The Problem with Muzak

IMAGINE YOU ARE IN AN AIRPORT, and you have forgotten to eat lunch. It’s a mistake you will pay for with a dull, expensive dinner. Hungry, meandering, you happen upon one of those iPads that line every other table, a machine that allows you to order without talking to other humans—a circumstance provided by capitalism’s boundless quest to cash in on convenience. Of course, this doesn’t make your experience any easier: within minutes, an employee scrambles over to assist you with the device, which keeps freezing when you choose the “bowls” tab. “Can I just tell you my order?” you ask, half-laughing, thoroughly hoping for a moment of commiserating solidarity over this disruptor™ fail. Instead she grabs the thing and helps you finalize your purchase. This person hates her job, but she’s lucky that, for the moment, she still has it.

Read more: https://thebaffler.com/salvos/the-problem-with-muzak-pelly

  • Fairness Rocks news

    SOURCE: The Baffler

    Date: December 4, 2017

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  • A ‘Supernatural’ Profits Fight, and the AT&T-TW Merger Issue That Few Are Discussing

    https://www.hollywoodreporter.com/thr-esq/a-supernatural-profits-fight-at-t-tw-merger-issue-few-are-discussing-1059396

  • Fairness Rocks news

    SOURCE: The Hollywood Reporter

    Date: NOVEMBER 17, 2017

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  • ‘I made just 97p in a month from plays of Brewing Up A Storm on YouTube’

    Read more:

    http://www.thejournal.ie/imro-report-musicians-ireland-3700302-Nov2017/

  • Fairness Rocks news

    SOURCE: The Journal

    Date: November 16, 2017

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  • W&DW Congress support spinal tap litigation in seeking share in success of their creation

    The following resolution was unanimously adopted at the Writers & Directors Worldwide Congress in Venice in November 2017:

    “Writers & Directors Worldwide salute the bold stand by the creators of the beloved film comedy This is Spinal Tap. In bringing a formal legal challenge the creators of the music & the film are simply seeking the payment they were promised by contract. Too often we, the talent, do not share in the success of our work. We welcome all challenges to opaque accounting, which symbolizes longstanding abusive corporate practices against the livelihoods of creative talent. We hope that the “Fairness Rocks ” banner, that has come to be associated with this legal action, can help our own efforts to unite the world’s different creative disciplines.  Authors of film, music, and the written word together with the performers, who give life to the work, are the bedrock of global culture and deserve respect, reward and fairness. “

  • Fairness Rocks news

    SOURCE: Writers & Directors Worldwide

    Date: November 16, 2017

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  • ‘Columbo’ Architects Sue Universal Over Unpaid Profits From Detective Drama

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    ‘Columbo’ Architects Sue Universal Over Unpaid Profits From Detective Drama

  • Fairness Rocks news

    SOURCE: Deadline Hollywood

    Date: November 14, 2017

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  • The Music Aggregator: Getting Unsigned Artists and Boutique Record Labels into the Digital Marketplace

    The Music Aggregator: Getting Unsigned Artists and Boutique Record Labels into the Digital Marketplace

    Intermediaries emerge in markets to help reduce inefficiencies by lowering transactions costs, providing better information about market standards, technical requirements (in this case of music) and increasing quality by enforcing compliance.

     

    Aggregators in the recorded music industry act as legal intermediaries between small independent owners of sound recordings – usually artists and record labels – and digital services. They provide a rights holder the opportunity to have their recordings licensed to many digital services through a single entity.

     

    To use an aggregation service a rights holder must grant all rights necessary to enable the aggregator to sub-license their recordings to digital services. There is no transfer of ownership in this contractual relationship, only a short term assignment of rights (usually a year or two). In return, the aggregator agrees to license the recordings to digital services, collect all royalties due, and to account and regularly pay the rights holder.

