[youtube=http://www.youtube.com/watch?v=bvpkd9eJhlc&NR=1]

Clay Walker’s “Fall” Video

Together with Clay Mills and Shane Minor, my new client Sonny Lemaire is one of three songwriters on Clay Walker’s new single, Fall, featured in the video link above.  The song is currently climbing Billboard’s Hot Country Songs chart and, after a 31-week run so far, is breaking well into the top ten!  Expect it to hit the top five very soon!

If you’re as old as I, you may remember Sonny’s old band from the Seventies, Exile, particularly their 1978 blockbuster hit Kiss You All Over, which was number one on the pop charts for over a month and had a chart life of 23 weeks.  The Exiles toured with many of the other greats of that glittery era, Boston, Heart, Aerosmith and Seals & Croft.  Sonny either wrote or co-wrote many of the band’s greatest hits.

Since that time Sonny has spent his time in Nashville’s songwriting community.  He was named BMI’s Songwriter of the Year in 1986 and has over 500 songs registered with the performance rights organization.  In 2002, he scored big with another number one song Beautiful Mess, recorded by Diamond Rio, which was also co-written by Sonny, Shane Minor and Clay Mills.  Sonny is no stranger to number one hits, however, since he has scored over ten in his illustrious career and has over 17 other BMI awards and honors.

My wish is that Sonny makes it to the top of the charts again! Sonny now lives in middle Tennessee with his family and continues to crank out hit songs.

Technorati Tags: , , , , , , ,

There appears to be a slight ripple of a trend among courts to take a stricter look at the evidence being presented by the RIAA in its crusade against digital downloads, based primarily on the evidriaa2ence of user names and IP addresses assembled by their expert consultants, MediaSentry. 

In the RIAA’s case against Jeff Dangler, filed in the U. S. District Court for the Western District of New York in Rochester, Dangler failed to file a response to the Complaint, and the Clerk entered the default against him.  Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Plaintiff can then apply to the judge for a judgment based on the default.  In addition, Fed.R.Civ.P 55(b)(2) gives the judge the option to conduct hearings and hear evidence in order to determine if the damages requested are justified.  This gives the judge the opportunity to evaluate the merits of the underlying claim and, if he finds it to be deficient, deny a judgment on the default.

On October 23, 2007, U.S. District Judge David G. Larimer denied a 55(b)(2) request by the RIAA for a default judgment of $6,420 in Atlantic v. Dangler.   Judge Larimer specifically ruled that there were “significant issues of fact” in the record “as to the identification of the defendant from his alleged ‘online media distribution system’ username” heavyjeffinc@KaZaA.  The court points out that there is no evidence presented that established a time period of the alleged distribution and/or infringement nor are there details sufficient to determine whether, in fact, the defendant is the user so identified. 

Because of these deficiencies, Judge Larimer determined that he would hold a hearing to allow the Plaintiffs to establish additional evidence that a copyright violation was committed by the defendant.  You can read the full text of the judge’s order here.

Previously, in August 2007, a similar 55(b)(2) request was denied by Judge Rudi Brewster in Interscope v. Rodriguez in the U.S. District Court for the Southern District of California.  In that case, Judge Brewster held that “Plaintiffs . . . must present at least some facts to show the plausibility of the allegations of copyright infringement against on th[is specific] defendant,” citing the recent U.S. Supreme Court decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) that more than a mere recitation of the elements of a claim are necessary to find relief.   Basing his decision on facts similar in nature to Dangler, Brewster concluded that the RIAA’s complaint failed to state a claim upon which relief could be granted.

These decisions arise in districts where the judges are, generally speaking, more technically saavy than some other districts where these types of issues do not arise as often.  In a somewhat related case, the Ninth Circuit, the appeals court that has jurisdiction over the California district courts, one bankruptcy court has already established stricter standards of proof for establishing the veracity of computer records.  For more information, see the informative article entitled Admitting Computer Record Evidence after In Re Vinhnee:  A Stricter Standard for the Future?, by Cooper Offenbecher.  In short, this article discusses the interplay between Rules 901 and 803(6) of the Federal Rules of Evidence and their application to digital business records.  Essentially, without getting into the details, there is a hearsay exception for business records allowing their admission as evidence in a trial if they are maintained in the regular course of business and are relied upon by the business.   It is these sorts of dialogues that must inform the judges as they scrutinize the evidence presented by the RIAA in support of infringement claims, whether they be in the course of a default judgment or in the course of a trial.

