not generally addressed in an academic setting until college. Furthermore, there is the very real possibility that the youth of today has never and will never hold a physical CD or set foot in a real record store. As such, it seems that an individual’s mindset and experience should have a very real bearing on the outcome of these cases. Not according to the Fifth Circuit—as long as CDs have notice on them, whether you’ve seen them or not, whether you are old enough to read or mentally capable enough to understand, you are responsible for the strictures of copyright.

But not every CD sold at a record store contains copyright notice. Just a cursory glance at my personal collection reveals a shocking number of very high profile records without any copyright notice on the outer container: Antony and the Johnsons Crying Light, Arcade Fire Funeral and Neon Bible, Deathcab for Cutie You Can Play These Songs with Chords, The Decemberists Castaways and Cutouts, Sunny Day Real Estate Diary, Wilco Yankee Hotel Foxtrot.

Even the district court agreed that some CDs or even the majority of CDs possessing copyright notices on them does little to establish that downloading is illegal. The court also found that there was a genuine question as to whether or not Harper would have or should have known that such notices were applicable in the situation as she understood it. The appellate court disagreed.

The Importance of this Case

If the appellate decision holds up, it means that no further information can be or needs to be taken into account in a filesharing case. It will affirm the sufficiency of “access” as defined in the Fifth Circuit. This essentially becomes a legal shortcut to acquiring damages. All a label needs is a private investigatory body like MediaSentry to supply their lawyers with a list of filesharers to sue. If defendants can’t dispute ownership of the files, then that is all the courts need to file summary judgment, without hearing any arguments, without going before a jury.

Ultimately that is what the labels and copyright industry want—fewer questions and fewer nuances. Many of these cases request only the statutory minimums. The reason is that if the labels do not ask for anything above that, then there can be no legal question as to the severity of damage done by filesharers. There can be no questions of constitutionality, exorbitance, injustice, or impropriety. If this decision stands, then filesharing cases will become a streamlined, disinterested, purely mechanical process.

Why You Should Care

Many artists, including Jason Mraz, Steve Winwood, and Heart, have said that they support filesharing. Others such as Adam Duritz, Annie Lennox, Chuck D, Peter Gabriel, David Gray, Pink Floyd’s Nick Mason, and The Clash’s Mick Jones have indicated that they do not believe the public should be prosecuted for downloads.

Whatever your views are, you do not need to condone filesharing in this case. Innocent infringement does not absolve liability. It is still an admission of guilt, but it allows a decrease in the statutory minimums if mitigating circumstances are allowed to be heard and deemed to be germane. Defendants are still forced to pay a minimum of $200/song, which many would agree is sufficient in any case of filesharing if not still exorbitant.  But most importantly, allowing a defendant to press innocent infringement affords them the opportunity be heard by a jury rather than fall victim to an automatic process that controls the outcome of the case, the damages, and maybe their internet connection.

This petition does not attempt to question the legality of filesharing, nor does it attempt to call into question the fairness of the laws. All it asks is for the preservation of an enclave for innocence.

Artists should not condone their labels using their music to litigate against and alienate their audience. Do not give them a free pass to fleece your fans. If you believe that filesharing could be a useful tool in connecting with your audience, the Harper decision creates a world where your fans would be and should be afraid to download anything you put out on your site, on P2P, or anywhere else on the net. If you support a free internet, you should not condone a legal precedent which allows something you’ve never seen at some non-uniform location out there in the universe to hold you responsible for actions that violate its orders. The consequences are apparent in Ireland and could very well become apparent here in the states in the near future.

But in the interest of the case at hand, as a society we should not condone a world that throws the book at someone who knows not what they do, who intends no harm in their actions, and whose accuser makes no specific claims of intentional or inadvertent harm. Our legal system should not be used to play Gotcha with unwitting citizens and entitle their tormentors to unjust, bankrupting windfalls.

For a thorough explanation of dynamic range and the “loudness war,” read: An Explanation of The Loudness War That Even Your Dad Will Understand. But here’s the gist: in order to make a mix louder, mastering engineers have to increase the volume of the softest points in the music to be closer to the loudest points. This is called decreasing the dynamic range.

Today, March 20th, has been declared “Dynamic Range Day” by Ian Shepherd, the guy who broke the Death Magnetic / Loudness War story. His proposal? EVERYONE SHOULD TYPE IN ALL CAPS ON TWITTER AND SCREAM EVERYTHING ALL DAY IN ORDER TO SHOW NORMAL PEOPLE HOW ANNOYED THEY SHOULD (THEORETICALLY) BE WITH OVERCOMPRESSED/OVERLIMITED MUSIC… BECAUSE BY YELLING ALL DAY YOU ARE DECREASING THE DYNAMIC RANGE OF YOUR OWN SELF EXPRESSION AND THEREBY PISSING PEOPLE OFF.

