Cover bands, "tribute" bands and royalties

dcrigger

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Great great stuff - thanks for sharing all of this...

Though I think there's still some confusion regarding releasing covers (someone else's song with a new arrangement) on CD, streaming, etc (not sheet music as I get that is a different thing)... or at least I'm confused.

So yes, you performing a Hendrix song is permissible. But a CD, sheet music, etc. even based on that performance you would need permission from the copyright holder as I described previously.
My understanding - after pursuing the Harry Fox Agency site a bit - is that the mechanical license to distribute CD's and streaming files of say, my new arrangement of a Jimi Hendrix tune is a compulsory license. So while a license is needed for this - permission isn't. As the license is compulsory and the fees are pre-determined

Make note that "musical arrangements" is the second description of common derivative work Below by the copyright office.
The following is all quoted exactly from the US Copyright office document:
(Including only what's relevant to music)

A derivative work is a work based on or derived from one or more already exist-
ing works. Common derivative works include translations, musical arrange-
ments
, motion picture versions of literary material or plays, art reproductions,
abridgments, and condensations of preexisting works.

To be copyrightable, a derivative work must incorporate some or all of a
preexisting “work” and add new original copyrightable authorship to that work.
The derivative work right is often referred to as the adaptation right. The fol-
lowing are examples of the many different types of derivative works:
• A motion picture based on a play or novel
• A translation of an novel written in English into another language
• A musical arrangement of a preexisting musical work

Right to Prepare Derivative Works
Only the owner of copyright in a work has the right to pre-
pare, or to authorize someone else to create, an adaptation of
that work.
And so I believe it follows that while my pretty drastically re-arranged version of Foxey Lady could be considered a derivative work - that would require going to the rights holder for permission to share in the resultant royalties that version might earn. Which obviously I won't do - as they won't agree. And is why hardly any artist who covers other people's works don't either.

As Burt Bacharach was never going to give up a piece of "The Look of Love" for Sergio Mendes to re-arrange into a second hit for that song. Nor Lennon-McCartney for Brazil '66's arrangement of "Fool On The Hill" or Dylan for Hendrix's "All Along The Watchtower".

So while the copyright law allows for arrangements to be registered as derivative works... in the world of pop record making (with the exception things like the Eric Carmen song) does anyone ever even try to claim the contribution of a new arrangement as grounds for sharing publishing royalties? Don't they just "eat" the contribution or expense of creating a new arrangement as part of the record making process.

My understanding that common practice is that arranging (when we used to use actual arrangers) was a total work for hire situation - with no backend, beyond whatever union contract might exist (for orchestration and not copying - not arranging).

Am I wrong with this?

Thanks
 

MusicianMagic

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Great great stuff - thanks for sharing all of this...

Though I think there's still some confusion regarding releasing covers (someone else's song with a new arrangement) on CD, streaming, etc (not sheet music as I get that is a different thing)... or at least I'm confused.



My understanding - after pursuing the Harry Fox Agency site a bit - is that the mechanical license to distribute CD's and streaming files of say, my new arrangement of a Jimi Hendrix tune is a compulsory license. So while a license is needed for this - permission isn't. As the license is compulsory and the fees are pre-determined



And so I believe it follows that while my pretty drastically re-arranged version of Foxey Lady could be considered a derivative work - that would require going to the rights holder for permission to share in the resultant royalties that version might earn. Which obviously I won't do - as they won't agree. And is why hardly any artist who covers other people's works don't either.

As Burt Bacharach was never going to give up a piece of "The Look of Love" for Sergio Mendes to re-arrange into a second hit for that song. Nor Lennon-McCartney for Brazil '66's arrangement of "Fool On The Hill" or Dylan for Hendrix's "All Along The Watchtower".

So while the copyright law allows for arrangements to be registered as derivative works... in the world of pop record making (with the exception things like the Eric Carmen song) does anyone ever even try to claim the contribution of a new arrangement as grounds for sharing publishing royalties? Don't they just "eat" the contribution or expense of creating a new arrangement as part of the record making process.

My understanding that common practice is that arranging (when we used to use actual arrangers) was a total work for hire situation - with no backend, beyond whatever union contract might exist (for orchestration and not copying - not arranging).

Am I wrong with this?