     

    An aggregator’s revenue mostly comes from charging rights holders, not digital services. There are two dominant pricing models used across the industry. The first model is based on sharing the income generated by the exploitation of the recordings, from which aggregators retain an agreed share. In the second model rights holders receive 100% of the royalties in exchange for a fixed fee per track, or per month. This option is usually preferred by rights holders that have fewer recordings and high sales expectations.

     

    Most aggregators also act as technical intermediaries between rights holders and digital services; these aggregators are usually referred to as distributors. As well as licensing recordings, they store, encode and deliver audio files, artworks and all the underlying data to digital services. This is usually offered for an additional fee per track, or a higher commission rate (usually between 10% and 25%).

     

    So, do aggregators solve all the problems of supplying services with music, or do they introduce new problems?

     

    Many rights holders don’t have the resources or bargaining power to license their recordings to hundreds of digital services on favourable terms, and manage royalty reporting and payments on a global scale. Aggregators have also helped digital services reduce the legal and administrative cost involved in licensing a wide range of catalogues.

     

    However, by adding an additional layer between the artist and its audience, aggregators can reduce control and transparency over how and where recordings are exploited. Whilst some aggregators are better than others, a number of NDAs in licensing contracts with digital services prevent them from sharing all information about the exploitation of their recordings with the creators and the rights holders to whom they are providing the service. This can be frustrating for the talent and for the label.

     

    For a recording artist that controls their own work and wants to reach the market, there are many aggregators and deals on offer. Bearing in mind the caveats outlined above, here are a number of variables that should help navigate between aggregation deals:

     

    • Transparency: how much does the rights holder know about the exploitation of its recordings?

     

    • Third Party Rights: Is the aggregator clear about the position in respect of third party rights?

     

    • Control: does the rights holder have any control over the exploitation of its recordings?

     

    • Termination: is the process made easy by the aggregator? Are there fees involved?

     

    • Reporting and Payment Frequency: how frequent are reports and payments sent? Is there a minimum payment level?

     

    • Fees: what is the pricing model? If the aggregator retains a share of the revenue, is all revenue included?

     

    • Exclusivity: is it possible for rights holders to use the services of another aggregator for the same recordings?

     

    • Additional Intermediaries: does the aggregator license recordings to digital services directly or does it use another aggregator, thereby introducing another layer between the talent and the marketplace with potentially an additional revenue share?

     

    • Audit: does the rights holder have the possibility to audit the aggregator’s accounts?

     

    A traditional record label or publisher is strictly speaking an aggregator of sorts, but their acquisition of the talent’s rights, and their long term (sometimes permanent) retention of those rights transforms them into a more conventional corporate entity. The large copyright holdings then become capital assets to be manipulated and used to leverage growth. Further, their contractual accounting obligations to the talent apply only when the income can be directly and identifiably matched to individual works. This condition serves to allow a label or publisher to retain lump sums for the benefit of shareholders and executive reward, and, crucially, acts as a powerful disincentive to their developing accurate reliable works and writer/performer data.

     

    The true aggregator’s flexibility, model of accounting to clients and the granular nature of usage analysis creates a less impeded revenue flow through to the talent and arguably makes an aggregator a more attractive partner for many music creators and boutique catalogues.

     

    © Pauline Bertinet, The state51 Conspiracy http://state51.com/

  • Fairness Rocks news

    SOURCE: The state51 Conspiracy

    Date: November 9, 2017

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  • Rights and Revenues for Actors

    Rights and Revenues for Actors

     

    Behind the Glamour

    Performers working in the audiovisual sector, whether in film, television or digital media, have been effectively subsidising these industries for as long as they have existed. This may sound like a bold statement, but it is in fact quite accurate for an overwhelming majority of them. Behind the glamour there are countless small players moving the audio visual industry.

    What performers want most is to entertain a public, either live or on camera. It is their ultimate raison d’être, their passion, and they would endure just about anything to be offered a chance to express their talent. This is what makes them great, but also what makes them extremely vulnerable. Most of them come unprepared, as they enter this business, to face a tough and highly competitive environment.