From what I understand, the idea is to protest the loudness war, raise awareness, and ultimately persuade others to join the effort to preserve dynamics in future recordings, without the fear of being quieter than everyone else’s record.

As musicians and audio engineers, we bitch and moan about a lot of things that 98% of the population really doesn’t care about. But we got them to hate Auto-Tune, didn’t we? While it may be a tougher sell, the “Loudness War” could be next, even if on a smaller scale.

Personally, I’m not as averse to extreme mix compression as some engineers are, but I certainly appreciate big dynamics when it makes sense. The problem is that a bigger dynamic range means lower average loudness (RMS). And loudness is one of the few things non-musicians notice about our line of work. (They only notice it when it’s too quiet, which apparently makes the song sound “amateur” to them.)

TurnMeUp.org is proposing that artists release more dynamic recordings and display their “Turn Me Up!” logo in the packaging.

But I’d like to suggest an alternative to experiment with:

Let your fans decide what they want using Bandcamp’s “hidden tracks” feature.

Bandcamp is by far the coolest and most artist-friendly online music retailer out there. It’s free to sign up, they take no percentage of your sales (except PayPal’s standard transaction fee), and it doesn’t require your fans to create an account in order to purchase your music. (More on Bandcamp at the bottom of this post.)

One of their coolest features is the “hidden tracks” option. This allows you to include songs that your fans won’t be able to preview or purchase individually.

So I’m proposing that you have your mixing or mastering engineer give you two passes for each song. One squashed to living hell and one that is on average about 3 dB less squashed to hell.

Now I know what you’re thinking. “But Keith, Stephanie Status Quo doesn’t know about dynamic range, won’t she just pick the louder versions and get confused about the other ones?” She may. But many of your fans will get curious and do some research. Perhaps you’ll explain it briefly in your liner notes. And if a bunch of artists do this, hardcore music fans will appreciate it, people will start talking about it, and eventually insist that their favorite artists include masters with some dynamic range. That is, if the masses come to a consensus that they don’t like the lack of dynamics in today’s recordings.

It also ties into this power shift in the music industry we’ve been experiencing–away from the major labels and towards the artists. The ’suits’ mainly cared about whether you got hooked enough in the first few seconds to buy it, so A&R would push mastering engineers to their limits (although artists do this too now). Repeat listens didn’t matter much except for selling the next record. Artists, on the other hand, stand to gain much more if their record is your favorite, not something you forget a week later, because it brings you to their shows, gets you to buy merch–pots that labels don’t have their hands in. If people become more informed on this issue, certain types of artists may rethink how loud they want their record to be, in terms of longevity vs immediate attention grabs.

A Philosophical Counterargument

Another, more subjective counterargument, could be the philosophical one–that artists must be (or at least seem) decisive in how they intend their music to be. This may be valid, but perhaps my proposal would still work as a transitional step. The more awareness that is spread, the less necessary it will be to include louder versions. Plus, blogs will totally blog you for being so innovative, so that’ll make up for it.

I hope some of you will try this out and let us know what the response is. And send links! – blog@fixyourmix.com

The Soundcheck Solution

My solution comes from the artist’s end, Ian’s comes from the artist+listener+engineer end, but there is actually another type of entity that can effect change in this arena: the companies who control the manner in which people listen to music. Audio software developers and hardware manufacturers.

Apple has already helped in the fight against overcompressed records by enabling their Soundcheck functionality by default in iTunes. Soundcheck calculates the average (RMS) loudness of every song in your library and adjusts them accordingly so that all songs will be the same average volume. This means Death Magnetic gets turned down and your record stays the same–but with more punch and dynamics.

More About Bandcamp.com

Here’s why Bandcamp is the only existing online music store that can compete against iTunes and Amazon MP3:

• Fans don’t have to create an account to purchase music.
  
• Flexible sales options:
  • Free
  • Free if the fan provides their email address
  • Artist sets the price
  • Fans name their own price
  • Artist sets a minimum price, but fans can pay more if they choose (Bandcamp says that on average, fans pay 50% more than the minimum price unless you give them a free option)
• No approval or wait time–songs can be purchased immediately after they have been uploaded.
• Fans can choose from a number of file formats (MP3, AAC/M4A, FLAC, etc.)
• No signup fees
• No percentage taken (except PayPal transaction fees, approx 5%)
• No ads
• Embeddable streaming player with advanced song stats (including full vs partial song plays)
• Allows you to include multimedia content
• Can optionally embed your lyrics and artwork into the files themselves, which
• Clean layout. No Myspace-esque clutter or distractions (see Miss Geo’s Bandcamp page)
• Allows you to create “download codes” for promotional offers and digital sales in person
• Hidden. Freaking. Tracks.