DIGG THIS STORY!

Technorati Tags: , , , , , , ,

Perhaps Porter Wagoner should be remembered as the original “Rhinestone Cowboy” because of his penchant for sparkling two-piece rhinestone often adorned with wagon wheels and other cowboy themes — at one point he owned over 60 suits. 

The longtime country music legend died at 8:25 p.m. CDT in a Nashville hospice Sunday night at the age of 80 from complications resulting from lung cancer.

Born in the Ozark Mountains of MisPorterDollysouri, Wagoner was a regular on the radio show “Ozark Jubilee.”  He signed his first record deal with RCA Records in 1955.  Two years later, he joined the Grand Old Opry, where he was a perennial favorite.  In 1960, he appeared on “The Porter Wagoner Show,” one of the first syndicated shows to be produced in Nashville, which had a 21-year run.  He was elected to the Country Music Hall of Fame in 2002.

Not only was Wagoner a consummate performer, but he also wrote many great classic country songs, one of the most memorable of which was Green, Green Grass of Home

Wagoner is also credited with giving Dolly Parton her first big break.  He hired the then-fledgling young artist in 1967 to be his duet partner.  That relationship produced a string of hits, but finally ended in a lawsuit that was settled in 1980 for an undisclosed amount.

Wagoner had recently signed a new record deal and produced his last and final album, Wagonmaster, with Marty Stuart.  It was released in June to critical acclaim.

The loss of this great legend is felt throughout the Row today, but there is perhaps a new constellation in the sky, the Rhinestone Cowboy.

Technorati Tags: , , , ,

Earlier this week, Tom Baldrica, vice mcbee president of marketing at Sony BMG, announced that Heather McBee has been promoted to vice president of digital business.  McBee, who has been with the label for 14 years, was formerly senior director of that department.

Baldrica said in a prepared statement:

"I’m so proud of this promotion.  Heather has demonstrated constant growth and leadership skills in building her new media band-of-one into a full-fledged digital business department.

Originally from Clarksburg, West Virginia, McBee interned with BNA Records while attending the music program at Belmont University and was employed as a sales assistant upon her graduation in 1993.  Through various mergers and acquisitions among the various labels, she ended up with Sony BMG.  In 1997 she was picked to head up a newly formed research department which eventually evolved into the Digital Business and New Media department.  She was appointed director of that department in 2003.

A part of Leadership Music’s 2007 Digital Summit, McBee is quoted as saying

I had the fortitude to stick it out when everybody was saying "no."

McBee credits label group chairman, Joe Galante for allowing her flexibility to prove the viability of her ideas about the future of the industry:

He asks that things be quantified. He gave me freedom to experiment…as long as I tempered my excitement and made it fit our goals and what we were doing.

Among other things, McBee was influential in moving Sony BMG into the cellular ringtone business.

 

home_pic01 Leon Russell hits the tour circuit harder than any person I know.  He will making several Tennessee appearances close to home in Knoxville, Memphis and then Nashville in the upcoming months, so locals will be able to catch this rare performer and Tennessee treasure. 

On Saturday, November 3, 2007, Leon will be playing at 9 p.m. at the World Grotto, 16 Market Street, 8650226-2962.  Then, on December 21, he will be at the Gibson Beale Street Showcase at 145 Lt. George Lee Avenue, 901-544-7998, followed by an appearance at the original Gibson Showcase at Opry Mills in Nashville, 615-514-2200.

You can follow Leon’s schedule online at his website.