    The image portrayed by the media is misleading: most performers do not live a life of riches and in fact struggle to make ends meet and pay off their monthly bills. Audiovisual performers have highly irregular career patterns, as they constantly need to be cast for new roles, juggling between short-term employment opportunities in the industry, casual work and unemployment. Every new opportunity to be cast for a role may be their last.

    The irregular nature of their career is a stressful component of their daily lives but also a hindering factor as they seek social protection. Social security systems are often ill-equipped to deal with freelance work, as they continue to be built on more traditional, open-ended forms of employment. As a result, many performers working in the audiovisual sector have limited or no social benefits. Adding insult to injury, they are increasingly warmly encouraged to embrace self-employment, often with a view to reducing employer costs. Under antitrust rules they may then find themselves classed as “undertakings” and therefore banned from negotiating acceptable minimum terms and conditions collectively. As independent contractors, they also have to take up private insurances to assist with anything from medical treatment to retirement. Many performers cannot afford to do so and thus find themselves in dire straits should they hit a bad patch.

    Contractual”Freedom”, Perpetual Exploitation and Perpetual Loss

    One singular characteristic of their work, however, is that their performances can be successfully exploited on various media and for a long time, continuing to generate fresh strings of revenue. In light of their precarious professional status, it is immensely meaningful to them to get a fair share of the income generated by their work, over and above any fee that may have been paid to them for delivering the initial performance. Every little payment can make a huge difference to them.

    Only a handful of high profile performers actually have enough leverage to negotiate adequate fees and use payments, either in the form of residuals, royalties or a combination of both. Even in those cases, it may be challenging for them to know exactly how much revenue is due to them, for which use and, more generally, to enforce the terms of their contract. Additional pay-outs will typically be subject to prior cost recoupment and, oddly enough, this seems to be one of the few industries in the world operating at a perpetual loss.

    The only “contractual freedom” for performers with less bargaining power is to sign a contract over which they have no say – and thus get their next job – or to not sign that contract and face prolonged unemployment. When such performers are in a one-to-one relationship with a producer and without the benefit of a comprehensive union agreement, contracts are consistently one-sided and imbalanced. They are colloquially referred to as “buy-outs” and imply sweeping permissions for use of a performance, in all media, in perpetuity and in the entire universe in return for an often-symbolic, upfront payment.

    It is not uncommon for contracts to include abusive provisions with respect to future use and/or media, or even forcing the performer’s consent to deliver extra work, e.g. dubbing or marketing appearances, for no additional premium. Contractual “freedom” usually leaves performers empty handed. In many countries around the world, it is even normal practice for them to work without the benefit of a written contract, leaving them with no redress when seeking to claim what is due to them. Needless to say, most performers hardly dare to voice an objection for fear or being blacklisted and losing future job opportunities.

    Audio vs Audio Visual

    Many countries around the world still grant intellectual property protection to audio performances only. This is due to the fact that international norm setting struggled for many years to reach consensus on the rights of performers in film or audiovisual media. This incongruous situation finally came to an end with the adoption of the WIPO Beijing Treaty on the Protection of Audiovisual Performances in 2012, currently under ratification. Signed by 122 countries, the Treaty will not enter into force 30 eligible parties ratify or accede to it.

    The provisions in this Treaty are long overdue and will give audio visual performer key economic rights in relation to their performances to which licence fees would attach:

    • The right of reproduction
    • The right of distribution
    • The right of rental
    • The right of making available*
      *for more detail about the making available right see: Rights and Revenues for Music Performers.

     

    When implemented in national laws, the Treaty may finally grant an effective and meaningful protection to audiovisual performers and there certainly are built-in mechanisms to make this happen. This is not a given however.

