Revolutionizing the Music Publishing Industry

Last Wednesday Dec 6, the following letter from the President of the Music Publisher's Association was posted on a music forum to which I belong. I answered with a legal comment, and then also a radical new idea for how the music publishing business could change to keep up with the new world and still be profitable. Here is the letter and my response:

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The Music Publishers' Association of the United States, Inc. (MPA) is the oldest music trade organization in the United States. The MPA is a non-profit association. Many MPA members are music publishers who specialize in producing printed sheet music products for educational, concert and recreational purposes. Accordingly, the MPA is particularly concerned with legal and business issues affecting the printed sheet music industry.

The members of our Board have received numerous e-mails in response to media reports that the MPA is embarking on a campaign to shut down web sites that make sheet music and/or guitar tablature of songs available to the public. We greatly appreciate hearing from those members of the music community who have taken the time to write to us or to our Board members. Although we regret that we may not be able to reply to each inquiry individually, all inquiries are read. Most of these e-mails express similar concerns and those issues have been discussed by the members of the MPA Board. We ask that you take the time to read our explanation of our position that follows, and thank you for your interest and consideration.

In December, the MPA Board decided to take action against web sites that post unauthorized sheet music and tablature versions of our members' copyrighted works. We are doing this to protect the interests of the creators and publishers of music so that, the profession of songwriting remains viable and that new and exciting music will be continued to be created and enjoyed for generations to come.

As with any event that has been reported in the press and discussed among the public, a certain amount of inaccurate information has been circulated. To be clear, neither the MPA nor its member publishers will take any action to shut down any legitimate web-based business that is authorized to distribute our members' music. Rather, MPA is concerned with those web sites that offer music without the permission of the creators and owners of that music.

Our members are in the business of creating printed sheet music and tablature products and making them available for sale in music stores and on line. Our members pay substantial sums to the creators and owners of the music we represent for the right and privilege to bring this music to the public in authorized sheet music products. Our members also put tremendous effort and incur significant expense in arranging, engraving, editing, marketing and distributing those products. Our members work closely with the creators and their musical representatives, to ensure that the finished products accurately represent the music as the creators wrote it.

Our members take great pride in the products they create and sell, and in their relationships with the creators and owners of the music they publish. Moreover, the creation and distribution of legitimate sheet music and tablature products is how our members and their employees feed their families, and it is also how music retailers and, of course, the creators of the music earn a living.

Many of those who have written to us have expressed frustration at the possibility of losing access to "free" guitar tab files that have been posted on various web sites. While it is true that tablature for some of the songs on these sites have not yet been produced legally by a music publisher, it is the presence of the unauthorized free product that is largely to blame for that situation. Accurate and complete notating of songs, whether in traditional sheet music format or in tablature, is a time-consuming and expensive activity. It is very difficult for a music publisher to make the investment needed to produce and sell an accurate, high-quality tablature version of a song when an unauthorized competing tablature version can be downloaded for free on numerous illegal web sites, even if the illegal tablature often is not accurate.

Moreover, it is simply wrong and unjust that many illegal web sites are able to make money, whether from selling advertising, other products or by other means, by giving away music that does not belong to them. Remember, unlike legitimate music publishers, these unauthorized web sites do not pay the creators of the music. It is like a store giving away stolen merchandise to attract customers to buy other things in that store.

Many of those who wrote to us seem to be under the impression that the guitar tabs (or lead sheets or other similar works) posted by individual players are the personal interpretations of the songs by the person who made them and therefore are not subject to copyright. Nothing can be further from the truth. The U.S. Copyright Law specifically provides that the right to make and distribute an arrangement, adaptation, abridgement, or transcription of a copyrighted work such as a song belongs to the copyright owner of that work. Virtually all of the songs on the tab and other music web sites are protected by copyright. Thus, any player, whether an amateur or a top professional, needs the permission of the copyright owner of a song to make an arrangement or a tab version of that song and to post it on the Internet. Otherwise, the arranger and the web site are infringing that copyright.

