ListenSmart Publishing Q & A, part I
Recovered from the Internet Archive. This page comes from a ListenSmart.com capture saved by the Wayback Machine on April 30, 2001. The original text is preserved where it survives; links and layout have been adapted for this restoration. Historical account, search, posting, voting, playback and download features are inactive; their labels remain as plain text. Images that were never archived are marked as such. Audio files were not recovered for this archive.
Source: Wayback Machine capture of ubb.listensmart.com:80/ubb/Forum12/HTML/001424.html.
Removal requests: email seanfenlon@yahoo.com with the page address.
Note, 2026: The publishing contracts in this thread, posted in May 2000, were a beta draft. None was ever signed, so ListenSmart.com never collected or paid any music publishing royalties. Revenue was minimal. More on the business plan page.
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 ListenSmart Publishing Q & A, part I
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| Author | Topic: ListenSmart Publishing Q & A, part I |
| #1
Sean Fenlon Administrator Posts: 173 |
posted 05-25-2000 04:14 PM
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Thanks to all that have contributed questions, concerns, and feedback on the ListenSmart.com Beta Music Publishing contracts. Most of the dialog has been quite constructive. However, there has been some dialog that is less than constructive based upon incorrect assumptions of music publishing issues, faulty notions regarding conventional language found in music publishing contracts, mistaken assumptions of copyright law, and misunderstandings of ListenSmart.com’s integration of music publishing into its overall business model. Thus, we continue to believe that education is the key component to artist understanding and to maximize this relationship between ListenSmart.com and the artists. To that end, we have received a number of private emails from artists that have announced their intention to have the contracts reviewed by professional entertainment attorneys. We are very encouraged to hear the pro-active approach many artists are taking towards this unique relationship offered by ListenSmart.com, and we are anxious to answer any questions and address any concerns that may arise from the review of various music lawyers. We also look forward to working with Bill House, Musicians United, and the attorney that will represent their constituency. As these questions, concerns, and issues arise, we plan to post them and their resolutions publicly on the bulletin for everyone’s benefit. Below is round one of our effort. We have assembled and answered the majority of questions posed in the bulletin board threads regarding the music publishing relationship. Please continue to post your questions, concerns, and feedback so that we may continue the process. Best regards, Sean ------------------ IP: Logged |
| #2
Sean Fenlon Administrator Posts: 173 |
posted 05-25-2000 04:14 PM
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quote: Yes. ListenSmart.com must obtain “Writer’s prior approval” for the use of their music. However, this paragraph describes the exception. Writer acknowledges the importance of prompt response to requests for routine background film and television synchronization licenses and the fact that it may be impractical for Publisher to secure Writer's prior consent with respect to such requests. Accordingly Writer hereby grants to Publisher its prior approval with respect to any and all such requests for routine background film and television synchronization uses that are directed to Publisher, as well as for routine statutory rate mechanical licensing. Most music publishing professionals would agree that routine background film and television music requests are typically extremely time sensitive transactions. Thus, film and TV music synchronization professionals (i.e. music supervisors) tend to only use music that the know to be “pre-cleared” or “pre-approved” so that they do not commit time and energy to determining the perfect song for their project only to discover that it is not available to them.
quote: On-demand CDs produced by any OMD does not require mechanical licensing from ListenSmart.com.
quote: Since we share the same motivation in terms of generating royalties and building a following as the artists, ListenSmart.com will grant any license with respect to the artist’s music that is requested by the artist. Thus, given Davey Boy Crocky’s scenario, he would request that ListenSmart.com issue a (free) mechanical license to produce CDs of his own tunes and ListenSmart.com would gladly comply. quote: AMP3 used a system that guaranteed payments per download primarily because their revenue model was transactional and they generated revenue for each and every download (that's how they charged their advertisers). Since the ListenSmart.com revenue model is not directly tied to downloads, it would be irresponsible for us to commit to a guaranteed amount per download. It is very important that we be responsible in this structure to avoid a negative cashflow situation. If we did guarantee a single download royalty, hypothetically, listeners could go directly to an artist page and download each and every song from the page every day and then leave. They only were exposed to one banner ad, which could translate into approximately 1/2 penny in revenue, yet ListenSmart would've committed somewhere between $.05 and $1 in royalty payouts. This could be a recipe for disaster, which would do no one any good. On the contrary, by tying the amount directly to a percentage of the entire ad revenue pie, we can more credibly and responsibly project safe and accurate margins. There are a few other things to consider before comparing it to the IUMA payouts. Firstly, IUMA only pays 25% instead of 50%. Secondly, IUMA pays on banner impression on artist pages only, whereas LS will pay for ad revenue generated by the *entire* site, including special promotions, sponsorships, and 5 seconds rich media ads we will insert in the beginning of playlists. Finally, we will guarantee a minimum aggregate distribution amount per quarter, whereas IUMA makes no such guarantees. Bottom line is that it's not the download count that is as important as the check you get at the end of the quarter. Having said that, I believe you are much more likely to get much bigger checks using our model than the AMP3 or IUMA model, regardless of download count.