Thanks
First I think you are confusing what permission you seek for a derivative work. It is not seeking royalties. It is for permission to "Copy" the original work into a new arrangement. Copyright is the Right to Copy.
How that is negotiated is not governed by law. There also is no law that demands someone that contributed to a derivative work be credited or earn royalties. So Lennon-McCartney (or more likely the administer for Northern Songs) negotiated with someone at A&M records and would not give up credit to allow the derivative work. Again, no law specifies credit or royalties must be given. In fact there is a history of songwriters that were hired to write original songs that would not retain either credit or royalties.
Great example is Weird Al. He creates derivate works (Parody songs) and needed permission to record, distribute CD'S, vinyl, tapes, sheet music, etc. On occasion he did not get permission and did not record those songs. The songs he did some he got credit & royalties shared with the original composers. Some he did not. As I said in my first post in this discussion, sometimes its still profitable even if you do not get royalties as a songwriter.

Last. An Arranger may be hired just for that job of adapting a song. But there is no law that demands that Arranger gets either credit or royalties. But someone. Band, musician, Producer, Record Label, etc. must get permission to be able to distribute that derivative work.
 

High on Stress

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Arrangement is not included in the copyright on the original work. The lyrics and melody are but the bassline, riffs, beats etc. in the recording are not. Derivative works such as publishing a new arrangement (i.e. a cover version with an arrangement different than the originally recorded version) would require permission from the copyright holder.
 

dcrigger

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First I think you are confusing what permission you seek for a derivative work. It is not seeking royalties. It is for permission to "Copy" the original work into a new arrangement. Copyright is the Right to Copy.
How that is negotiated is not governed by law. There also is no law that demands someone that contributed to a derivative work be credited or earn royalties. So Lennon-McCartney (or more likely the administer for Northern Songs) negotiated with someone at A&M records and would not give up credit to allow the derivative work. Again, no law specifies credit or royalties must be given. In fact there is a history of songwriters that were hired to write original songs that would not retain either credit or royalties.
Great example is Weird Al. He creates derivate works (Parody songs) and needed permission to record, distribute CD'S, vinyl, tapes, sheet music, etc. On occasion he did not get permission and did not record those songs. The songs he did some he got credit & royalties shared with the original composers. Some he did not. As I said in my first post in this discussion, sometimes its still profitable even if you do not get royalties as a songwriter.

Last. An Arranger may be hired just for that job of adapting a song. But there is no law that demands that Arranger gets either credit or royalties. But someone. Band, musician, Producer, Record Label, etc. must get permission to be able to distribute that derivative work.
Sorry to keep pressing a point - but beyond the live performance thing, the whole adding some covers to a self-produced band CD is probably the most likely activity that musicians here on this board are likely to engage in.

And Weird Al is not at all a typical example of that. Because.... getting back to the Harry Fox agency documentation and compulsory mechanical licenses. My understanding is that anyone can cover anything and sell copies of it in physical form (CD's, records and actually streaming) - if they apply for and pay for the compulsory license. I don't think this permission can be denied - unless the copyright holder can prove that the licensed artist has "defaced" the work.

The biggest case I remember regarding this was the Roy Orbison estate trying to make the hip hop guys pull their cover of Pretty Woman. A case they loss. I've never heard of a case regarding this over a musical re-arrangement of a work - even drastic ones. But when you start adding lyrics - or changing lyrics - it is easy to change a song's meaning in ways the author could see as defacing.

IIRC the court disagreed with the Orbison folks and record stayed on the market.

As for Weird Al - what I've always heard (and maybe Bermuda can clarify) is that Weird Al just doesn't want to step into that. Even if he has a right to do what he does most of the time without specific approval, the choice to 100% sidestep even a remote chance of getting mired in such a lawsuit.

But again - that has really nothing to do with the band that wants to include some classic rock tunes on their new CD.... I've worked on a bunch of CD's like that - and no one had to contact each individual publisher for permission. They just filled out the forms from Harry Fox, cut a check... and they were good to go.

I think where you may have things confused is thinking that the typical cover release is a derivative work - or is registered as a derivative work. There is no copyright application involved with releasing a cover at all - because the new artist isn't claiming any ownership at all.