We have also heard that it would be too expensive to purchase legitimate tablature or sheet music for all of the songs that a player may want to learn. We are sure that these same individuals would not feel entitled to steal a sheet music book or a guitar from a music store simply because they want it but cannot afford it. Yet, anyone who patronizes these illegal web sites is stealing just as if he or she walked out of the music store with sheet music or a guitar. And by doing so, those people are taking money from the creators of the music they say they love.

The MPA is taking action to protect the rights of the creators and owners of music against people who would take the value of their music for their own commercial purposes without compensation. Our members are ready and willing to work with any web site owner who wants to build a legitimate on-line business to make music available to amateurs and professionals while providing compensation to the people who create and own that music. We look forward to developing new ways of distributing our products through the Internet for the benefit of everyone in the music community.

We hope that your reading of this message has left you with a better understanding of our position and that we have been able to clarify some of the myths and misinformation regarding the distribution of copyrighted music on the Internet and our members' position. We are always interested in hearing the views of the music community, and would welcome your comments at admin@mpa.org.

(Mr.) Lauren Keiser
President
Music Publishers Association
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My response on that same day of Wed Dec, 2006 follows. I also sent this note directly to the President of the MPA as a suggestion for a way to fix the current business problems of the music publishing industry. Here is what I said:
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I have at least two things to say about this.

I have a legal comment, and I have a radical new idea to help the MPA.

1) First, I believe that the MPA's claim would probably not survive a legal argument that quotes the "Fair Use" clause of the US Copywright laws which specifies that any works can be used free of charge if they are used for "educational purposes".
I think it would be possible for a copyright attorney to make the fundamental argument that sheet music, especially guitar tabulature is used to LEARN the music. It is therefore educational and therefore exempt from copyright fees. After all, no one goes into a bar to see a bar band show them TAB music on the overhead projector. They go to hear the music. Also, the written TAB music is not used on stage as part of the performance. And the music is being played by musicians who may or may not have learned it using TAB. They may have learned it by ear (as I used to learn it when I played in bar-band cover bands), or they may have picked it up using tab sheets, chord charts, or whatever. The point is, that the tab sheets are not integral to the actual performance of the music where there might be monetary compensation. Rather, they were only used in the educational context of learning the songs ahead of time, for which there was no monetary remuneration.
There MIGHT be a weak argument that states if the TAB is actually used DURING a performance, then that is PART of the performance and therefore not merely educational and therefore entitled to a fair portion of the proceeds. But since that rarely if ever happens, it is immaterial, and that argument is rendered academic and moot. In the case of orchestras, they do in fact use the written music in standard notation during the performances, but I am fairly certain that they are paying for their sheet music.

So - bottom line - tabs are educational and exempt from copyright claims and fees. I think a strong copyright attorney could make that argument.

2) As a songwriter and musician myself, I fully understand, appreciate, commisserate, and empathize with the MPA. The music industry itself is in turmoil in this modern world where recorded music and sheet music is free to anyone with a computer and an internet connection. It's one of the main reasons why being a musician is no longer economically viable as a full-time vocation for most people. (in other words - you can't expect to make a living as a music performer anymore). Therefore, most musicians actually make their living in other ways, and perform music either as a hobby, or as a part-time occupation.

But, it's time that the MPA and others in the music industry just accept that this is where we are now in the world. We can't put the genie back in the bottle.
Understandably, they would like to hold on to the old model where they could make money from selling printed music, or even selling written music online, but those days are, regrettably, now gone. If they think they can legislate us back to a behavior and a business model that existed 20 and 30 years ago, just because it treats songwriters and the music publishers more fairly, then they are mistaken.

The internet has been a huge agent of change in society. It is the great equalizer in some industries. For most things, money now flows to the lowest cost provider of goods and services because the buying public has the options of seeing all the competitors and their prices, then comparing features and service levels and making informed decisions. So those with inferior offerings are eliminated and do not survive. Wal-Mart has a physical model of the lowest cost provider and survives by offering their goods immediately. Their value proposition is that people can get what they need immediately, without waiting for shipping, and at the low cost. That is how they survive against the internet providers.