Technorati Tags: , , , , , , ,

[youtube=http://www.youtube.com/watch?v=IzIoxm-zvTw&rel=1]

 

 

 

 

 

 

 

 

 

 

The Nashville Chamber Orchestra’s next installment of its Acoustic Cafe series is next Friday, November 2nd at 8 p.m. in the Grace Chapel, located in Lieper’s Fork, Tennessee.  The event will feature resident musician, Darrell Scott, and the Acoustic All-stars, which, together with the NCO, consists of Dan Dugmore, Stuart Duncan, Viktor Krauss, Kenny Malone, and Bryan Sutton. 

NCO was founded in 1990 by Music Director Paul Gambill.  It is recognized as one of America’s premiere chamber orchestras. It’s trademark Music Without Boundaries has led to critical acclaim as well as numerous recordings for Warner Brothers and other labels,  It’s educational program produced a CD entitled Kid Pan Alley, featuring songs written by noted songwriters with grade school classes around Nashville.  This project won the NCO a Grammy nomination as well as a Gold Award from the Parent’s Choice Foundation and the National Parents Publications Association.

Tickets for the show are on sale now, $25 for General Admission. Call the NCO at 615-322-1226 ext 201 or go online at www.nco.org for more information.

Technorati Tags: , , , ,

360 Agency Early in October, Joey Lee, former CEO at Buddy Lee Attractions , left that agency to form 360 Artist Agency, a full-service talent agency.  This ends a very long tenure for the namesake’s son at the helm of the famous Nashville agency. 

Miranda Lambert Mr. Lee took several of his clients with him to the the new agency, including Lee Ann Womack, Miranda Lambert and Heartland, but 360’s final roster has not been published.  In addition to these three artists, Lee was the responsible agent at Buddy Lee for Bo Bice, Mark Chesnutt, Jared Nieman, Rhett Akins, and Thomas Martinez.   Tony Conway remains as president of Buddy Lee Attractions.   You can check out his current  MySpace for more information.

Lee can be reached at 903 18th Ave. S., Nashville, Tennessee 37212, (615) 360-0911.  Email: [email protected].

 

vuLogo2Fueled in part by its success in Virgin v. Thomas, the RIAA (on behalf of EMI Music, Sony BMG Music Entertainment, Universal Music Group and Warner Music Group) issued a new round of pre-litigation letters to college students across the country Thursday of last week. This is its ninth such round of letters since beginning the campaign against downloaders nearly two years ago. This round included letters to 32 students at Nashville’s prestigious Vanderbilt University. Vanderbilt received the third greatest quantity of letters in this round, behind University of Southern Florida, with 43 and Southern California with 37.

In addition to those three institutions, the RIAA also sent letters to these 16 schools (quantity in parentheses): Drexel University (17 pre-litigation settlement letters), Indiana University (23), Northern Illinois University (25), Occidental College (19), State University of New York at Morrisville (18), Texas Christian University (20), Tufts University (15), University of Alabama (14), University of California, Berkeley (19), University of Delaware (18), University of Georgia (13), University of Iowa (18), University of Michigan – Ann Arbor (20), University of Nebraska-Lincoln (13), University of New Hampshire (30), University of New Mexico (17).

As with the more than 3,500 letters previously sent to college students at other schools, the letters gives students the opportunity to resolve copyright infringement claims against them at a discounted settlement rate before the threatened lawsuit is filed against them. The letters are accompanied by instructions to the university administrators to forward the letter to the appropriate individuals the give them the opportunity to promptly resolve the matter and avoid a lawsuit.  So far, the RIAA has filed over 26,000 lawsuits, with more than 8,000 students settling out of court at for average penalty of $3,000 each.

While most unversities simply forward the letters as requested by the RIAA, some, like the University of Kansas, have taken the stance that they are not a legal agent of the RIAA and that forwarding the letter would be a violation of the students’ privacy and the Digital Millnnium Copyright Act (the “DMCA”).  They refuse to relase information with a court order or subpoena legally requiring them to do so.  The safe harbor provision of the DMCA protects Internet service providers, in this case the University, from liability for users’ online activity if they immediately remove or disable a access to identified material in a copyright infringement complaint.

It is uncertain what position Vanderbilt University will take with regard to this issue.

DIGG IT!

