Parental Advisory News Report 11.22.09: Fair And Balanced

Posted by Dan Haggerty on 11.22.2009

This week we have Mariah Carey going off on the music labels, Lilly Allen flip flopping on downloading, Bob Marley poised to surpass Elvis and Michael Jackson, the official launch of new music video site Vevo, and the man who is suing Bon Jovi provides us with sound samples so you can decide if he has a case. All that plus you get to vote in Round 2 of the NSFW motivational posters!

Bon Jovi Lawsuit Part Two

Round Two

OK. After last week's column on the $400 billion lawsuit instigated by Bart Steel against Bon Jovi, the Red Sox, and Turner Broadcast Systems, I considered the issue closed. My search of the net and various news sources showed the same general facts, and with the overall case being tossed out of court seemed to back those facts up.

However…

The man in the middle of the lawsuit, Bart Steel, actually contacted me to provide me with his side of the story. He was cool about my column, even though my conclusion wasn't favorable of his lawsuit, and he presented his side of the story.

So, since he was cool about this I decided to reciprocate the favor and present his side of the story here. He's given me his actual news announcement, the case against Bon Jovi, and most importantly sound samples so people can make up their own mind.

And that is exactly what I'm going to do. I'm going to keep my mouth shut (hands of the keyboard?) this week and let you be the judge. I have an opinion and this is an opinion piece News Report (shocking, I know). But in this case I think it's better to just let the information stand on its own. If the man is going to go out of his way to give a professional response then he'll get the same courtesy from me. I'll report and you decide.

And for once it'll work that way.

So here was the information Bart sent to me. For obvious legal reasons it is his official statement on the subject. Also, if I'm going to be fair I can't paraphrase it or clip it. If you don't want to read all of it you can skip to the fun part with the music video links after the block quote:

BOSTON SONGWRITER FILES APPEAL IN LAWSUIT AGAINST RED SOX, MLB, TBS, BON JOVI, et al.

Dispute Centers on TBS/Major League Baseball Commercial

Bart Steele, a songwriter living in Chelsea, MA, has filed an appeal in his lawsuit against Turner Broadcasting, Major League Baseball, The Boston Red Sox, the rock band Bon Jovi, and other defendants. The case is Steele v. Turner Broadcasting et al, case #08-11727, and is pending in federal court in Boston. Steele argues that his song and an MLB/TBS commercial, which he believes was created using his work as a "temp track," are similar enough to support his claim that the commercial infringes upon his copyright.

"Basically, the District Court believed the defendants' argument that this was all a bunch of coincidences," Steele says. "But it wasn't. It was copyright infringement, pure and simple. In 2004, I wrote my Boston Red Sox-based country baseball anthem entitled ‘Man I Really Love This Team.'

"I emailed my song and also mailed the song with lyric sheets to the Red Sox and Major League Baseball several times, including in October 2004, June 2005, and June 2006. I also told them I had another version called 'Man I Really Love This Town' that could be used for any team in any town. To this day, neither the Red Sox nor Major League Baseball has denied receiving my letters, song, and lyric sheets. I never heard back from them.

"Three years later, MLB's "I Love This Town" commercial aired on TBS, with Bon Jovi providing the audio. And I started getting phone calls asking me when I had sold my song. The answer was – and is - never.

"I was never asked for permission to use my work, much less paid or even given credit for it. Defendants admit, in Court documents, receiving my song in October 2004. Defendants have not denied receiving my letters informing them I had created a derivative work, which replaced "team" with "town."

"Defendants admit "access," which is a big part of any copyright claim. It is hard to believe TBS and MLB when they say their commercial's similarities to my song were all a series of unbelievable ‘coincidences.'

Steele elaborates, "A close analysis of the MLB/TBS commercial proves that it, and the Bon Jovi audio, was derived from my work," says Steele. "They left a pretty blatant trail of evidence behind,"

"There are just too many places where the visuals match up exactly with my lyrics to be coincidence. For example, at the exact time I am singing "Yawkey Way," the video shows a Yawkey Way street sign, and Bon Jovi is singing "this street." Another obvious example, at the exact time I sing "Tigers," the video shows a Detroit Tigers player."

"As for the lyrics, at the end of my song's bridge I sing "come on and let ‘em know say here we go;" the Bon Jovi audio's bridge ends "come on now here we go again." Compare my song to the MLB commercial and see if you can find all the other 'coincidences.'

"In fact, over 50% of the commercial's lyrics are identical to, or paraphrased from my song, according to a number of professional musicians and video experts.

"96% of the commercial's frame-cut edits (149 of 155 video sequences) are in perfect synchronization with my song's tempo, beat, and measure. And the commercial and my song are exactly the same length, both fading out at 2:38.

