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 blip.fm, twisten.com and song.ly. 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 blip.fm 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?