DMCA: Prince Blocks YouTube Video of 'Creep' Cover

Here's an interesting question under the Digital Millennium Copyright Act:

Prince performs a cover of the Radiohead break-out hit "Creep" at the Coachella Music Festival. Fans post video of the public performance on YouTube. After already receiving thousands of hits, YouTube removes the video at Prince's label's request; however, Radiohead wants YouTube to "unblock" the video. What does YouTube do?

Billboard addressed the issue: Observing first that "the posted videos were shot by fans and, obviously, the song isn't Prince's", Billboard continues, "Whether the same [DMCA notice] could be done for a company not holding a copyright is less clear, but Yorke's argument would seem to bear some credence according to YouTube's policies".

So, notwithstanding your views on the DMCA, who has priority under the notice and take-down scheme -- the owner of copyright in the sound recording (Prince), or the owner of copyright in the underlying composition (Radiohead)?

Because this was a live performance, it is highly unlikely that there was any sort of publisher/performer agreement other than the public performance license (compositions) the venue pays.

Another tangential issue is Prince's right of publicity/privacy. Most performers prohibit video/flash-camera at their concerts, and in fact, Prince prohibited the standard arrangement of allowing photographers to shoot near the stage during the first three songs of his set. Instead, he had a camera crew filming his performance.

But, rights of privacy/publicity are state laws, and though related, do not come under the Copyright Act's umbrella.

[Update: Marty Schwimmer's post on the Trademark blog re: this "law school fact patter"]

Festival Exclusivity?

With the announcement that the Radiohead-and-Jack-Johnson-combo are headlining TWO festivals this summer, is it possible that -- notwithstanding the geographic distance between San Francisco and Jersey City, NJ -- in the future the festival industry will begin including EXCLUSIVITY CLAUSES in their head-liner agreements?

While it may be true that festivals on complete opposite sides of the continent will attract different audiences, is something of the festival's aura (and uniqueness, at the least) lost by having the same act(s) headline multiple festivals? Does it harm ticket sales to either festival?

The situation is distinguishable from an event like Live Aid because here the events are not under the same banner and ostensibly have separate promotors and vendors.

Radiohead Authorizes Unauthorized Remix of "In Rainbows"

Radiohead - again challenging industry standard! Rolling Stone reports "Amplive’s remixed version of Radiohead’s In Rainbows has finally gotten the green light from the Oxford quintet after the band initially denied its release." And from Amplive,

After a cease & desist put the breaks on Amplive's Radiohead In Rainbows remix project, the online music community reasonably wondered if the tracks would ever see the light of day. Well, here they are. While the Oakland producer/DJ acknowledges that he probably should have contacted Radiohead (who were not involved in the project) to seek approval prior to making his interpretations publicly available, an agreement has been reached between all involved parties and Amplive has been granted permission to release Rainydayz Remixes for free to the general public. Effective immediately, the eight-track record is available here.

So, to clarify. Radiohead releases an album, initially online in a pay-your-own-price scheme and subsequently in physical (traditionally priced) formats, all without label support. A remix of the album is created without authorization from Radiohead. A cease & desist letter is issued. The cease & desist letter is abandoned. The remix is distributed WITH authorization, for free, online.

Why did Radiohead change their mind and grant authorization? If the remix is distributed on-line for free, is there a licensing fee and if yes, on what is it based?

Radiohead - Who's Buying

By now, news of Radiohead offering its latest album on-line at a price chosen by the downloader is old - news. Now the question remains: will anyone buy the album from physical retailers now that it "In Rainbows" is being released in physical formats?

Though Radiohead has not aired any information regarding revenue from the "you-pick" pricing scheme, speculation is abundant. Conversely, sale -- and thus, revenues -- of physical formats will be easy to track. In the end, does it matter?

Radiohead has amassed critical and public following - so let's wait until they go on tour and see what they charge for tickets (and how fast they sell out) before determining how "successful" both "In Rainbow" distribution methods were.