Steele says the Court failed to properly consider his experts' statements, and that is a major reason why he is appealing.

"I registered 3 titles as both writer & publisher with the American Society of Composers, Authors, and Publishers (ASCAP): 1) 'Man I Really Love This Team' 2) 'Man I Really Love This Town' and 3) 'Man I Love This Team,' and this can easily be confirmed at www.ascap.com by title search.

"Everyone tells me that this kind of thing happens all the time in the music business even though it's illegal. The big corporations think musicians will just give up if they have to face a big law firm hired to wear them out. But I'm not giving up.

"When ASCAP saw my evidence, their exact words to me were: "We find it very hard to believe this was independent creation on their (Bon Jovi's) part with the whole baseball and video thing."

"ASCAP subsequently opened a "Discrepancy" case file and requested statements from me and from Bon Jovi. In fact, an ASCAP title search for "I Love This Town" returns only an ASCAP request to call the "Clearance Line" with respect to the "Discrepancy" on that title code (392590937). I replied immediately to ASCAP's request.

"Bon Jovi never replied to ASCAP's request.

"ASCAP eventually froze all royalties on Bon Jovi's audio, "I Love This Town," from the MLB/TBS commercial.

"Amazingly, Bon Jovi never questioned or challenged ASCAP's royalty freeze. Actually, since MLBAM (MLB's non-baseball media/marketing arm) – and not Bon Jovi – owns the copyright to the TBS/MLB commercial, including the audio, maybe it's not that amazing."

Steele concludes, "Bon Jovi is a major client of MLBAM and has been for years. In fact, Bon Jovi, TBS, and MLB teamed up yet again just this fall to promote baseball on TBS. Please check for yourself, this is all public record."

For those who would like to judge the merits of Mr. Steel's claim follow these links. The first was his song and the second is Bon Jovi's contracted version. In the first link, you'll have to scroll down to the video. The second one will take you to a news site with a direct link to the official Bon Jovi video. Sorry, I couldn't get it a link here to go directly to it.

To view and listen to the MLB commercial with Steele's song, go to HERE.

To view and listen to the MLB commercial with the Bon Jovi audio you can go HERE

Hit the comments section and tell us what you think.

Bob Marley Has Something New To Be Cool About

Legend Indeed

One of the grimmer but interesting aspects of the music business is now musicians continue to rack up money even after they have died. The estate gets the money of course but it is collected based on the sales and assets of the musician whose name and music continue to generate the income. For years the joke was how Elves had more money dead then he did alive. That's because he blew it while alive and when he passed away his wife took over and put the estates finances in order. For decades Elvis was the richest dead celebrity because of that. Well, that and the fact he was the king!

Recently Kurt Cobain took over for Elvis in the top spot, partly thanks to time and also some big deals that landed his estate some cash. I think many of us expected that to not last, especially considering who is running his estate, but what no one expected was WHO would be the one to top him. If you asked people I'd bet they would think Michael Jackson would be the new contender. But it's not. It's…

Drum roll please.

Bob Marley.

Toronto-based private-equity firm Hilco Consumer Capital has a deal with the Marley estate to merchandise him, which is expected to generate worldwide annual sales greater than $1 billion by 2012.

Yes. Marley is expected to generate over a billion in three years. Evidently, his name already captures 600 million in pirated merchandise world wide!

"Marley is a strong global brand," says Mickey Goodman New York University's Stern School of Business. "He enjoys a high level of awareness, and people feel positive about his music."

Major licensing agreements for the Marley brand are about to be launched in two key areas: consumer electronics and health care. Yes health care. No, not medical marijuana - Like Marley would limit people to just prescriptions. Evidently it will be skin-care products and herbal supplements. Also in the works are deals for a Marley-branded calming beverage, a video game similar to Guitar Hero featuring Marley's songs, and a chain of restaurants celebrating the music superstar.

In other words, it's merchandising-palooza.

I'm not sure exactly if Marley would even approve of this considering the man's life and philosophy but it is obvious that his estate does. The estate is also keeping veto power over all business ventures and has also insisted that charities will figure into the overall mix of Marley branding.

Licensing of dead celebrities is an industry that has exploded in the last decade thanks to the proliferation of websites. Typically an estate receives 10% to 15% of gross proceeds from a licensing deal which in this case will be divided between Hilco and the Marley family. So how does this come out in terms of money? At an estimated (conservative) 10% licensing fees from $1 billion in annual sales that's a cool $100 million. That tops the latest figures reported for Presley ($55 million), John Lennon ($15 million), and Jimi Hendrix ($8 million).

Michael Jackson does appear to be Marley's nearest rival for the richest-dead-celebrity crown with a net worth of $90 million. Much of Jackson's worth is due to a sharp spike in the sales of his albums and merchandise in the weeks following his death as well as the success of "This Is It". It still is carrying massive debt that will need to be paid at some point so the future.