And while I get the letter of the law states that with that compulsory license the new artist agrees not to perform the original work as-is. In practice - tons of modification is common. Why.... brings us back to why "arrangements" are not considered part of the copyright. Lyrics and melody - if you change them too much (like in a parody) you're really talking a derivative work. If you throw out the lyrics and melody completely - then you're just stealing someone's famous song title - and thus you don't qualify for a compulsory license.

But if you take a Beatles tune - put in an odd meter, add some very modern harmony, and perform it instrumentally with a big band.... compulsory license. No permission necessary beyond that.
 

MusicianMagic

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My understanding is that anyone can cover anything and sell copies of it in physical form (CD's, records and actually streaming) - if they apply for and pay for the compulsory license. I don't think this permission can be denied - unless the copyright holder can prove that the licensed artist has "defaced" the work.

I think where you may have things confused is thinking that the typical cover release is a derivative work - or is registered as a derivative work. There is no copyright application involved with releasing a cover at all - because the new artist isn't claiming any ownership at all.
And I think I already said that :dontknow:
If you should want to record or play that original song and arrangement you are fine without prior permission as long as the license fee is paid.
The biggest case I remember regarding this was the Roy Orbison estate trying to make the hip hop guys pull their cover of Pretty Woman. A case they loss. I've never heard of a case regarding this over a musical re-arrangement of a work - even drastic ones. But when you start adding lyrics - or changing lyrics - it is easy to change a song's meaning in ways the author could see as defacing.
IIRC the court disagreed with the Orbison folks and record stayed on the market.
Also as I previously said, the law has no specifics so each case is individual.

And while I get the letter of the law states that with that compulsory license the new artist agrees not to perform the original work as-is. In practice - tons of modification is common. Why.... brings us back to why "arrangements" are not considered part of the copyright. Lyrics and melody - if you change them too much (like in a parody) you're really talking a derivative work. If you throw out the lyrics and melody completely - then you're just stealing someone's famous song title - and thus you don't qualify for a compulsory license.

But if you take a Beatles tune - put in an odd meter, add some very modern harmony, and perform it instrumentally with a big band.... compulsory license. No permission necessary beyond that.
Kevin Rowland was forced to pull a version of Bruce Springsteen‘s song from his forthcoming Creation album ‘My Beauty’ because The Boss didn’t approve the change in lyrics.

Lady Gaga says no to Weird Al Yankovic regarding 'Born This Way' parody

the Highlanders were forced to fly the white flag after the Gallaghers - who once rejected a request by the Smurfs to cover Wonderwall because they hated the cartoon when they were children - instructed their lawyers to refuse them permission.

For their debut album, 1986’s Licensed To Ill, the Beastie Boys used The Beatles’ I’m Down as the template for a radically re-worked version of the song, but were refused permission to use the track by Michael Jackson, who had acquired The Beatles’ Northern Songs publishing company. Jackson couldn’t stop bootleg versions of the song appearing however.

I have other things to do now :confused2:
 

Frank Godiva

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But what about all that stuff on You Tube?

“ The New York Times reported last week, that YouTube disclosed that it paid music companies, musicians and songwriters more than $4 billion in the prior year. That came from advertising money and something that the industry has wanted forever and is now getting — a cut of YouTube's surprisingly large subscription business. (YouTube subscriptions include an ad-free version of the site and a Spotify-like service to watch music videos without any ads.)

The significance of YouTube's dollar figure is that it's not far from the $5 billion that the streaming king Spotify pays to music industry participants from a portion of its subscriptions. (A reminder: The industry mostly loves Spotify's money, but some musicians say that they're shortchanged by the payouts.)

Subscriptions will always be a hobby for YouTube, but the numbers show that even a side gig for the company can be huge. And it has bought peace by raining some of those riches on those behind the music. Record labels and other industry powers "still don't looooove YouTube," Lucas Shaw, a Bloomberg News reporter, wrote this week. "But they don't hate it anymore."

The YouTube turnabout may also show that complaining works. The music industry has a fairly successful track record of picking a public enemy No. 1 — Pandora for awhile, Spotify, YouTube, and more recently apps like TikTok and Twitch — and publicly browbeating it or playing one rich company against another to get more money or something else they wanted.

