Yesterday I reported about Clear Channel’s latest crime involving independent musicians and the payola agreement. In a nutshell, the FCC decided that it was unlawful for Clear Channel to use a pay-per-play structure that ensured the Big Record Companies would get plenty of airtime while independent and local music would be economically excluded. After a bit of research, I can see why the people at Future Of Music and various independent musicians/independent record labels are furious with the outcome of this agreement.

Clear Channel Calls It An Experiment, The FCC Calls It A Penalty

For starters, Clear Channel is treating the 4200 hours of airtime to be dedicated to local and independent music as an experiment rather than a legal agreement with the FCC. In essence, Cheap Channel acts as if it has the ability to yank this program if the indies don’t agree to Cheap Channel’s terms, when in reality, the agreement is an atonement for previous crimes and must be served if Cheap Channel wants out of legal trouble. We could call this the Paris Hilton syndrome - the idea that she is merely visiting the LA County Jail, and if she isn’t treated well, she’ll leave and go back to her posh lifestyle.

Well, it didn’t work for her, let’s hope it doesn’t work for Cheap Channel either.

Artists Submit Files And Hand Over All Rights

Once we delve into this opportunity to have local and independent music broadcast on all of Cheap Channel’s major stations (including online streaming as well as terrestrial radio and every other cookie jar that CC has its dutty hands in), we encounter another unbelievable obstacle. To sign up, you go to the artist submission page on the website of any CC station. Take for example, DC 101 Washington DC’s Rock Station - http://www.dc101.com/cc-common/artist_submission/
No need to go there unless you’re ready to sell your soul to the devil. I have the same info here, where you can read it safely without flooding your computer with Cheap Channel cookies. The submission form asks for all the usual info about your band and music, including your website address, band images, album title, song title, mp3 upload, WAIT!! Don’t touch that submit button until your legal adviser reads the License Agreement thoroughly! Let’s dissect here, shall we? Everybody get your smock and scalpel, you may need safety goggles for this too…

Dissecting The Clear Channel License Agreement

The first item in the agreement:
1. License. You grant to Clear Channel the royalty-free non-exclusive right and license, in perpetuity (unless terminated earlier by You or Clear Channel as set forth below), to use, copy, modify, adapt, translate, publicly perform, digitally perform, publicly display and distribute any sound recordings, compositions, pictures, videos, song lyrics, still images, Your name, picture, portrait, photograph, band information data, graphics, trademarks, text, information, screen names, profiles, newsletters, gig listings, playlists, podcasts, blogs, broadcasts, messages, software, XML, RSS and links and/or other content (collectively, the “Content”) submitted by You to us on this website (the “Site”), including portions, composites, likenesses or distortions or alterations of same, in whole and in part, and to prepare derivative works of, or incorporate into other works, the Content, in connection with the preparation transmission, operation, production and advertising of and for (all media and methods checked by you above (check all that are applicable).

Well, at least they don’t hide it under a bunch of legal speak! You can’t miss that first sentence that lays the tone for the rest of the document - “royalty-free non-exclusive right and license…to use, copy, modify, adapt, translate, publicly perform, digitally perform, publicly display and distribute…” - that pretty much covers everything a company could do with a piece of media - “any sound recordings, compositions, pictures, videos, song lyrics, still images, Your name, picture, portrait, photograph, band information data, graphics, trademarks, text, information, screen names, profiles, newsletters, gig listings, playlists, podcasts, blogs, broadcasts, messages, software, XML, RSS and links and/or other content (collectively, the “Content”) submitted by You to us on this website.”

Wait what? I have to grant them royalty-free non-exclusive right and license to my website content and its associated feeds? I don’t think so, buddy. Where do they get off taking this much from independent artists?