*One of my first audio-related memories was when I first bought The Cure’s Disintegration. I bought the CD, sat down on my living room couch, popped it into my CD player, put on headphones, and got lost in a swirl of effects and extended instrumental intros as I listened to the album in its entirety (okay technically I fell asleep but it was a great nap). As I listened, I stumbled upon something peculiar in the liner notes:

“This album was mastered to be played loud, so TURN IT UP!”

Now in those days I didn’t know anything about engineering, so I grew curious about what it meant to master an album to be played loud. In the end I decided it was just some BS their audio engineer told them that they decided to run with. And who doesn’t want their fans to blast their album at full volume?

Of course I now know that the reason is because the album had a very large dynamic range and therefore had a lower average loudness (RMS) than other releases at the time.

Hey everybody, just wanted to encourage you all to check out the back of the most recent Guitar Center catalog to take advantage of this INSANE offer.

From December 1st until the 31st, you can get 10% off any item from “the nation’s widest selection of guitars, basses, amps, effects, drum kits, keyboards, turntables, recording gear, PA systems and more!” except nearly every brand they sell. Here’s the fine print:

“Excludes [...] Adam Monitors, AKG, Ampeg, Apogee Duets, Apple, Audix, Bose, Crate, Crown, dbx, Digitech, Digidesign HD, Edirol, ESP, Euphonix, EVH, Fender, some Gibson and Epiphone, Gretsch guitars, Jackson, JBL, Korg, KRK, Lexicon, Mackie, Marshall, Martin, Mesa Boogie, Mogami, Monster Cable, Morgan, Peavey, QSC, some Roland/BOSS products, Royer Labs, Shure, Soundcraft, Squier, SSL, SWR, and Vox.”

(Click to enlarge:)

How do they do it and still make a profit? Amazing deals this holiday season, y’all.

A friend of mine is an exceptionally talented bass player.  He’s played all over the world with musicians from Michael Brecker to Andy Timmons and he’s also an excellent storyteller.  One day we were hanging out and he started reminiscing about this gig he played during apartheid in South Africa.  He began by saying that he had this six-month contract to play as the house band at a nightclub.

Everybody listening had to stop him before he made it through his first sentence:  A six-month contract to play at a venue?

We were stunned.

“Was that just the way they did it in Africa back then?”

“No, that’s the way everybody used to do it back then.”

Thirty years ago, young local groups were actually contracted to play at a venue for numerous dates at a time.  Allegedly, you could actually make a decent living doing it too.  You’d play a bunch of small gigs and build a local reputation for yourself or open for a bunch of bands as they passed through town and get some exposure to managers and label reps on the way.  

My wheels were spinning from his comment and I missed the rest of the anecdote (fortunately, like all great musicians, he’s prone to repeating his best stories so I got many other opportunities).  This just seemed so crazy in comparison to what is going on in the live music world today.   Another friend of mine, a very talented sax player, just got back from a gig up in New York and told me that insanely talented, well-connected musicians are playing at venues in New York for a free meal…

Look at the picture above from the Cavern Club: “THE BEATLES PLAYED HERE 292 TIMES”… 

The musical landscape has changed dramatically over the past thirty years.  Once upon a time, musicians were able to be musicians and support themselves with their music through a fertile, logical local system.  Now the clubs are gone, the gigs pay so little that they aren’t even worth the gas, radio doesn’t care about the local scene any more, and (as previously discussed) it’s pretty hard to make it big unless you are already big in the first place.

During an interesting segment on NPR’s All Songs Considered, Carrie Brownstein and a panel of music bloggers discussed whether or not labels were useful in discovering new music.  In a brief aside, Carrie mentioned that the label Kill Rock Stars almost passed on her band, electroclash darlings Sleater-Kinney, because they thought it was “just a side project”.

Now in Brownstein’s case, the group was a side project to her other band Excuse 17, but there is a prevailing philosophy among the decision-makers at labels that there should be some considerable measure of success derived specifically from the band in question in order for it to merit consideration.

That’s pretty difficult to do in today’s musical climate.  I’ve always encouraged people to not define themselves by their day job—do enough to pay the bills and support your passions.  The music business is now saying that that’s not enough.  You have to be professional before going pro.