While the article cites concerns that YouTube is still paying too little (and failing to stop piracy), "just maybe, YouTube has shown that it's possible for digital companies to both upend an industry and make it stronger."
 

JimV

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I really appreciate this thread. I’m always trying to learn more about publishing .... thanks to all who contributed !
 

Tornado

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Sorry to keep pressing a point - but beyond the live performance thing, the whole adding some covers to a self-produced band CD is probably the most likely activity that musicians here on this board are likely to engage in.

And Weird Al is not at all a typical example of that. Because.... getting back to the Harry Fox agency documentation and compulsory mechanical licenses. My understanding is that anyone can cover anything and sell copies of it in physical form (CD's, records and actually streaming) - if they apply for and pay for the compulsory license. I don't think this permission can be denied - unless the copyright holder can prove that the licensed artist has "defaced" the work.

The biggest case I remember regarding this was the Roy Orbison estate trying to make the hip hop guys pull their cover of Pretty Woman. A case they loss. I've never heard of a case regarding this over a musical re-arrangement of a work - even drastic ones. But when you start adding lyrics - or changing lyrics - it is easy to change a song's meaning in ways the author could see as defacing.

IIRC the court disagreed with the Orbison folks and record stayed on the market.

As for Weird Al - what I've always heard (and maybe Bermuda can clarify) is that Weird Al just doesn't want to step into that. Even if he has a right to do what he does most of the time without specific approval, the choice to 100% sidestep even a remote chance of getting mired in such a lawsuit.

But again - that has really nothing to do with the band that wants to include some classic rock tunes on their new CD.... I've worked on a bunch of CD's like that - and no one had to contact each individual publisher for permission. They just filled out the forms from Harry Fox, cut a check... and they were good to go.

I think where you may have things confused is thinking that the typical cover release is a derivative work - or is registered as a derivative work. There is no copyright application involved with releasing a cover at all - because the new artist isn't claiming any ownership at all.

And while I get the letter of the law states that with that compulsory license the new artist agrees not to perform the original work as-is. In practice - tons of modification is common. Why.... brings us back to why "arrangements" are not considered part of the copyright. Lyrics and melody - if you change them too much (like in a parody) you're really talking a derivative work. If you throw out the lyrics and melody completely - then you're just stealing someone's famous song title - and thus you don't qualify for a compulsory license.

But if you take a Beatles tune - put in an odd meter, add some very modern harmony, and perform it instrumentally with a big band.... compulsory license. No permission necessary beyond that.
Your understanding of compulsory licensing with the Harry Fox agency is what I was taught in a college music business class many years ago. People are generally just being nice and not wanting to ruffle feathers when they "ask permission" to record a cover or parody. They really don't need it. And from what I remember, Coolio wasn't happy about Amish Paradise. There was a miscommunication between Al's and Coolio's people, but there was absolutely nothing Coolio could do about it.
 

dcrigger

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And I think I already said that :dontknow:



Also as I previously said, the law has no specifics so each case is individual.


Kevin Rowland was forced to pull a version of Bruce Springsteen‘s song from his forthcoming Creation album ‘My Beauty’ because The Boss didn’t approve the change in lyrics.

Lady Gaga says no to Weird Al Yankovic regarding 'Born This Way' parody

the Highlanders were forced to fly the white flag after the Gallaghers - who once rejected a request by the Smurfs to cover Wonderwall because they hated the cartoon when they were children - instructed their lawyers to refuse them permission.

For their debut album, 1986’s Licensed To Ill, the Beastie Boys used The Beatles’ I’m Down as the template for a radically re-worked version of the song, but were refused permission to use the track by Michael Jackson, who had acquired The Beatles’ Northern Songs publishing company. Jackson couldn’t stop bootleg versions of the song appearing however.

I have other things to do now :confused2:
I'm sorry - and I get you are tired of this conversation - but I just don't get the reasoning behind ignoring the law dealing with mechanical licenses as it applies to this discussion....

US Code Title 17, Chapter 1, Section 115(a)(2) states: "A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work ..." thus preventing mechanical licenses being used to make substantially derivative works of a piece of music.

This law sets apart 99% of covers from more derivative works like parodies. Every one of your examples above deals with parodies or new versions making significant changes to the original's basic melody or fundamental character.

