Outfoxed

It occurred to me this afternoon that in the past year I’ve done nine electronic arrangements of venerable Beatles tunes. Possibly a few other people might like to hear them. Some sort of digital download is obviously the distribution method of choice; nobody is likely to send me money for a physical CD.

I’d like this to be legal. Not that Paul McCartney needs the money, but maintaining legal distribution is an important ethical principle for musicians. So I wandered over to the website of the Harry Fox Agency to find out what it would cost. What I learned was a bit odd, and left some unanswered questions. There are, shall we say, difficulties.

The statutory rate for Permanent Digital Downloads (that is, files, not streaming music) is 9.1 cents per download for songs that are up to five minutes in length. Harry Fox Agency (HFA for short) licenses a minimum of 25 downloads per song. Since I don’t have what you might call actual fans, 25 may even be a good estimate. At that rate, I would be paying a royalty of $2.28 per song.

Here’s what’s weird: HFA themselves collect a fee of $16 per song (for each of the first five songs, and $14 for each song above five). At that rate, HFA would be raking in almost seven times as much money as Paul McCartney (and of course Paul’s management would pocket part of that). In concrete terms, by setting up an HFA account and becoming a legal purveyor of music, I would not be supporting the songwriters. I would be supporting the corporate machinery.

The HFA boilerplate, which for a change I actually read rather than just clicking Agree, was clearly drafted by high-priced lawyers. My money would be going, among other places, into the pockets of those lawyers. Color me less than thrilled about this.

Of course, if I were estimating that I’d sell 2,000 downloads per song, the HFA fee would fade into insignificance. But that’s just another way of saying that this is one of those places where the little guy gets screwed and the high-stakes players have an advantage.

Five of my nine arrangements are medleys containing two tunes each. Do I just pay once for the medley, or do I pay twice? If I were combining a Beatles song with a Stones song, it would make sense to pay twice … but if both songs are owned by the same copyright holder and the total length of the track is under five minutes, should I be charged twice?

The more serious issue is, how exactly does HFA propose to determine the number of downloads I’ve gotten? I have no commercial website set up to track downloads. That would be extra overhead for me, and the information would be of no value to me (unless I’m audited by HFA). What if I’m giving the files away — which is what I intend to do — and not keeping track of the number of downloads? Am I in violation of the law if I do that? To be specific, does the law require me to set up the machinery to track the downloads even if I’m not requiring my two dozen alleged fans to pay for the music?

I inquired, and received an answer from them on these points: I can give the music away, as long as I’ve paid for a mechanical license, and no metering is required. They simply require you to estimate, at the time when you request the license, the number of downloads you’ll be getting. This is good news.

The license is only good for 12 months, however. After that, I’m supposed to re-apply. And that would be another $16 per song going to Harry Fox.

The HFA FAQ explains that their mechanical licenses only cover the United States. Distribution in other nations requires separate licensing in those nations. The Internet being a more or less global thing, it’s a bit hard to see how any artist could comply with this when providing downloadable recordings of arrangements of songs by other composers. If a French fan downloads my files, I would become a criminal in France, even if I have complied with all of the U.S. licensing requirements.

I may be able to get answers to some of these questions by phoning HFA. (Well, no — you can’t even talk to anybody by phoning them. But they do answer inquiries made on their web form.) In any event, my money is still going to be feeding the corporate monster, not ending up in the pockets of the musicians. Do I want to pay Harry Fox and their lawyers a couple of hundred bucks? I can afford it, so it may be the safe thing to do.

Perusing the HFA FAQ, I learn that for a medley or an “arrangement of an existing song that alters the melody or character” (which all of my arrangements do — why else would I bother?), I have to get permission from the publisher as well as a license from HFA. It seems fairly clear that all jazz instrumental recordings of pop tunes would fall afoul of this requirement — so do all jazz recording artists have to jump through this hoop? I don’t know. But this requirement, frankly, pushes me over the line. I have no aspirations as a professional creative artist; I just want a few people to be able to hear my creative work. Clearly, the music publishing industry is NOT set up to support people like me. The music industry is set up in such a manner as to oppress people like me with burdensome paperwork and inappropriate fees.

On top of which, if I were to approach the publisher with my request, they might turn me down! Harry Fox can’t turn you down — they administer what are called compulsory licenses, a legal term meaning that legally you can’t be prevented from releasing a new recording of a previously recorded song, you just have to pay a standard rate. But we can imagine the consternation in the front office of the publisher of the Beatles catalog if I explained that I was planning to make my work freely downloadable.

Well, “consternation” is too strong a word. They wouldn’t bat an eyelash. They’d just say no. Of course, I could phone them and ask — they might say yes. But phoning them might put me and my electronic arrangements on their radar. As a practical matter, if I just upload the mp3s, they’ll never know.

So that’s what it comes to, sports fans. While crying foul about lost revenue due to digital downloads, the corporate-dominated music industry is quietly leaving independent artists no realistic alternative but to break the law.