In the world of selling information - the internet is HUGELY valuable to the consumer because almost everything is available online, and mostly for free if you look around. Why would ANYONE now buy a set of Encyclopedia Brittanica books, when they can look up anything they want on the internet? (I actually own a set of Britannica, btw. Bought before the Internet really came into it's own.)
As a published author, I know that my own book would not sell very many copies if copies of it were available for free on the internet. If someone took the time to scan all the pages or re-type it into a document, and made that available to the world for free, I probably would not be selling the thousands of books per month I am no doubt selling right now.

Sellers of sheet music, tabs, maps, and fictional works, reference works, and other forms of information all have to learn to survive in a different world now. A world where everything they can offer is simply available for free 24 hrs per day, online, to everyone, everywhere on the planet. It's that simple.
The internet is there. It's not going away. Everyone can contribute to it and connect to it, and use it, and most do. So millions of people can usually get whatever information they want for free. Game over.

- or is it? -

One of my main jobs is as a high-level business analyst. I analyze large enterprise-level businesses, find the flaws in the offerings, and their processes, and their systems, and then design newer, better solutions. At the moment, I am working in the travel industry to design a better, more streamlined process for finding and booking hotel rooms. This includes merging and consolidating systems and processes from different independent business units. (don't ask details - it's secret)

So let me do a little of that kind of analysis here, right now, for the MPA.

The key is to come up with a NEW business model. A NEW paradigm for your information-based product. You have to change your value proposition to the potential customers. Just as the internet and online access to millions of tabs made the old printed sheet music obsolete, we need something new that makes the internet-based online tabs obsolete. We need the NEXT logical step. We need a vision for the future of this business.

And I have one. Here it is:

If you want to get them to pay you money, you have to provide something that has more value than what they can already get for free. Bottled water sells for more than soda drinks, even though tap water is free, because it is pre-filtered, clean water, and is marketed as a tastier alternative - and safer. It's also packaged in a handy, convenient way.

Here is a simple idea:
How about if we bundle all the TAB music electronically and load it into a small notebook-sized device that a musician can take with him everywhere. Memory is relatively cheap. It could store literally thousands and thousands of songs easily. The ultimate fake-book. This is an e-book that contains TAB music that can zoom in or zoom out to show as much of the music or as little as needed, and can auto-scroll as the musician plays. It's portable. He takes it to practice. It includes the lyrics, and could actually be set on the stage or on a monitor, and light up and scroll so he can see the lyrics as he plays or even performs. In fact, if the whole band can sight-read from the tab, or standard notation sheets, then, the band could take requests from the audience and have the music right there ready to go.

An enterprising guitar amplifier manufacturer like Line6 could even build it into their amp as a pop-up unit, so it's always handy, always there. A HUGE value-add to an amp. If it's a digital modelling amp, you might even consider having the modeling patches for original guitar tone used pop into memory for the amp to match the tab selected. So you bring up All Along The Watchtower, and also, your amp suddenly has Jimi Hendrix's settings and sound for that song available as a preset.

How about THAT? THAT provides value that he can't get by downloading tab sheets off the internet.

The MPA could set up and provide a central database and update download service, which is supplied by all the member music publishers. Since new music is always being created, the musician now also has an ongoing download service that allows him to hook up to the MPA-sanctioned central database and get his updates for a set monthly fee. That means he is a regular customer. In the online industry, a named, regular customer that can be recognized when he logs on to your service - is like GOLD. That ALSO means that the people who provide the music TAB updates, now have him as a potential audience for their advertising. A tightly targeted market.

Now, I believe THAT is a value proposition for the music publishing industry for the 21st century.

By contrast, trying to force people to do it the way it was done 40 years ago back in the 1960's, just because musicians and publishers made more money then, isn't going to work. This is a way to USE the new technology and the new methodology to make money in a new paradigm.

Give more value - get more money. That's the fair and logical way to attack the problem.