So what do they do with the mp3s that I can submit via this form? It is clearly described in the very next paragraph of the License Agreement:
The foregoing services as indicated by You are hereafter known as the “Clear Channel Services.”). You acknowledge that, although Clear Channel intends for “online streaming” media (box 1, above) not to allow downloading by the consumer, Clear Channel is not responsible and disclaims all liability for unlawful circumvention by the consumer where streamed files are downloaded. Further, you acknowledge that all downloads (box 2, above) will be in an unprotected format and Clear Channel is not responsible and disclaims all liability for further copying of this file (e.g. file sharing, posting on peer 2 peer networks, etc.).

I have to submit an unprotected format to them and they are admitting that they will be sharing it on the world wide web without any security measures….

What Happens When The “Experiment” Fails

Well, ok I don’t have to do any of this. I don’t have to submit my music or images or website to Cheap Channel. If I choose to agree to these terms, then I have an opportunity to be broadcast on Cheap Channel stations and my music could be used in commercials and jingles and all kinds of stuff that might make me famous. But who wants to get involved in an agreement like this? This is about as fair as a pimp’s agreement with his workin ladies. The pimp gets all the money, the ladies get stiffed. So, if the independent labels are outraged at this agreement, and individual musicians don’t feel secure getting into an arrangement like this, where will Cheap Channel get its local and independent music to broadcast? Will Clear Channel turn around ad tell the FCC that no indies signed up and therefore must not be interested in being aired on CC stations? Will they be able to go back to business as usual if they can’t get a hold of indie music to play? Is this any different than business as usual?
According to the Future of Music Coalition:

The application requires the artist to approve a licensing agreement that (oops) does away with his or her digital performance right. In other words, Clear Channel is asking the artists to sign away their right to get paid a royalty just to allow Clear Channel to consider playing their music.

The move also flies in the face of the “Rules of Engagement” the broadcasters agreed to as part of the payola settlement, which include the following provision: “Radio shall not ask for or expect, either directly or indirectly, any quid pro quo to play music.”

How is Clear Channel showing contrition for allegedly engaging in an illegal practice?

It isn’t.

About the Future of Music Coalition:

Future of Music Coalition is a national non-profit education, research and advocacy organization that identifies, examines, interprets and translates the challenging issues at the intersection of music, law, technology and policy. FMC achieves this through continuous interaction with its primary constituency - musicians - and in collaboration with other creator/citizen groups.

This post is basically my interpretation of a post on the Future of Music Coalition blog. FMC has dedicated this week to exposing Clear Channel’s devious business practices and have a big surprise planned for CC at the end of the week. I am contacting the executive director of FMC, Jenny Toomey, the communications director of the Future of Music, Justin Jouvenal, as well as various independent labels who have spoken up about this issue. When I hear back from them, I will report what I find out. My next post will involve some of the other ways in which Clear Channel have avoided the rules and laws that govern all other broadcast companies as well as some background info of the people who I am speaking with. Jenny Toomey and Three One G are both fascinating entities who have been absolutely pioneering in some highly-influential music scenes in the US.

For those who are interested in the vast scale of the License Agreement, you can read it in full at the end of this post. I added it here so that you don’t have to click over to Clear Channel in order to read it.

LINKS

Future of Music Coalition blog post about Clear Channel payola agreement turned into new scams
Future of Music.org article, “Clear Channel strips local, independent artists of digital performance royalties–Move runs counter to spirit of the payola settlement”
Previous Post about Clear Channel, FCC, payola, and indies on HearingTest

Clear Channel License Agreement

LICENSE AGREEMENT

This is a License Agreement (”Agreement”) between Clear Channel Broadcasting, Inc., on behalf of itself, its subsidiaries, parents, successors in interest and affiliates (”Clear Channel”, “we” or “us”) and you, on behalf of yourself, your band members and all others who have an ownership interest in the “Content” (as defined below) (collectively, “You” or “you”). All capitalized terms shall have the meaning set forth in this Agreement.