NYTimes - Sums Up 2007 with a Great Radiohead Story

The article speaks for itself, and is worth your time to read. Interesting is the estimate that the average price paid for "In Rainbows" - Radiohead's pay what you want on-line album - was $2.26. That is about TWICE as much as what a successful artist would make under a traditional (i.e., major label) royalties deal.

OTCS must wonder, who is paying $80.00 for the physical set? Yes, it includes artwork, another disc, and vinyl...but won't the extra-disc end up on the Internet? Won't the artwork be available somewhere? And vinyl, isn't it just a novelty these days?

This Is What You Get, When You Mess With Us...

More Radiohead news: the band, in its post EMI days, continues to shun major labels. Among other news outlest, the New York Times reports:

Under the proposed deal, Radiohead would license the album, “In Rainbows,” for a specified period of time but retain ownership of the recording.

Take that "360 degree" deal! A band, retaining its copyright ownership in its work? What? What?! What?!?

Of course, it appears that the Licensee will be a traditional label, so not much new in terms of distribution and earning revenue off traditional products like CDs and mp3s. The #1 candidate on the radar right now for a US licensee is ATO Records, and though not a "major" US label, ATO certainly has its share of high-profile artists (e.g., David Gray, Ben Kweller).

Wannabe...Our Distributor?

OTCS can't believe we missed this one:

Victoria's Secret, the women's lingerie retailer, will be the EXCLUSIVE DISTRIBUTOR of the Spice Girl's soon-to-be-released (Nov. 12) "Greatest Hits" compilation (EMI).

Not sure this is as ground-breaking as last week's Madonna/Live Nation deal, or the Radiohead In Rainbows name-your-own-price model, but an interesting example of a major label seeking revenue from alternative sources. However, OTCS questions how many men will walk into a Victoria's Secret just to buy the album? How will EMI promote this to customers (e.g., men) who do not regularly shop - for either apparel or music - in Victoria's Secret? Victoria's Secret clearly is not the same type of retailer as Starbucks, who draw in a much more diverse demographic of customers to purchase albums on their HearMusic label.

Also interesting, what cut is Victoria's Secret taking on album sales? Or maybe they get their cut on the up-coming Spice Girl's tour? Talk to me people...

Madge Moves On; Makes Money

My, oh my! Madge!

As the WSJ reports this morning, Madonna is leaving her record label, Warner Bros. Records, for...the concert promoter Live Nation? Yes, the very same Live Nation that clogs your in-box with Concert Updates, but that you don't unsubscribe from on the off-chance you can catch a gem, has now put on the record-label hat.

While I advocate challenges to the existing record-label model, I am curious how Live Nation will successfully be able to sell new Madonna albums. T-shirts - $25. Limited Edition Poster - $40. New Madonna CD - $50. Will people take the bait?

WSJ notes that:

It isn't clear when her first album for Live Nation would be delivered, nor is it clear how the promoter would distribute and promote the album, since the company has limited infrastructure to do so....People briefed on the deal speculated that Live Nation would enter a licensing arrangement with one or more traditional labels to release her albums.

No, it isn't clear.

Also, how much of a shock to the industry is this really? Madge is Madge, but how many other acts out there would (a) be able to afford lawyers to negotiate this kind of deal, (b) even be considered for this kind of deal, and/or (c) opt to venture into "virgin" territory? We all know that the real money for artists is in touring, and that big artists don't even really need labels if they have the built in fan-base. (Radiohead itself just released its new album exclusively on its website. See also Jeff Leeds, "In Radiohead Price Plan, Some See a Movement", New York Times (10/11/07 - Music) ("Radiohead is in a position that can’t easily be replicated — it completed its long-term recording contract with the music giant EMI while retaining a big audience of obsessive fans")).

But still - how plausible is this for the little...or even the medium...guy?

So mazel tov Madge, on a job well-done. But whether others will follow this Oregon Trail...I doubt it.