North Star Writers Group - Syndicated Commentary: Opinion, Humor and Features

March 5, 2009

Eminem Suit Gives Musicians a Shot at a Little Justice

It’s not the sort of issue that keeps many people up at night, but – shock! horror! – major record labels tend to exploit their artists.

It’s hardly the most pressing issue in a country wherein virtually the entire population is busy fretting over whether or not they’ll have jobs, homes or health care next week. Nonetheless, current events concerning the rights of musical artists to be paid for their work deserve a mention. Last week, headlines in the music business trade press (and, to a lesser extent, the mainstream media) announced that a lawsuit by Eminem against his record label, Universal, was preparing to go to trial.

This wasn’t quite true. It wasn’t Eminem himself doing the suing, but rather his former producers, FBT Productions, and of course the media seldom will let facts get in the way of a good headline. Nonetheless, the salient issues at hand deserved notice – namely, whether or not major record labels had the right to unilaterally redefine contractual terms to their advantage when new technologies stood to profit them.

The question involves the distinction between a traditional royalty payment given to an artist – typically, a paltry percentage of monies accruing from sales of CDs, records or other physical media – and the more generous 50/50 split usually paid when music is licensed to a third party instead (as in, for instance, the licensing of a hit song for inclusion on one of those annoying That’s What I Call Music compilations, or a Time-Life box set seen on TV). In the latter case, the label does no actual work – no packaging, no advertising, no publicity or any of the other costly activities normally associated with a record release – and simply sends out a copy of the master recording for the licensee to use.

Enter the era of iTunes and widespread digital music distribution. All of a sudden, millions of songs from throughout the history of popular music are now only a point, a click, and a 99-cent charge away, as Apple and other similar firms have inked deals with the major labels to procure copies of these same master recordings. A lucrative new licensing deal, right? Consumers gain access to an abundance of music, and artists and labels gain access to a wonderful new revenue stream, and everyone goes away fat and happy, yes?

Well, not so fast. In a display of that peculiar logic that only a cigar-munching label executive and his high-priced attorney could manifest, this isn’t a licensing deal at all, but a sale, even though no goods change hands and the consumer only winds up with a “license” to play the song they “bought.” So, no 50 percent for you, Mr. Artist. You get your lousy eight to 12 percent royalty instead. Best go along to get along, lest we kick you off the gravy train instead of letting you ride in the cattle car.

It’s a familiar American story: Great technological advances lead to great opportunities for the monied and powerful to exploit the weaker parties who make the advances possible. Ask Eli Whitney, who died bankrupt after inventing the cotton gin, or Elisha Gray, who got screwed out of the rights to the telephone he invented by Alexander Graham Bell and his friends at the patent office. Or, for that matter, Badfinger’s Peter Ham whose contractual nightmare ended with his lonely suicide in his garage.

The marketers, manufacturers and parasites reap the spoils. The creators pay in blood, toil, tears and sweat.

Well, maybe not this time. FBT Productions are getting its day in court in Los Angeles, and should they prevail, virtually every recording artist who ever signed a contract prior to 2004 should be enabled to get in line for their share of the billions of fresh, crisp new dollars with which the likes of Sony, BMG and Universal have been buying their Porsches and cocaine for the last few years.

In a world rife with brutality and injustice, it’s a minor issue to be sure, but in an industry rife with exploitation at all levels, it would be a small but significant victory for the good guys – and good guys had best take their victories where they find them.

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