The problem is that we no longer have a system where amateur musicians can cultivate and support themselves in the process of turning professional.  The issue is partly one of supply and demand.  Back in the 60s, venues wanted bands and there simply weren’t that many out there.  It was more difficult to even get an instrument, let alone be good enough at it to play for two hours.

All their success aside, Ringo Star and Mick Fleetwood would each tell you that they are not the most talented drummers (Mac Fleetwood doesn’t even know what 4/4 time is and he labored to explain that fact in Ken Robinson’s The Element).  The fact is that they were the guys in their local area with a drum kit.  Drums at the time were exceptionally expensive and too large for most in urban England to store.  If you had the instrument, you were in a band.  If you were in a band of any caliber, you were likely to land a gig playing at some venue with some regularity.

Every band needs somewhere to play.  Unfortunately, these days venues are so financially strapped that they’d often rather put the iPod on shuffle than hire four teenagers and a sound guy.  Consequently, the venues with live music are overrun with demos of musicians willing to play for peanuts.

In a world where it is virtually impossible to support yourself as an amateur musician, labels are left looking to people who are already famous to fill out their rosters: solo artists from previous hit-making bands like Gavin and Gwen, celebutantes, and contestants from reality TV.

Some amateur bands are lucky enough to catch a label’s attention and they land one of the precious few spots on a national tour playing a hundred dates with one band.  Obviously these gigs are rare, but they also reduce exposure to only the fans of a certain band.

It has been said that all business is local.  In the Digital Age, there is such a focus put on national and global considerations that the local concerns fall by the wayside.  But ultimately, a return to a fertile local music environment is what will repair the music business.  Labels have an interest in seeing musicians cultivated in their home environments, winning over a local demographic, and climbing a logical ladder toward regional and national success.

This was the model that worked thirty years ago and I believe it can still work with some adjustments for the digital age.  In many ways and to their detriment, record labels are stuck in the old ways of conducting business.  In this instance, I fear that they have overlooked a useful lesson from the past.  Emphasizing a fertile local music scene and a logical progression from there toward a national spotlight is what encourages a diverse and creative musical landscape.  There is no one better suited to make this happen than the labels themselves.

IMAGE

I had almost thought about skipping this week’s article because I’m just so damn sick of talking about American Idol.  I think I might have talked more at length about it in the past few blog posts than I have my entire life.  But I just can’t fight the natural progression…

A quick look at the Billboard Pop chart is disturbing.  With Katy Perry, Taylor Swift, Keri Hilson, Lady Gaga, and Jordin Sparks making up half the top ten, there is a stern indication that today’s music industry is focused squarely on image either at the expense of or in addition to the music.  Even the #1 hit that at first glance bucks the trend—The Black-Eyed Peas’ “I Got a Feeling”—still features the walking tabloid circus that is Fergie.  Also one of two rock acts in the top ten, Cobra Starship, features Leighton Meester from Gossip Girl in some fabulous TV/Pop Music synergy.  In fact, just looking at the chart in a cover-flow makes me feel more like I’m reading Teen Vogue or Perez Hilton than an industry trade.

In regard to last week’s article, there is indeed an emphasis on star singers as opposed to star musicians or star songwriters.  However, that is nothing new to this industry.  Michael Jackson, Madonna, Elvis, and all kinds of artists throughout pop history have relied on songwriters.  Generally speaking, behind anybody who has a plehtora of hit records and songs is an army of songwriters helping to sustain the artists’ commercial magic.

More unique and insidious than this is American Idol’s emphasis on the look and style of their contestants, which is emblematic of the larger music industry.  Could Kelly Clarkson have won with her current Rubenesque figure that seems to be generating so much negative buzz?  If you take Ruben Studdard off the scales (and many conspiracy theorists would have you replace him with the decidedly more svelte Clay Aiken) it looks like the seven remaining contestants might weigh a thousand pounds, tops. 

It is an indication that the physical attributes of a pop artist are at least as much a part of their celebrity as their music.  I now recognize many artists from television and the trades who I’ve never even heard a song from—instances where the image has both superceded and preceded the music.  Can you believe that there was ever a time when America thought Madonna was African American?  Her first single, 1982’s Everybody, was an R&B hit and the label, Sire Records, left her image off the cover and instead put images of urban minorities playing in the streets so as not to eschew her then-primary demographic.  I can’t even imagine somebody having a #1 hit today without knowing what they look like, let alone their race!