1. License. You grant to Clear Channel the royalty-free non-exclusive right and license, in perpetuity (unless terminated earlier by You or Clear Channel as set forth below), to use, copy, modify, adapt, translate, publicly perform, digitally perform, publicly display and distribute any sound recordings, compositions, pictures, videos, song lyrics, still images, Your name, picture, portrait, photograph, band information data, graphics, trademarks, text, information, screen names, profiles, newsletters, gig listings, playlists, podcasts, blogs, broadcasts, messages, software, XML, RSS and links and/or other content (collectively, the “Content”) submitted by You to us on this website (the “Site”), including portions, composites, likenesses or distortions or alterations of same, in whole and in part, and to prepare derivative works of, or incorporate into other works, the Content, in connection with the preparation transmission, operation, production and advertising of and for (all media and methods checked by you above (check all that are applicable).

The foregoing services as indicated by You are hereafter known as the “Clear Channel Services.”). You acknowledge that, although Clear Channel intends for “online streaming” media (box 1, above) not to allow downloading by the consumer, Clear Channel is not responsible and disclaims all liability for unlawful circumvention by the consumer where streamed files are downloaded. Further, you acknowledge that all downloads (box 2, above) will be in an unprotected format and Clear Channel is not responsible and disclaims all liability for further copying of this file (e.g. file sharing, posting on peer 2 peer networks, etc.).

The foregoing rights shall be without limitation as to time, place or manner on or in connection with the Clear Channel Services, including in advertising and promotion related to the Clear Channel Services and any other lawful purpose

Clear Channel may or may not charge for such services, but shall not be liable to You for any portion of such fees. This License shall include the right to record, dub and synchronize the Content with other materials, and to exhibit, distribute and/or broadcast the content in the soundtrack of and in timed relation with advertisements and promotions in any and all media. The foregoing license shall be sublicensable by Clear Channel without further permission from You. You agree to execute and deliver documents to us that we may request to confirm our rights under this Agreement.

2. No Obligation to Use. Clear Channel shall have no express or implied obligation to use or permit the Content to appear or remain on the Site or on any Clear Channel Service or to promote, perform, display or distribute the Content at all, or in any particular manner or in any minimum quantities. Clear Channel retains the right to provide (or not to provide) the Clear Channel Services and advertising or promotional support to the Clear Channel Services and the Content as it may choose, it being understood that all decisions in this regard shall be made by the Clear Channel in its sole discretion. Clear Channel shall further have the right to remove the Content from the Site and from all other Clear Channel Services without any liability or obligation to you.

3. Ownership. As between You and Clear Channel, Clear Channel acknowledges and agrees that You have all rights of ownership, including without limitation, all rights of copyright and copyright renewal in and to the Content. Clear Channel acknowledges that nothing in this license shall give Clear Channel any right, title or interest in the Content other than to use the Content as specified in this Agreement.

4. Editing rights. Clear Channel shall have the right, but not the duty, to use, adapt, edit, add to, subtract from, arrange, rearrange, revise, and change the Content or any part thereof for purposes of conforming to time segment requirements, applicable laws and regulations, establish telecast policy and standards and practices, and to insert commercials and/or other announcements. You hereby waive on behalf of Yourself and Your band members, Your employees and all persons who provide services and materials in connection with the Content, any “moral rights” of authors or “droit morale” and any similar rights or principles of law throughout the world, including, without limitation, any right (i) to approve any revisions, deletions, abridgment, or other changes in the materials furnished hereunder or (ii) to withdraw the materials from distribution.

5. Representations and Warranties. You represent and warrant that:

(a) You are at least 18 years old. If any member of Your band is a minor, You hereby warrant that you have the legal right to execute this Agreement on behalf of the minor artist and have obtained all necessary consents and guarantee such person”s performance of the terms of this Agreement;

(b) You have full right and power to enter into and perform this Agreement, and have secured all third party consents necessary to enter into this Agreement and to submit the Content as provided herein, including from Your band members and all other who may claim ownership of the Content;

(c) The Content is Your or Your band”s own original work (this means You or Your band recorded it and wrote it in its entirety and it contains no sampled or replayed material or material otherwise created by someone who is neither You nor Your band);