And versions that make changes to that degree are often, in fact, derivative works and as such are not entitled to a compulsory license. Meaning that the all normal covers are.

If I, like countless artists before me, want to release a CD of Beatles tunes, re-arranged for a jazz combo - stylistically sounding nothing like the Beatles records, but still recognizable as those Beatles tunes.... or if I want to release an album of Burt Bacharach tunes played as death metal.... as long as I've left the lyrics predominantly intact and the tune is still recognizable as the tune - as the artist, producer, label owner of those releases I would not have to get permission from anyone. I would simply obtain a "can't be denied" compulsory license (which would serve as notification to the copyright right owners that I'm doing this) - but they cannot deny me that license - without taking me to court and proving (with the burden being 100% on them) that I have "not changed the basic melody or fundamental character of the work". And in those two specific instances, they would most certainly lose. Because I am legally allowed to do that - without question and without permission. As long as I pay for the license.

I'm only dragging this out because this is completely contrary to what you wrote in posts #53 and #57 - where you lumped all covers in with derivative works and wrote that all covers require permission to be released - which I believe is simply not true.

Most covers are simply uses of a work that are allowed by law - without permission - as long as the mechanical license notification happens and the pre-determined fees are paid (again, see Harry Fox Agency for details).
 

Northamusi

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dcrigger”s explanation is accurate and concise.

In regards to submitting a set list, it varies by country. I tour manage for a major act. When we perform in the US we are never required to submit a set list for PRO payments but when we tour the UK we always have to submit a set list and name the writers of each song.
 

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The one area where I agree permission is needed is when changing lyrics.
There are hundreds of jazz versions of Beatles songs, where the arrangement and chords have been radically altered. I don't imagine the composer has been consulted in depth on all of these.
Permission is not required to play Dire Straits songs live and make arrangement adjustments.
 

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But what about all that stuff on You Tube?
I don't like or agree with anything in your post to be honest. The 'business' press has often been misguided on the music industry at large, focussing on tech as a booming business, and then only looking at the top major labels, all of whom actually got into bed with tech years ago.
The music industry at large has been devastated by the impact of Youtube, Spotify, Pandora etc. This has only been highlighted more by the ending of live shows during the pandemic.
I don't really understand what any of this has to do with the discussion anyway.
I have made videos explaining my role on a few hit records and my video income has all gone to the artists involved. That's the way Youtube works. But Youtube income is paltry compared to record sales from years ago.
You act like 'the music industry' has been unjustified in picking it's enemies.
Youtube has NOT upended the music industry and made it better. The vast majority in the industry has still lost a large part of their income over the last 20 years. The top major labels and their top 40 roster have all benefitted from streaming and tech in general, but that only represents about 10% of the music workforce.
 

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I have other things to do now :confused2:
Yeah, all of your examples involve change of lyrics, except the Oasis example which regards licensing for media. Yes, artists have to license use of their recordings when used in TV and film. And many artists have stopped politicians using their recordings at political rallies.
If you record a cover that doesn't involve changing the meaning of the lyrics, you don't have to ask permission.
If you want to use an artists ACTUAL recording the song then YES you always have to seek agreement to do so.
 

Frank Godiva

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I don't like or agree with anything in your post to be honest. The 'business' press has often been misguided on the music industry at large, focussing on tech as a booming business, and then only looking at the top major labels, all of whom actually got into bed with tech years ago.
The music industry at large has been devastated by the impact of Youtube, Spotify, Pandora etc. This has only been highlighted more by the ending of live shows during the pandemic.
I don't really understand what any of this has to do with the discussion anyway.
I have made videos explaining my role on a few hit records and my video income has all gone to the artists involved. That's the way Youtube works. But Youtube income is paltry compared to record sales from years ago.
You act like 'the music industry' has been unjustified in picking it's enemies.
Youtube has NOT upended the music industry and made it better. The vast majority in the industry has still lost a large part of their income over the last 20 years. The top major labels and their top 40 roster have all benefitted from streaming and tech in general, but that only represents about 10% of the music workforce.
You are free to disagree with the facts as reported in the NYT. I think your view is dated. Hence the title of the article:

YouTube is not the Villain Anymore

Here is the cite.