We have grown accustomed to seeing our pop stars in candid environments, fashionable moments, and compromising positions.  Given the headlines that have been generated by the nude pictures of Vanessa Hudgens and Ashley Greene, I almost expect new pop stars to have lingerie shoots before ever releasing their first single.

All this is just to say that the music landscape has changed.  It has been said that radio is the theater of the mind because radio engages the imagination in a way that spoonfed images never could.  Instead of a mysterious everyman/everywoman disembodiedly singing a tune that could be about you or me or anybody, we are given very distinct images of who is singing to us and the meaning is colored by our perceptions of that person.  Would Katy Perry’s “I Kissed a Girl” have been such a tantalizing pop sensation if a bald and toothless paraplegic sang it instead of some new age sex symbol?

Music has become a footnote to the image, the background music to a film sequence, the atmosphere to a car commercial, and a novel dabbling for celebrity playtime.  The purity of the art form seems to have been lost in the mainstream and that is where the rise of indie labels has taken up the slack.

Maybe on some level, in some small way, the flight toward indie rock has been a means of escaping the mass-market approach to the music business.  In the same way twentysomething hipsters might reject owning a TV, they find solace in the magic of an unknown artist and the possibilities of a song without a face.  I couldn’t buy an Animal Collective poster with the band members on it if I wanted to and I am eternally grateful for that.

The kind of synergy that is currently emphasized in the music business has been a long time coming.  Starting with Billboard and other music rags, expanding to MTV, and finally culminating in the media saturation of pop icons on network television and major media.  This has been good for the music business on some level because it is free marketing and promotion.  The bad thing is that music is no longer its own unique industry with its own idiom and no longer focuses on what it does best. 

Additionally, an image-centric music marketing approach puts the industry in an unsustainable position as artists fade with the passing of a fad.  Then Big Music is stuck scrambling trying to find the next fashion to capitalize on and exploit.  Lady Gaga’s voice and music will forever be married to her image and therefore the timeframe in which she operates.  As such, there isn’t even the slightest chance that her music will live on beyond the prime years of her own life when either she or her demographic grows up.

If the industry could only refocus its efforts on recreating the special environment where music can be appreciated in its own right, without all the hype and celebrity, they’d be well on their way toward a sustainable path.  When is the last time you at home got a record, sat down, and listened to it?  Really listened to it.  Didn’t put it on while you clicked through Facebook or checked the local news.  Just listened?

When more people can say that they honestly sit down and appreciate music for music’s sake, not as an accent or embellishment to something else, that’s when we’ll know that the music business is surefooted once again.

Today the Wizard of Waukesha passed away at the age of 94.  The father of multi-track recording techniques and a pioneer in musical technology, Les Paul was really the start of the modern music industry.  Anyone who has ever plugged a guitar into an amp or put sound on sound owes Mr. Paul a huge debt of gratitude.

I remember my first trip to New York—the first thing I did when I got off the plane was catch a cab to the Iridium Jazz Club on Broadway to get a glimpse of the man who started it all.  I had purchased the tickets weeks in advance.  Over the phone, a surly and quick New Yorker told me that he played two sets every Monday and the first one had sold out.  For the next few weeks, I had nightmares in which I stepped off the plane, turned on my phone, and got a message notifying me that Paul had died during his early set. 

Well fortunately for me that didn’t happen and I had the honor of witnessing one of the greatest figures in the history of the music business toward the end of his prodigious life still doing what he loved best.

You can read his awe-inspiring story anywhere:  how he revolutionized the guitar, how he created sound-on-sound, how his experiments with multi-track recording techniques changed the face of popular music.  This post is not meant to be a biography chronicling his achievements in the music world.  Instead, this is a celebration of a man whose relentless pursuit of his own passions allowed him to achieve those innovations and whose spirit, like gravity, drew crowds of professionals and amateurs alike toward him.

Surely if Les Paul had never been born, somebody else would have perfected the electric guitar.  Leo Fender and Adolph Rickenbacher both created and marketed their own solid-body electrics during the 30s.  And surely if Les Paul hadn’t been around, Bing Crosby would’ve found somebody else to tinker with the Nazi tape recorder brought to him from The War. 

But the fact is, Les Paul was around and his enthusiasm for all things musical made him the prime target for anybody with anything music related.  Ultimately, that is how one man could have been at the center for all the activity in the early music technology business—people simply wanted to be around him.  They knew that he was the kind of guy who could and would milk a musical idea for all it was worth.

His early career was a time when you couldn’t go to Guitar Center and get an hecho en Mexico Telecaster for $130.  You had to carve an electric yourself from a plank of wood.  You couldn’t just walk in to Best Buy and get some portable Japanese hard disc recorder.  You had to invent your own recording device from scratch, solder it up, and test it out. 