(d) The Content does not and will not infringe any third party”s copyright, trademark or other intellectual property or other proprietary right, or right of publicity or privacy;

(e) The Content does not and will not violate any local, state, federal or international law;

(f) The Content is not and will not be defamatory, libelous, abusive, pornographic or obscene, or infringe upon the rights of any third party, including but not limited to rights of privacy and publicity;

(g) The Content will not contain or transmit files, data or other materials containing a computer virus, corrupted data, worms, “Trojan horses” or other instructions or designs that would erase data or programming or cause the Site or any equipment or system to become inoperable or incapable of being used in the full manner for which it was designed;

(h) You have not falsified Your identity or provided forged e-mail addresses or mail addresses, or otherwise attempted to mislead others as to Your identity in this submission and will not do so in the future in connection with this submission;

(i) You are a resident of the United States; and

(j) All factual assertions that You have made and will make to us are true and complete.

6. Indemnity. You shall be fully responsible for any violation of this Agreement including the representations and warranties made herein, and You agree to indemnify and hold Clear Channel, its officers, directors, employees, agents, listeners and users of the Site from any and all losses, costs, liability, damages and expenses, including reasonable attorneys” fees, arising out of or related to Your breach of the representations and warranties made in this Agreement or any claims arising from the Content you submit, post, transmit or make available through the Site, or Your use of the Site. You are solely responsible for all licensing, reporting and payment obligations of all kinds in connection with the Content, its distribution and use (including but not limited to union or guild payments and any other third party payments of any kind). You agree to execute and deliver documents to us that we may request to confirm our rights under this Agreement.

You acknowledge that our Site and other Clear Channel Services may from time to time encounter problems and may not necessarily continue uninterrupted without technical or other errors, and we shall not be responsible to You or others for any such interruptions, errors or problems or an outright discontinuation of our service.

7. DISCLAIMERS. IN ADDITION TO ANY DISCLAIMERS PROVIDED ELSEWHERE IN THIS AGREEMENT, CLEAR CHANNEL MAKES NO WARRANTIES RELATED TO THIS AGREEMENT OR THE SITE OR ANY OF THE CLEAR CHANNEL SERVICES AND EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM COURSE OF DEALING, USAGE OR TRADE. CLEAR CHANNEL SHALL NOT BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, OR LOSS OF USE DAMAGES), AND WHETHER OR NOT FORESEEABLE AND REGARDLESS OF THE FORM OF ACTION, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF CLEAR CHANNEL HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER FAILS ITS ESSENTIAL PURPOSE.

8. Termination and Repeat Infringer Policy. At any time after the date you first upload Content onto the Site, You may choose to terminate this Agreement for that Content by sending an e-mailed request to IPPermission@clearchannel.com identifying the Content and the specific date of submission. Clear Channel will make commercially reasonable efforts to delete the identified Content within sixty (60) days from the Clear Channel Services. Clear Channel will not be responsible for, and need not take any steps to withdraw or terminate the future distribution of, any copies of any of Your Content that may have been distributed (including by download) by Clear Channel or from the Site before we removed Your Content.

You agree that Clear Channel may, in its sole discretion and without prior notice, immediately terminate Your account, any associated email address, and Your access to the Site and remove Your Content from the Clear Channel Services. Cause for such termination shall include, but not be limited to: (a) breaches or violations of this Agreement or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by You (self-initiated account deletions), (d) discontinuance or material modification to the Site (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, or (g) if You have engaged in fraudulent or illegal activities in connection with the Site or the Content.

Clear Channel respects the copyrights and other intellectual property rights of others. We expect You to respect those rights as well. Among other things, You agree that You will not include in the Content recordings made by others, recordings the copyright in which is owned by anyone else, recordings of songs written by anyone other than You, recordings of songs the copyright in which is owned by anyone else, recordings that include samples of other recordings. Clear Channel will terminate Your account and Your ability to use the Site if You are determined to be an infringer of the copyrights of others. Clear Channel may, in its sole discretion, terminate Your account and Your ability to use the Site if You are the subject of one or more notices or subpoenas claiming that You have posted infringing content and such notices or subpoenas have not been timely contested, or if it otherwise determines that You are engaging in infringement. In addition, Clear Channel expressly reserves the right to terminate Your account and Your ability to use the Site if Clear Channel, in its sole judgment, believes that circumstances relating to the infringement of third party intellectual property rights warrant such action.