quote: A song that already has all or part of its copyright and/or title assigned to another (third-party) music publisher.
quote: No, absolutely not. Our whole motivation for encouraging you to make your music available on multiple sites is to allow you to reach a wider audience to help build your fan base, not cash in on *your* P4P. By building a fan base and developing relationships with your fans, it will be easier for us to help you “cash-in” on those relationships through several different methods.
quote: Actually, Dusty answered this question about as eloquently as I could’ve hoped for. His response echoes the name answer we received from numerous publishing professionals we discussed the issue of term length of the term with...
quote: Thank you Dusty!
quote: All songs are eligible for a music publishing contract and “revenue sharing” status. This question is often asked by individuals that are familiar with the conventional “screening” practices of traditional music publishers and do not fully understand the revolutionary nature of the ListenSmart.com business model. The system of traditional music publishers used criteria based on subjectivity. One person or one entity would “screen” material based on how much appeal they think a song will have. Are they right? Who knows, maybe some were better guessers than others. The ListenSmart.com system diverts that subjectivity away from one person or entity, and actually lets a music listening community determine the level of appeal. Moreover, artists will always be appropriately compensated based on that level of appeal. Also, the greater the level of appeal, the greater chance that song will have for additional uses since it will have “proven” itself in a test market and has a demonstrable, verifiable track record.
quote: The promotional efforts of the ListenSmart.com machine tend not to focus on one individual song or artist. Rather, the promotion is directed toward the entire catalog of “revenue sharing” songs as a whole. This, of course, is always coupled with providing objective ways to find the music in the catalog based on a variety of sophisticated criteria including genre, popularity, tempo, mood, subject matter, instruments used, etc (all of which are chosen by the artist during the song signup procedures). The traditional music publishers never had the technologies for catalog management and song tracking that ListenSmart.com will. Thus, for example, an A&R rep who used to be limited by the record-keeping/subjective-taste/memory of the catalog manager at a traditional music publisher, will now be able to visit SmartAandR.com and say: "We're looking for a post-grunge band in Seattle that has sold at least 1,000 CDs, has had at least 50,000 downloads, has at least 5,000 email addresses on its mailing list and has a manager and the capacity for a national tour," and find them, listen to them, and sign them! Moreover a film-producer who was previously shackled by the limitations of same catalog manager will now be able to visit SyncSmart.com and say: "I'm looking for a popular country-rock song by a female artist that uses the guitar and the violin, is up-tempo (but in a relaxed mood), uses the word ‘beer’ in the lyrics, and deals with the subject of ghosts,” and find it, listen to it, license it and download it! This, of course, is a more efficient means of getting the right music in the hands of the right music professional, thus is a much more effective system for maximizing the royalty-earning potential of all songs within a catalog than individual promotion.
quote: Anyone & everyone is welcome to post their material to ListenSmart.com. However, only the songs where ListenSmart.com becomes the music publisher (with a standard single-song contract) are eligible for “revenue sharing.” We use the term “songs” rather than “artists” because it's really not an all-or-nothing offer. An artist can decide their level of participation on a song-by-song basis.
quote: As an added bonus service to "Revenue Sharing" artists, ListenSmart.com offers to post the artists songs and information on every other MP3 or independent music site available, thus leveraging the resources of other sites to promote our participating artists. This service is, of course, completely optional. Also, please note that updating/administrating the sites will be the responsibility of the artist.
quote: All rights granted to ListenSmart.com by the artist are terminated with the termination of the agreement, including the rights to use names, likenesses, bio, etc.