There were no books on multi-track recording effects, no blogs, and no degrees in audio engineering.  But by the time he was 10 years old, he was already learning about radio electronics at the local radio station.  He first experimented with overdubbing by adding new bumps to his mother’s piano rolls.  He was building crystal radio kits before he learned how to drive.  Despite his life of innovation, Les Paul never even graduated high school.

Les Paul’s story is a great American tale of a man driven by his passions to create, innovate, and perfect.  Even toward the end of his life in that dim club on Broadway, his fervor was palpable.  His set at Iridium was a captivating hour-plus of storytelling and jamming.  Interspersed with music, Paul regaled the audience with brilliant anecdotes of his life in the music business: things he had done or people he had met.  He then invited numerous guest musicians (amateurs and pros alike) onto the stage and played through songs with them, smiling and laughing all along the way.

In 2005 Paul released his first recording since the 1970s.  Les Paul & Friends: American Made, World Played earned two Grammys and featured guest performances by Peter Frampton, Jeff Beck, Eric Clapton, and many more.  Like his sets at Iridium, the record was a testament to a long and fruitful life at the epicenter of modern music.

Surrounded by friends and family, Les Paul died today of complications arising from pneumonia and left behind a long and inspiring legacy not only of accomplishments and innovations, but also proof positive that when talent and passion intersect anything is possible. 

Les, you will be missed.

Discovery

Last week’s post on the word “pitchy” got a little bit of a discussion going on American Idol which was an excellent segue into one of the many topics I had hoped to address in my series on re-thinking record labels.  It’s a little bit out of order from the schedule I had originally planned, but when the public demands something I oblige myself to deliver!

However, despite my original outline it seems more appropriate for this post to lead off our discussion on how record labels have changed in the past few years because today’s topic deals with the discovery of new artists—the very beginning of the whole music business process. 

By “discovering new artists” I mean finding those artists who are worthy to be put in the great music apparatus that, through the alchemy of the industry, churns out radio hits and gold records.  Note:  this is not the process by which the general populace discovers new music for consumption.  That is something I call avataring and I will delve further into that in a later post.

Now, discovering new artists to feed the music machine presents a paradox in our discussion.  Because we are trying to think of how the industry has evolved from the classic paradigm, some may surmise that we don’t need to feed the machine anymore because the machine is dying/dead anyway.  In other words, is it worth discussing how we find new music to put into the industry works if the industry is no longer necessary?  Chicken or egg, etc…

Well, for the time being anyway record labels are still around and for the sake of compartmentalizing this aspect for discussion, let’s assume that there is a machine to feed.

So let’s say I’m a record label executive and I need to find some new talent to make my quota for this quarter.  In the 1970s, I’d have an army of A&R scouts scouring local clubs and local radio nationwide trying to find that one group that had that certain something that might make them a hit.  Maybe they don’t need to produce a hit record right away, but the right chemistry in the band might mean that with some development a hit might be in the future.

Fast-forward to the 2000s.  Record labels are losing money year over year and downsizing considerably.  A&R scouting departments no longer have nearly as many feet on the ground combing nearly as wide of an area looking for the next big thing.  Furthermore, the places where they would go if they had the personnel are disappearing too.  Small local clubs that support local musicians and undiscovered artists are disappearing by the boatload.  Forget about local radio, how many Jack/Bob/other friendly neighborhood syndicated satellite radio programs are there now?  When’s the last time you heard a local act on your radio?  Instead it’s a 40-minute loop of Katy Perry and Lady Gaga and Kanye.

Also, the record labels are not in the mood to sit and wait for hits to develop.  They need results and they need them fast.  That means that they are looking for pre-packaged artists that come with their own prefab audience.

Enter American Idol, this is the template for how new music has and will come to the great machine of the music business.  Television pseudo-celebrity creates a readymade national market for the consumption of music.  America’s appetite for celebrity is insatiable and everyday we lower our standards for what makes someone a celebrity (when all else fails, lower your standards).  I was watching TV the other night and there is this show called “I’m a Celebrity, Get Me Out of Here.”  They did a run-down of everybody in that show and I turned to my girlfriend and said, “Who the hell are any of those people?”  A celebrity used to have to do something worth celebrating to become a celebrity, not just be a media whore on some ridiculous “reality show” making out with another chick in the hot tub or losing 40 pounds in a week.