     

    The potential advantage of these rights would be seriously undermined, where, for example, the national transposition legislates for the transfer to their producer of all these economic rights granted the talent. National legislation could do this by way of statutory presumptions. Such normative provisions would inevitably end up perpetuating the weak spot in which performers are customarily found right from the start and would be custom-made to satisfy the corporate interests of the industry.

     

    Understandably, a producer would not wish to negotiate terms and conditions with each and every performer that is cast for a production. However, there are much better ways to ensure the smooth running of business than by stripping all economic rights away from the performer at the point of contract. Certainly one of the best is the tried and tested method of concluding collective agreements with representative trade unions, setting out acceptable minimum terms and conditions. There is also the device of revenues from usage managed via collective management organisations which, in Europe, are obliged to meet legislative standards of governance and transparency. (See the US talent guilds and Collective Rights Management here)

     

    Collective Bargaining
    Union-negotiated agreements are the only way for most audiovisual performers to rely on a minimum safety net, above which they may try to reach individually. Most of them in practice will agree to work for those minimums that become, in essence, the industry standard. In addition to addressing key aspects of working conditions – e.g. working hours, rest periods, meals, health and safety, insurance coverage, etc. – collective bargaining agreements set out how much performers are to be paid when their performances are used in primary and secondary markets. In addition to performance fees, they may thus also establish residual payments or royalties, or a combination of both.(Broadly, a residual is a pre-established payment calculated as an agreed percentage that is determined by collective negotiation by a guild or trade body and is different depending on the type of exploitation. A royalty is calculated by reference to the revenue arising from the exploitation itself, and is established by contract and expressed as a percentage of a price base – for example, retail, or wholesale or as a percentage of the licence fee.) Compliance with these agreements grants a producer the necessary legal certainty when exploiting the performance, without the need to engage in time-consuming individual negotiations.

     

    Few talent unions, however, have gained enough leverage to stand strong at the bargaining table and improve the wellbeing of performers hired under the terms of those agreements. Those that can are notably those that managed to become very representative in countries with a sizeable audiovisual market. These unions have had to fight hard and in solidarity with each other to combat practices of a globalised industry such as flying talent across the planet not just to shoot on location but also to evade union jurisdiction. Where they have managed to do so successfully, it was always by building a stronger and cohesive membership.

     

    In several other countries, trade unions struggle, despite their efforts, to exert jurisdiction and influence over revenue-related matters. This is due to a variety of reasons: from assertive anti labour policies to the overzealous application of antitrust rules, the strong resistance of producer bodies or even the performers’ own perception of themselves as artists rather than workers.

     

    Performing is a highly skilled craft and without performers much of the entertainment our audiences enjoy on screen, television and digital new media would simply not exist. The content industry stands as a major GDP contributor and a powerful driver of innovation and technology. Films, television series, and other audiovisual content, including advertising, permeate our lives – not simply for people to enjoy but equally to be informed and educated. And yet, by and large, performers continue to subsidize these industries, as their creative skills are not adequately acknowledged and rewarded.

     

    The International Federation of Actors (FIA) represents performers’ trade unions, guilds and professional associations in about 70 countries. In a connected world of content and entertainment, it stands for fair social, economic and moral rights for audiovisual performers working in all recorded media and in live performance.

     

    In order to try and rebalance the interests of industry and the talent upon which industry depends the International Federation of Actors (FIA) together with three other organisations representing performers in Europe: AEPO-ARTIS (http://www.aepo-artis.org ), the International Federation of Musicians (FIM) and the International Artists’ Organisation (IAO) are carrying out a campaign to introduce into European legislation a right to remuneration for performers, collected from downloading and streaming platforms and managed by performers’ collective management organisations. Links to these organisations are found here on Fairness Rocks.