quote: Since ListenSmart.com will be the entity that can issue the license for the use of an artist’s music, it is not likely that the party wishing to license the music will wish to deal directly with the artist. Thus, if they requested a new recording of a song, it would be up to ListenSmart.com to negotiate the terms and arrangement of the new recording. The resolution could be one of any number of solutions including: 1. The licensing parties offers to re-record the song at their own expense, up and beyond the licensing fee
quote: Typically, yes. One of the value-added services of a music publisher is staying current with market rates, standards, and conventions. Remember, it is also in ListenSmart.com’s best interest to negotiate the highest possible licensing fee for the use of your music.
quote: For the purposes of music publishing, derivatives of a song are treated and handled the same as the original song. [This message has been edited by Sean Fenlon (edited 05-25-2000).] IP: Logged |
| #3
BaptistDeathRay Guru Posts: 326 |
posted 05-25-2000 04:23 PM
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Hi Sean, thanks for answering my question... however... the "one exception" is a pretty big exception, I have to say. Routine Film and TV... what other categories are there? When is something NOT routine? Coudl it be I just don't understand the terminology? (Quite possibly). What guidelines would LS use to make sure that songs were used appropriately. I don't know that there really can be any... but, for example, under this scenario it appears that Bruce Springsteen's song "Born in the USA" would have been available to the GOP for a campaign re-election commercial without Mr. Springsteen's say in the matter. Unless that wouldn't qualify as "routine." (I keep using that example because he was publically pissed off when Reagan tried to incporate that song in his re-election bid, and they backed off quick).
[This message has been edited by BaptistDeathRay (edited 05-25-2000).] IP: Logged |
| #4
BaptistDeathRay Guru Posts: 326 |
posted 05-26-2000 12:04 AM
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Important thread, consider it boinked. ------------------ IP: Logged |
| #5
Davey Boy Crocky Guru Posts: 203 |
posted 05-26-2000 12:20 AM
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Sean, thanks for taking the time to answer these questions so clearly. This goes for Ben and Syed as well. I believe that all problems are solvable as long as the lines of communication stay open. Your efforts are appreciated. ------------------ Davey Boy Crocky's Solo Project IP: Logged |
| #6
dustyw1 Guru Posts: 411 |
posted 05-26-2000 03:00 AM
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quote: Whoa! I got one right? So what did I win? Now please don't tell Phil - it'd shatter his whole image of me Seriously (or sort of) this is great (and not just cause I was quoted)! Clear answers and reasons behind every decision. This is definitely not some corporate group ignoring the poor schlubs at the bottom or paying lip service to "dialogue". Thanks Ben, Sean and Syed. Dusty ------------------ IP: Logged |
| #7
LadyDaisy Guru Posts: 139 |
posted 05-28-2000 05:31 PM
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I thought this perhaps should return since not many people saw it.  LadyD IP: Logged |
| #8
CBH3 Records Guru Posts: 337 |
posted 05-28-2000 05:39 PM
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Good boink, Daisy. Sean, I have a question: Will you negotiate the LS contracts with an attorney or are they set in stone, merely to be explained, not changed? Thanks, ------------------ IP: Logged |
| #9
dustyw1 Guru Posts: 411 |
posted 05-28-2000 07:29 PM
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CBH3 quote: Only problem I see here, CBH, is that you seem to be assuming that the majority of artists here will want changes or the same changes. T'aint necessarily so. Dusty ------------------ IP: Logged |
| #10
CBH3 Records Guru Posts: 337 |
posted 05-28-2000 07:37 PM
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I'm not assuming anything, Dusty, I'm asking a simple question. CBH3 ------------------ IP: Logged |
| #11
PFmgmt Guru Posts: 940 |
posted 05-28-2000 08:57 PM
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Sean has said that he would be quite open to having an attorney negotiate the Contract A & B . Anyone that signs this without the advice of an attorney would be making a serious mistake. There a couple of Clauses in it that no one has mentioned that no publishing co.on the planet would have inserted. This contract as it stands, sucks. If certain clauses are not taken out and others are not compromised on, I sure as Hell would not sign it. In fact, I may stick to my email that I sent to Sean resigning from this site. I have been asked by several people to reconsider leaving. I may stay but it depends upon the outcome of this contract. Another thing. Even if the contract is satisfactory in the final outcome, I would not sign until LS reveals the names and Bios of the staff of the Publishing side of this situation. ------------------ IP: Logged |
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