But I digress.  If Americans see a celebrity on TV and they have a CD out, by god somebody is going to buy it!  At least the chances are higher that some Suit at a record label will give a talent-less hack a shot over a decently talented band who maybe a hundred people had actually been able to see when they opened for the Bodines at Main Street Days.

That’s why Warner Bros. took a chance on Paris Hilton’s atrocious debut album Paris, Casablanca took a chance on Lindsay Lohan’s equally atrocious debut Speak, and why Koch Entertainment (affiliated with Universal for distribution) took a chance on Idol reject William Hung.  All of these people got airplay on radio stations world-wide because “Hey guys, you saw them on TV last night!  Check out their new single!!”

Television is great because it buys into the cult of celebrity and brings new music passively to record label decision-makers.  They can sit in their office or eat dinner in front of the TV, catch a song or two by some pretty face on Idol and know that if they signed them to a deal, they’d have something that could promote itself.  And that’s the key: these are actions to reduce costs in discovery and promotion.

Of course TV isn’t the only medium where decision-makers can find musicians with built in audiences.  The Internet (did you really think I was going to make an entire article about this without addressing the Internet?) has its own ways of getting music to the powers-that-be with its own specious ways of inferring a built in audience.

The new movie Funny People has this great bit in it where Adam Sandler’s character is doing stand-up at a MySpace convention and says something like “I have 10,000 friends on MySpace…that equates to how many in the real world?”  It couldn’t be more true, just because your site is heavily trafficked and you have thousands of MySpace fans, how many of them actually translate into real ticket-buying, CD-collecting, T-shirt-wearing bona fide fans.  Anybody heard anything from The Arctic Monkeys recently?  Because Billboard surely hasn’t…Still labels have interns who do nothing all day but scour MySpace looking for bands with a decent sound and a good following.

All of these are ways of managing costs:  cutting A&R scouts, reducing national travel and show expenses, minimizing promotion expense, and dismissing development expenses.

Despite all of this, nobody has the ability to discover new music to bring to a national audience like the record labels.  Regardless of how bad they are at their jobs, there are still people being paid to do nothing but “discover” new music.  What we have is a serious misallocation of resources and a steadfast refusal for a dying industry to invest in its own future.  Rather than looking for the next Beatles who can still move records 40 years after they break up or the next Rolling Stones who have spent 40 years performing sold-out tours (and probably will continue for 40 more), the labels are content with forgettable fill-ins plucked straight from Best Week Ever who then fade into afterthoughts with a good night’s sleep.

The technological revolution still has not produced a certified way for anyone to bring great new music to the attention of major labels.  Perhaps that’s due in part to willful ignorance on the part of labels themselves, but labels could still have the market cornered on discovering worthwhile music that will stand the test of time if they’d simply shift their focus away from yesterday’s losses and today’s easy dollars.

Introduction

You don’t have to have a career in the music business to know that the industry climate is changing rapidly and drastically.  The Internet has forever changed the ways in which artists create and disseminate their music.  As a result the business models that held strong for practically all of last century no longer apply.  Not too long ago, the objective of every daydreaming, shaggy-haired garage band was to sign a contract with a record label—my how the times have changed. 

In the days of yore, you’d purchase instruments from the local music shop, gig at local venues, buy time at a recording studio to get a demo recorded, work the local radio ladder to get noticed by the industry, sign a record contract, then get your singles played nationally, and get your album in record stores.

These days the mom and pop music stores are gone, so are most of the locally owned live music venues. You can record in your parents’ basement, and you can post your music on your myspace.  With social networking, bands like the Arctic Monkeys were able to bypass the radio ladder altogether.  You can put your music on iTunes and CD Baby for free and promote it at the grassroots level.  Suddenly a record label’s ability to get your CD into every Wal-mart in America becomes less appealing.  Some artists can have fruitful careers without ever seriously touring or having radio play of any sort.

Every step along the way has changed: from the source of the materials to produce a record to the methods of getting noticed by the industry, from getting the attention of the consumer to the demographics of the consumers themselves.  Along the way, the resources have been democratized to such an extent that in many ways the monolithic labels of old are not necessary to accomplish the task.

These days the vast majority of stories regarding record labels are none too positive.  Labels are portrayed (and many times portray themselves) as obsolete behemoths desperately clinging to a Golden Age ideology that has long since become irrelevant.  They sue their own customers, alienate artists, wage their battles in Washington and in the courts, and despite ever decreasing clout still have the gall to think they own all the cards in the deck. 