    The International Federation of Actors (FIA) http://fia-actors.com/

  • Fairness Rocks news

    SOURCE: FIA

    Date: November 9, 2017

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  • International Confederation of Societies of Authors and Composers (CISAC)

    International Confederation of Societies of Authors and Composers  (CISAC)  http://www.cisac.org/

    With 239 member societies in 21 countries CISAC represents more than 4 million creators from all geographic areas and all artistic repertoires; music, audio-visual, drama, literature and visual arts. CISAC has an important presence at WIPO and aims to secure fair remuneration for creators for the use of theirs works anywhere in the world. CISAC’s global policy and legal activities focus on promoting pro-creator legislation at international, regional and national levels across all artistic repertoires: music, audio-visual, drama, literature and visual arts.

    • The transfer of value from creators to digital intermediaries and the liability of service providers are at the top of CISAC’s agenda.   CISAC has developed an international lobbying campaign for a favourable interpretation of existing safe harbour laws in a manner that requires ISPs to remunerate creators for acts covered under exclusive rights.
    • In the audio visual sector CISAC advocates for an unwaivable and unassignable right of remuneration for audio-visual creators. An academic study on the importance of this right for directors and screenwriters has been commissioned Law Professor Raquel Xalabarder, a film copyright specialist and Chair of Intellectual Property at Universitat Oberta de Catalunya. The study examines the legal framework in countries that grant the right and develops arguments for the right’s implementation in countries that do not have it yet.
    • CISAC undertook a comprehensive private copying legislation analysis – the first global examination of private copying systems – to identify countries where societies may be able to collect remuneration under existing laws and to urge countries to amend laws to allow private copying systems where they do not exist.
    • CISAC campaigns for the universal implementation of the visual artists’ resale right to promote a new international treaty that would make the resale right mandatory.

     

     

  • Fairness Rocks news

    SOURCE: International Confederation of Societies of Authors and Composers (CISAC)

    Date: 9 Nov 2017

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  • International Artists’ Organisation

    International Artists’ Organisation https://www.iaomusic.org/

    IAO runs a global campaign for fairer treatment for music performers in the digital environment and works to promote a fairer and more transparent market place.

    In order to try and rebalance the interests of industry and the talent upon which industry depends the IAO together with three other organisations representing performers in Europe: AEPO-ARTIS (http://www.aepo-artis.org ), International Federation of Actors (FIA) and the International Federation of Musicians (FIM) are carrying out a campaign to introduce into European legislation a right to remuneration for performers, collected from downloading and streaming platforms and managed by performers’ collective management organisations.

    In the USA they are supporting the US Music First campaign to secure airplay royalties for US music performers. An international instrument – the 1961 Rome Convention – was dedicated to giving performers and phonogram producers legal protection of a similar nature as that for authors. Labels and performers are entitled to be paid a royalty (known as “equitable remuneration” and managed by collective licences) when their recordings and recorded performances are broadcast or performed. Despite the strength of the US music industry the United States is still not a signatory to the Rome Convention which is most disadvantageous to American performers.

     

     

  • Fairness Rocks news

    SOURCE: International Artists’ Organisation

    Date: 9 Nov 2017

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  • International Federation of Musicians

    International Federation of Musicians  https://www.fim-musicians.org/

    Since its inception in 1948, The International Federation of Musicians (FIM) has been working towards the recognition of intellectual property rights for music performers. FIM counts 70 members in 60 countries throughout the world. FIM has a permanent relationship with major intergovernmental organizations such as UNESCO, the International Labour Organisation, and WIPO. It is recognised and consulted by the Council of Europe, the European Commission and the European Parliament. It enables it to participate in crucial negotiations on the protection of performers where it can make the voice of musicians heard.

     

    FIM’s efforts have led or contributed to the adoption, at international level, of the Rome Convention (1961), the WPPT (1996) and the Beijing Treaty (2012). It seeks to establish international norms for contracting conditions, health and safety, performers legal and financial rights and works to promote cultural diversity.