This surprised me… and then I could have kicked myself for not considering this. I mean Marley is a huge international phenomenon. It makes perfect sense that at some point his family would get organized and capitalize on his popularity. The real question is can Jackson maintain his sudden return to popularity and can his family control his estate properly to eliminate all the debt. If both happen it'll be race.

Vevo To Launch

Vevo the online music video site backed by Sony and Universal (with Google's YouTube support) will launch December 8, 2009.

Rio Careff, the CEO of Vevo, had this to say about trying to simultaneously take on MySpace and MTV: "We're not trying to compete with them." He says he wants to make partners with as many sites as he can and is just offering a high-end alternative to what exists. If effect, Vevo is suppose to be the Hulu for music videos.

Also keep in mind that YouTube has just made recent deals with the major labels to get their music back on their site. The fact they are offering support for this shows how intertwined the businesses are. I'm not saying that it's necessarily a bad thing, only pointing it out. That fact the industry is continuing to merge with successful online companies could be a positive step actually.

Anyway, here is the scuttle of Vevo for those curious:

•It will be powered by Google's YouTube (GOOG), which will share ad revenues with the JV.
•It is being run by Rio Caraeff, Universal's veteran digital guy.
•In addition to its equity partnership its distribution strategy is modeled after Hulu as well. Sony and Universal videos will appear exclusively on the site and/or YouTube, but the site plans on licensing its stream to other outlets, as portals like MySpace and Comcast's (CMCSA) Fancast.
•Neither EMI or Warner Music Group (WMG), which has created its own Vevo-like channel with YouTube, are participating in the venture. Although there does seem to be a agreement for them to join.

So there you go. The only constant is change and we'll see how the site meets the hype in a couple of weeks.

Mariah Sounds Off On the Industry

Singer Mariah Carey had a few choice words for the music industry in a recent interview and they were certainly refreshing. The fact she was obviously against illegal downloading in the quote has hidden the real point of what she said, and it is something that needs to be said loud and often. Here is what she said:

"Frickin' idiots! A lot of big, powerful music industry executives made a giant mistake and now we're all paying the price. They gave the music business away on the Internet. If they had just sat back and said, 'Maybe let's figure this Internet thing out, it could be something cool,' we could have found a way to distribute music online on our own terms, not somebody else's… Prince had already shown them the way. He was so far ahead of the curve, putting his records out on the web. Everyone else was stupid."

Carey's comments get to the real heart of the issue here:

1. The music industry failed to see the industry changing and missed out on taking advantage of new technologies. This is why many big businesses end up failing by the way. What's up Microsoft?

2. If the labels would have seen the trends, they could have been on the forefront of the business. The artists suffer because of bad business decision from the companies that hold their contracts.

3. Those that did are doing OK.

Now yes, she also bitched about losing out on royalty money, so take this in that context. But she is right, and I agree the artists shouldn't loose because everyone missed out on the next big thing. But that is the key here, they're missing out because a better business model came along and beat them, only in this case it's downloading so it's the fans that are directly taking it to them.

Someone Download This Chick Some Common Sense

Lily Allen, when recently took a shit storm from fans regarding her public endorsement of Britain's proposed law to kick downloader's off the internet has apparently done a 180 degree turn on the subject. Before she seemed to blast downloading and people who did it along with supporting the Governments "crackdown" the new Law represented. This last week, however, she had an interview where she supported her fans downloading her music and circulating copies of it.

The rub? She said she was fine with it if they didn't give it away for free.

This is what she told a radio station during an interview: "If someone comes up with a burnt copy of my CD and offers it to you for $8 I haven't a problem with that as long as the person buying it places some kind of value on my music."

So…

Lily Allen is against illegal downloading of music because it hurts the musicians. BUT she is for illegal downloading if someone else makes money off of the musicians music?

What?

The deal is Allen took a ton of grief over her position from her own fans, including having to shut her Facebook page down due to the messages she was getting. The fact is Allen is trying to fix her PR blunder with her fans by saying they can do it *as long as they respect my music and place a value on it*

I wonder what Mariah Carey would have to say about that?

Anyway this is just smoke and mirrors. Either Allen is an idiot who doesn't understand she is supporting an action and against the same action at the same time, silly disclaimer notwithstanding, or she thinks her fans are idiots who are going to buy what she says.

Wait a minute, does she expect them to buy it or is it OK to just copy/paste what she says as long as they charge someone else for it?

Slow news week but that is to be expected as we slide into the holiday. What we got was fun as always. Now for the moment you really clicked the link – Motivational posters! Vote on your favorite and the winner will go on to the finals against "Skittles" at the end of the year. Till then keep your eyes on the streets and your ears on the music.