However, there is no reason to throw the baby out with the bathwater.  Record labels have provided a whole host of services to artists and many of them are as relevant today as they were 50 years ago.  Simply because the average person now has access to some tools and can attempt to make his own career without the help of some larger entity, it doesn’t mean that labels wouldn’t be better suited to do it with their deep(er) pockets and entrenched connections.  Who wouldn’t want the input of an expert who has been around the block a time or two?

In many ways, record labels aren’t as irrelevant as they are popularly depicted.  Perhaps all they need is a little update in their philosophy.  In this series, I hope to enumerate the specific services that record labels provide, the way current technologies have impacted those services, and perhaps find some middle ground for future development in the industry.

If you read music news blogs you know that the music industry is going through an identity crisis trying to find “sustainable models” and other funny business terms. I just came across an online music store which seeks to capitalize on the “I knew about XYZ artist before they got big” phenomenon. Their slogan is catchy–“Popcuts.com: Buy Music. Make Money.”

They sell downloads for independent artists and it works kind of like a legal pyramid scheme with social networking built in. For every person that buys a song after you do, you get a portion of what they paid. My assumption is that they’re banking on the idea that they’ll make it up in volume. In other words, by paying consumers even a nominal amount, so many more people will be buying music from Popcuts and so many more artists will be selling their music through Popcuts that it will more than pay for itself. Will this work in practice? Who knows. Humans are creatures of both habit and trust. They’re targeting serious music fans, most of whom probably already have a routine way of buying music. And frankly the offer seems too good to be true. But they’ve thrown in an added incentive: the bragging rights of being able to verify that you did, in fact, discover an artist before all your friends.*

It’s an interesting concept, but in my view the sink-or-swim question is how much money? The artists get to choose any percentage of their money to give back to the fans, so that answer remains unclear.

One thing I like about Popcuts.com is that they target the consumer. The ad I clicked on featured a collage of childhood photos of music stars and the text read: “You knew about them before they were cool. Show it off.” This provides a stark contrast to the multitude of budding online music retailers who cater exclusively to the artist, which screams, “I know some rich dude who wants to put his name behind the Next Big Thing even though he has no understanding of the music industry whatsoever, which is why I was able to swindle him and his rich pals with this shortsighted idea,” or even, “I heard chicks dig entrepreneurs so I figured I’d give this a shot!”

Popcuts, on the other hand, has attracted some legitimate attention with Red Hot Chili Peppers guitarist John Frusciante selling his solo work along with indie rockers Piebald.

UPDATE: Just checked out Popcuts on Twitter (@popcuts) and saw they’re also selling a record Phil and I worked on, Break The Silence by American Idol finalist Jon Peter Lewis.

Buy Break The Silence on Popcuts.com

Will Popcuts become the new CDBaby? Leave your thoughts in the comments.

*Ah, high school.

Artist: Noisettes
Album: What’s the Time Mr. Wolf?
Released: 2007
Sound: Indie Rock
For Fans Of: Yeah Yeah Yeahs, Janelle Monae
Recommended Tracks: “Scratch Your Name,” “Don’t Give Up”

To get a feel for Noisettes, you have to start by watching frontwoman Shingai Soniwa’s electrifying performance in their music video for “Scratch Your Name.” This is classic case of a lead vocalist taking an act from good to great.

I saw them play a small Brooklyn night club a few summers ago. The show unexpectedly got combined with Battles at the last minute. (This was right around the time Mirrored came out, one of my favorite albums in the last 5 years.) The energy was unreal throughout the night. Since then, they’ve have toured with Bloc Party, TV on the Radio, and Muse.

While their sound is not “revolutionary” per se, Noisettes doesn’t particularly sound like anyone else. It would be a disservice to compare them to the decidedly darker and grimier Yeah Yeah Yeahs (though Shingai does list Karen O as an influence).

When Janelle Monae came out last year, I immediately thought “hey, she’s ripping off Shingai’s look,” (although she’s equal part Andre 3000). Musically, though, Janelle is a solid Motown-era soul singer while Shingai is an epic, class-of-her-own, wouldn’t-want-to-challenge-her-to-a-thumb-wrestling-match rock vocalist. Her signature is when her voice squeaks in just the right place at exactly the right time. You have to hear it to understand.

“Don’t Upset The Rhythm,” the second single from their yet-to-be-released sophomore album, has reached #2 on the UK Singles chart after being featured in a Mazda commercial. This track, along with the other single released from their upcoming sophomore album, ironically seem to indicate a directional shift for Noisettes towards a more processed, dance-y, Janelle Monae-esque sound. Guess indie rock wasn’t paying the bills. I will reserve judgment, however, until the new album drops.

Wild Young Hearts comes out April 20th on Universal.

Noisettes on Myspace