     

    In order to try and rebalance the interests of industry and the talent upon which industry depends the FIM together with three other organisations representing performers in Europe: AEPO-ARTIS (http://www.aepo-artis.org ), International Federation of Actors (FIA) and the International Artists’ Organisation (IAO) are carrying out a campaign to introduce into European legislation a right to remuneration for performers, collected from downloading and streaming platforms and managed by performers’ collective management organisations.

     

     

  • Fairness Rocks news

    SOURCE: International Federation of Musicians

    Date: 9 Nov 2017

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  • The Directors Guild of America (DGA)

    The Directors Guild of America (DGA)  https://www.dga.org/

     

    As part of the work on behalf of its members to promote the economic and creative rights of directors and members of the directing team, the DGA maintains an engaged and effective presence in Washington, D.C.

    The Guild is works to help pass legislation that will serve to increase the production of film and television programming at both the federal and local level. They work to protect the jobs of DGA members as more foreign productions shoot in the United States. The Guild also monitors federal policies and regulations in the pensions sphere as the DGA’s Health and Pension Plans are a critical support framework for members.

     

    One of the Guild’s key legislative priorities is in relation to the conditions created by the digital environment.   The economic models currently operating in the digital marketplace threaten film financing and continued residuals at realistic levels. The internet has already demonstrated its capacity to damage the value of the creative contributions of directors and is arguably a wider threat to the health and diversity of global culture as a whole.

  • Fairness Rocks news

    SOURCE: The Directors Guild of America (DGA)

    Date: 9 Nov 2017

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  • The International Federation of Actors (FIA)

    The International Federation of Actors (FIA)  http://fia-actors.com/

    Representing its members in key international fora: as an NGO, FIA enjoys permanent consultative and participatory status with the World Intellectual Property organisation (WIPO); the International Labour Organisation (ILO); UNESCO, the OIF (Organisation Internationale de la Francophonie), the Council of Europe and the European Audiovisual Observatory.

     

    FIA advocates worldwide to bring the voice of the performer to policy debates not just upon intellectual property rights but upon working conditions such as employment standards, safety, diversity and equality as well as artistic freedom. It promotes networks between members and strives to secure policies that will ensure continued for cultural commitment to the profession, enhance sustainable funding mechanisms for growth and jobs in the audiovisual and live performance sector.

     

    In order to try and rebalance the interests of industry and the talent upon which industry depends the International Federation of Actors (FIA) together with three other organisations representing performers in Europe: AEPO-ARTIS (http://www.aepo-artis.org ), the International Federation of Musicians (FIM) and the International Artists’ Organisation (IAO) are carrying out a campaign to introduce into European legislation a right to remuneration for performers, collected from downloading and streaming platforms and managed by performers’ collective management organisations.

  • Fairness Rocks news

    SOURCE: FIA

    Date: 13 Sept 2017

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  • Writers And Directors Worldwide

    Writers And Directors Worldwide (WDW) http://www.writersanddirectorsworldwide.org/ 

    Writers And Directors Worldwide (WDW) is an official observer to the World Intellectual Property Organisation (WIPO) Standing Committee on Copyright and Related Rights thereby making the voice of the creator heard in this important global forum.

    Operated by an elected council drawn from the profession worldwide, currently WDW is focused upon six key policy areas:

    • Fair remuneration for the original commissioning of work, as well as from the benefits of subsequent exploitation that represents a fair in the success of the work.
    • Digital distribution including support for the new EU Parliamentary proposal for an unwaivable right to remuneration for directors and screenwriters where their works are made available online.
    • A coherent global standard that sets a fee for the private copying of works on blank and electronic media.
    • Effective management of the lending of ebooks in libraries worldwide
    • To establish a workable solution whereby links between writers and performers create better access to new works for licensing
    • Incentives to encourage young entrants to the profession to contribute to a diverse and active cultural future
  • Fairness Rocks news

    SOURCE: Writers And Directors Worldwide

    Date: 9 Nov 2017

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