Amazon.com, Inc. (Tickler Symbol: AMZN) will hold a conference call on October 23, 2007 at 5:00 p.m. ET to discuss its 2007 third quarter financial results. This announcement has tremendous relevance for those of us interested in the commercial viability of digital sales and downloads of DRM-free music — since Amazon launched its online music store, Amazon MP3, which sMP3aells songs without copy protection in this fiscal quarter, the sales of said music will be a component of the report. Many financial analysts are expecting Amazon to announce earnings of around 18 cents per share on just over $3 billion in revenue for the quarter.

Most online reviewers agree that the Amazon experience of buying digital music is very favorable when compared to iTunes. My feeling about iTunes generally is that is an overbloated, unwieldy piece of software that doesn’t do the job it was designed to do very well at all, so this favorable comparison comes as no surprise to me. Although Amazon’s MP3 store is web-based, once you download a small companion program (on either Windows or the Mac) you get a better one-click experience than Apple’s iTunes store, and the software automatically adds purchased files to iTunes, if you choose to use that software, or any of the myriad of better music players available on the Internet.

In addition to the favorable software experience, many users are impressed that Amazon offers over 2 million at an average of 10 cents less than the cost on iTunes. The offering, while only about 20% of Apple’s offerings on iTunes, is the largest collection of DRM-Free music anywhere.

Both UMG and EMI have signed up with Amazon, while Sony BMG and Warner Music Group still lurk in the Dark Ages when it comes to the digital spectrum. The only negative vibe about Amazon’s service is that UMG is slipping watermarks into the downloads to enable tracking.

According to some stock analysts, Amazon’s global site traffic rose 13 percent year-over-year in July and August.

The thing that attracts me to the Amazon model is the flexibility. The ala carte digital music can be used on any player, with any software and reproduced on as many devices as you want. It does not expire and you are not required to subscribe to any service or use any specialized players or software. This, in my opinion, is the business model of the future. As Amazon’s catalog expands, I expect that it will become increasingly more competitive than Apple.

The Motley Fool described Amazon’s chances for success in the digital music download business as follows:

Amazon sold $10.7 billion worth of merchandise last year — $7.1 billion in the form of media — but at issue here is more than just respect for Amazon’s girth. Amazon is a trusted source in music. Now it also happens to offer the better deal. If you have a choice of paying $0.89 on Amazon for a higher-quality track with no DRM, or $0.99 for a lower-quality track with portability restrictions, where will you turn?

I can only add that Amazon has an incredible database of customer preferences and cross-references. Amazon does an amazing job at suggesting impulse purchases.Most consumer already have an established account with Amazon that has established preferences. Amazon is the Wal-Mart of online merchandisers, the king of the Internet in sales. I believe it will succeed where others have failed.

There is a very well written blog entry by McQuinn on the blog MCQESQ entitled The Future of the Music Industry.  You can read the article in its entirety here, and it is well worth the effort.  Crossroads copy2It attempts with acute perception and finesse to dispel the rampant rumors that the music industry conglomerates are are a dying breed of dinosaurs.  The essence of the authors opinion are as follows:

It’s popular to bash the labels (especially the majors) and to celebrate their apparently imminent demise.  For me, there is no pleasure in seeing people get laid off and large companies go bankrupt in any industry.  But I also dispute the idea that labels (in general) have been a bad thing for music. . . .  Without record labels recording and promoting music, we would never have heard of most of the artists that we now recognize as music legends. 

I wrote similar sentiments back in 2000 when Courtney Love bashed the very industry which gave her soap box any credibility at all.  In the article by Mcquinn, the author is not attempting to defend all record labels nor the actions of all record industry professionals, but successfully points out that without the music industry moguls’ promotion and even love of music, there would be no “superstars” for us to download!  There would only be garage bands. Ugh! (no disrespect to any particular garage band intended, but we must realize there is a reason why some bands “make it” and some don’t).