Some more background on streaming during lockdown


 
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pgm554

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Don't forget jukeboxes and background music are also collected as royalties.
Just like a bar pays a higher fee for sports programming than an individual household ,the same holds truer for piped in music.
It's included in the subscription fee.
 

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I think your view is dated. Hence the title of the article:

YouTube is not the Villain Anymore
I'm a full time pro releasing my own music on streaming. My view isn't dated. The winners here are the top major labels and the top 40 artists.
Everyone else, which is about 90% of the industry workforce, has been screwed by streaming and piracy. We all took it on the chin, adapted by playing live 365 days a year, but since the pandemic (March 2020) pretty much no one has played any shows. Meaning 90% of the industry hasn't been earning a living. Mid level artists, indie bands, self employed musicians and crew are all in desperate straits financially. And no, neither Bloomberg, Forbes or the NYT business section ever report on the majority of independent artists and musicians.

 

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I'm a full time pro releasing my own music on streaming. My view isn't dated. The winners here are the top major labels and the top 40 artists.
Everyone else, which is about 90% of the industry workforce, has been screwed by streaming and piracy. We all took it on the chin, adapted by playing live 365 days a year, but since the pandemic (March 2020) pretty much no one has played any shows. Meaning 90% of the industry hasn't been earning a living. Mid level artists, indie bands, self employed musicians and crew are all in desperate straits financially. And no, neither Bloomberg, Forbes or the NYT business section ever report on the majority of independent artists and musicians.

Well let’s hope the tide is turning more in the direction of the hard working people like yourself. Your greatly appreciated.
 

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Thanks. Yes, let's hope. But the music industry has changed massively over the last 16 months. I don't think some musicians (or bands) are coming back.
 

K.O.

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Don't forget jukeboxes and background music are also collected as royalties.
Just like a bar pays a higher fee for sports programming than an individual household ,the same holds truer for piped in music.
It's included in the subscription fee.
I've been working for a jukebox operator for nearly 30 years now.

Jukeboxes are in a separate category. There is an agreement negotiated with the various PRO firms that covers the fees for the use of the music played on the box. In the days of records and CD's there were actual little license tags that had to be displayed on every jukebox which indicated that an annual fee had been paid for that particular jukebox. Buying 1 license was pretty expensive but the price per license dropped considerably if you were buying a lot of them ( I think we paid about $30 each for around 100 of them back in the day). These licenses were, at one time, the same size as the record title strips and you'd slide them into an extra slot on the title rack.

With modern downloading jukeboxes the company that makes the jukebox maintains a financial interest in the income from the jukebox, taking a percentage of the money it earns. Rather than having a physical license affixed to the box these companies negotiate their own deals with the publishing companies.

All this just covers the jukebox and the music played on it. If the bar or club has ANY other music being played they'll have to deal with ASCAP, BMI, etc. for that on their own.

It all gets quite complicated as the laws can't keep up with the advances of technology as it relates to music reproduction and performance.
 

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Thanks. Yes, let's hope. But the music industry has changed massively over the last 16 months. I don't think some musicians (or bands) are coming back.
You made a great point earlier as well; what does this have to do with the OP?

As you said, things have permanently changed and the live steam may well become a fixture an alternative revenue stream for all live performances.


“ Just last week, Bandsintown released the results of a survey they conducted with thousands of their subscribers and, according to those results, livestreams will continue to be popular after live music returns.

They surveyed just under 7,700 users and found that 86% have watched at least one music live stream during the past 12 months and 55% will continue to tune in for live streams even after in-person concerts return.

31% of their fans have streamed seven live concerts or more and 62% of fans have paid for a virtual concert experience.

The survey also revealed some numbers from the artists’ perspective including the fact that 22,000 artists have promoted more than 79,000 livestreams via Bandsintown. 85% of these artists indicated that they will continue to make livestreams a permanent part of their performing plans after in-person shows return.”



The metal bands seem all over it.



It’s the venues that are getting smart on how to do this.

"37M Network is the ONLY place to stream the nation’s BEST bands and enjoy 100s of hours of 37 Main videos on demand. From our stage to your couch, thank you for rockin’ with 37 Main!

Each subscription includes every 37 Main concert at our Buford and Avondale Estates locations, unlimited access to 37 Main’s premium content – available to you anywhere, anytime, on any device. Cancel anytime without obligation."






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