Sunday, May 10, 2009

Twitter Me This

With even members of Congress “tweeting,” it was probably inevitable that the ubiquitous status-updating service Twitter would start being used for things that were just a glimmer in some developer’s eye even a few short few months ago. Besides hipping your “followers” to what you had for breakfast, users are also playing DJ – building playlists on other digital services and “sharing” tunes with the greater Twitterverse.

Wired’s Epicenter blog recently examined some of the most popular Twitter-meets-music applications like, and With most of these music apps, you simply search for a song, it kicks out a shortened URL link to that song that’s being hosted somewhere on the internet and — tweet! — when your followers click on the link, they can hear the song, too. But this article got us thinking: are musicians being compensated for these plays and, if so, how?

Our crack, two-person research department got to work. We dug through various services, using Simple Machines catalog and The Contrarian releases as test balloons. We checked in with a digital music service provider and a content licensor. As far as we can tell, this is what’s going on:

There is no license for this use. . . yet. That’s no surprise, given that the concept of tweeting music is less than 10 months old, and it sometimes takes years for the Copyright Office and other licensing agencies to recognize a use (and even longer for the copyright law to be codified around a new use). Yet this novel use raises some fundamental questions: are these tweets essentially a micro-broadcast that would qualify as a “public performance” and subsequently mean that licenses from ASCAP/BMI/SESAC would be required? If yes, then who is responsible for acquiring and paying for the license? Or does the interactive nature of the tweet mean it should be considered an interactive stream? If it is an interactive stream, that means direct negotiations with labels and publishers would be necessary to acquire permissions and set a rate. But with the music spread across the web — legally or otherwise — and the services themselves acting as “search,” which party would be responsible for getting a license?

Music is being hosted all over the internet. This would be a lot easier if the music was being pulled from a source that already had the licenses in place, something like a Rhapsody or Napster. However, our tests show (and sites’ FAQs indicate) that the songs that pop up in their search boxes – and are subsequently tweeted – are being hosted by random servers all over the internet.

In some cases, musicians may have pre-consented for a use like this. Many times a band or label will identify a couple of songs on each album that are pre-cleared for promotional use, such as made available for a free stream on MySpace, or embedded in a podcast, or posted to an MP3 blog. While it’s possible that the twitter-based search engines are finding this pre-cleared material, which sits on servers all over the place, it’s also highly likely that lots of the songs have not been pre-cleared. In some cases the music may be partially licensed, but even this brings up questions about how revenue is generated – is the site ad-supported, subscription-based, or part of an equity agreement between the rightsholders and the service? What happens when the song becomes a link in Twitter?

Because there is no license, there is no direct revenue for these performances. Without a license in place, all the music being tweeted and re-tweeted are essentially full-length plays for free. There is likely some revenue generated through “Buy MP3” referrals embedded in tweets, but the performances themselves are currently unlicensed.

We’re not trying to sound like grumpy old schoolmarms — actually, we get very exited when we see new applications that facilitate the discovery of new music. Still, it’s FMC’s duty to examine new music models to understand whether and how they compensate musicians. Given how quickly music fans have embraced Twitter as a way to hear, share and discover new sounds, those in the music and technology communities should ask a few questions, namely: are these uses sustainable? If so, should they be licensed? Could existing music destinations become the legit backend for socially driven discovery?

Perhaps it is too early to tell whether Twitter + music will flourish, or if it will only last as long as Twitter’s venture capital funding. We’re guessing Twitter is here to stay, which means that folks in both the music and tech worlds will eventually need to work together to ensure the platform’s growth, and to address whether and how musicians are compensated when their music is fleetingly tweeted.

Any Twitter DJ’s out there? What do you think?


Calysta Rose said...

First thoughts: This is basically free advertising for the artists and should be embraced as such.

The hashtag #musicmonday, for example, allows people on Twitter to recommend songs not just to their friends but to all of Twitterville. I feel, quite strongly, that in the cases where money is not being made (and I don't make a dime when I link to a streaming version of a song, for example) that this should be considered both fair use and beneficial to the artists.

If the site I'm linking to, the one that hosts the streaming file, is ad supported and/or has Buy Now links from which they receive a percentage of the sale, then a reasonable fee could be negotiated. But it needs to be small because what that site is doing is providing free advertising to the artist by making a non-downloadable version of a song available to potential customers.

As a music fan I must be able to hear an entire song before I will spend money on it. That is not unreasonable nor unfair to the artist. Analogies to other types of media (books, movies, tv shows) are inexact at best and often entirely irrelevant. If I can stream a song in its entirety and I enjoy it, I will purchase it. Will everyone? Of course not. But more people will buy a song if they get a chance to hear it than if they don't have that opportunity. And not just hear it, but hear it in a way, in a format, that doesn't cause them great inconvenience.

Back to the issue of 'performance fees', the site providing the streaming is having to pay for the hosting space and the bandwidth, all of which cost the artist not one penny and are not cheap. Therefore, revenue sharing or whatever you want to call it, must take into account the facts that these sites provide this service to artists free of charge, as well as provide advertising (again free of charge) and (since ad rates are not exactly sky high and affiliate links don't generate great sums either) don't make much in the way of profits. Any fee charged to such a site must reflect just how much indirect monetary value they provide to an artist and how little money the site itself makes. One size most definitely does not fit all and 'standardized' rates will only kill the very tools which can best help artists transition into the new digital reality.

Anonymous said...

.FM, not .com

i.e. = excellent = not worth blogging about

Kindest regards,

kabochagirl said...

Recently discovered through a music friend and LOVE it. So easy to send blips to twitter and FB simultaneously. It's a wonderful way to learn about new music.

A clear benefit to artists is the grassroots word-of-mouth exposure. I definitely buy music based on reccs of FB/Twitter friends and vice versa. Have already spent too much $$ hearing songs on then running over to iTunes to buy them. In my case at least, it's only going to get worse (better). I ((heart))!

Anonymous said...

any public performance of music that is held by bmi, ascap, sesac, or sound gotta pay royalties