I tell my clients that they should consider the major label to be not only their marketing arm, but a bank!  The fact is, a major label will customarily spends upward to 3–5 million dollars to record, advertise, market and promote ONE act.  Granted, much of that investment is recoupable from the artists’ royalties (meaning that the artist must pay it back the money back of earned royalaties – the artist doesn’t pay it back if the label cans them), however, it still garners the artist a very valuable commodity:  name recognition.  How many superstars can you name off the top of your head?  Madonna.  McCartney.  Garth.  Prince.  Dolly.  The Eagles.  Elvis.  Elton John.  I may be dating myself a bit here, but you get the idea – without the record labels, these artists would not have what they have today – the ability to annouce a concert date and sell it out a 200,000 seat venue within hours, for example.  Is it totally fair to denounce the industry that helped these artists become the superstars that they are?  Is it fair to expect that industry to take no profits from the product we so much enjoy? 

So, what about the rumor that the major labels are heading for an imminent demise?  A recent article in the September 2007 issue of Country Aircheck entitled Music Sales at a Crossroads – Labels Face the CD’s Swan Song gets a little more specific.  The article cites RIAA-compiled data that illustrates that the gross sales of the CD format have diminished by almost one third since 1999, when it was over 14 billion, to 9 billion last year.  In the country genre, where the CD format is still a popular one, total sales through September 2007 were 31 million units, whereas the genre tallied a total of 75 million units last year.  Overall, total sales of CD for all genres is down 20% over the same time last year, a very significant drop.  While I do not believe the music industry is going away, I do believe that the CD format will ultimately be gone.  Tower’s demise was a forecast of this inevitability.

In the past, loss in profits from one format meant a rise in profits from another format, as, for example, when the CD format replaced records and cassettes, or when cassettes replaced 8–tracks (for those of you old enough to remember tape-based product).  But in today’s market, the sell of digital downloads is not generating enough profilt to offset the loss of profits from the demise of CDs.  Why, you might ask?  I think all of us know that the reason for this is that the majority of songs being consumed today are either ripped from somone else’s CD or iPod, or they are obtained over the P2P networks.  Those methods of obtaining music do not profit the artist, the songwriter, or, of course, the record labels.

McQuinn’s article points out that the label must find alternative methods of making profits, and mentions touring, merchandising and expanded licensing.  This is not a new concept as, in fact, I have already started seeing contracts from labels taking an interest in more of the revenue streams than they have in the past.  As Joel Galante, chairman of Sony BMG Nashville, points out in the Country Aircheck article, “you can’t have the label engine driving everything and being compensated the way it was before.  We are taking most of the risk and there are a lot of revenue streams making money.”  The trend in the music industry is for more independent-type deals with the artist in which the artist actually becomes a partner with the label.  I also believe that we will see a resurgence of the “single” concept and/or the “mini-album” and a shift away from the 10–12 song album idea.

The music industry will also find reprive in the form of direct-to-retail marketing.  The Eagles release through Wal-Mart is only one in a long chain of well-known artist who have found their own path to the retail market — Prince, McCartney, Radiohead, Nine Inch Nails — circumventing the Big Four:  Song BMG, Warner, UMG and EMI.  These artists are certainly blazing new trails and have been successful.  The major labels, however, still maintain that they have the edge when it comes to developing and promoting artists and/or distributing their product.  In view of the success of the aforementioned artists, however, this point is certainly not a given anymore. 

We are, as I said in earlier articles and blogs, facing a new paradigm in the music industry.   The major labels have yet, in my opinion, found the holy grail of digital downloads.  What can the labels do to move into the 21st century?  The answer cannot be yielding 90% of the market to iTunes.  Labels have to take the lead of EMI and UMG and offer their music without any digital rights management — after all, the music on CDs is DRM-free!  They must abandon the misplaced trust in “subscription-based” services which require monthly fees.  As I have maintained in my ten years of analyzing and thinking about this issue, I believe that they must do what all good entrepreneurs have done:  find a price point that will make it foolish for people to download music through a P2P and risk litigation.  Sell the product at a reaonsable price.  Most people, myself included, want to pay for their music — they just don’t want to overpay for their music.  The first configuration of label and online distributor that finds that right combination of value and profit — i.e. the right price point — will be the significant winner in my opinion.