9. Modifications to Agreement. We reserve the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this Agreement. We will post or display notices of material changes on the Site or we may e-mail You about these changes. Once Clear Channel posts them on the Site, these changes become effective immediately and if You use the Site after they become effective, it will signify Your agreement to be bound by the changes with respect to existing as well as new Content. You should check back frequently and review the terms and conditions of this Agreement regularly so You are aware of the most current rights and obligations that apply to You and the terms and conditions of Your Agreement with us.

10. Ownership of Intellectual Property on the Site. Except as explicitly provided herein, the contents of this Site and all other Clear Channel Services, including all software, design, text, images, photographs, illustrations, audio and video material, artwork, graphic material, databases, proprietary information and all copyrightable or otherwise legally protectable elements of the Site and other Clear Channel Services, including, without limitation, the selection, sequence and “look and feel” and arrangement of items, and all trademarks, service marks and trade names (individually and/or collectively, “Material”), are the property of Clear Channel, and any of its parent companies, subsidiaries, successors and assigns, and any of their respective licensors, advertisers, suppliers, and operational service providers and are legally protected, without limitation, under U.S. Federal and State, as well as applicable foreign laws, regulations and treaties. Unless the context clearly requires otherwise or we explicitly say so in writing, the term “Site” and “Clear Channel Services” includes all related “Material” as well.

The Site is to be used solely for Your noncommercial, non-exclusive, non-assignable, non-transferable and limited personal use and for no other purposes. You must not alter, delete or conceal any copyright or other notices contained on the Site, including notices on any Material You download, transmit, display, print or reproduce from the Site. You shall not, nor will You allow any third party (whether or not for Your benefit) to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate to any third party (including, without limitation, on or via a third party website), or otherwise use, any Material without the express prior written consent of Clear Channel or its owner if Clear Channel is not the owner. Any unauthorized or prohibited use of any Material may subject You to civil liability, criminal prosecution, or both, under applicable federal, state and local laws. We require users to respect our copyrights, trademarks, and other intellectual property rights. We likewise respect the intellectual property of others. On receipt of paper notice under the Digital Millennium Copyright Act, we will act expeditiously to remove content on the Site that infringes the copyright rights of others and will disable the access to the Site and its services of anyone who uses them to repeatedly to infringe the intellectual property rights of others. You do not have and we expressly shall not provide You the right to use any of our trademarks, copyrights or other proprietary information or property in connection with any activity, or to create any implied endorsement by us of You, unless authorized by Clear Channel in its sole discretion in writing in advance.

11. Notice for Claims. Clear Channel has no obligation to monitor the Site. However, if You or any user believes that the Site contains elements that infringe copyrights in Your work, please follow our Notice and Procedure for Making Claims of Copyright Infringement.

Notice and Procedure for Making Claims of Copyright Infringement. Pursuant to Title 17, United States Code, Section 512(c)(2), all notifications of claimed copyright infringement on this Site should be sent ONLY to our Designated Agent.

NOTE: THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR NOTIFYING THE SERVICE PROVIDERS REFERENCED BELOW THAT YOUR COPYRIGHTED MATERIAL MAY HAVE BEEN INFRINGED.

Written notification must be submitted to the following Designated Agent:
Service Provider(s): Clear Channel Broadcasting, Inc.

Name of Agent Designated to Receive Notification of Claimed Infringement: DMCA Designated Agent
c/o Legal Department Clear Channel Communications, Inc. 200 East Basse Road San Antonio, TX 78209 By Facsimile: (210) 832-3428 By Email: dmca@clearchannel.com
_____________________

Under Title 17, United States Code, Section 512(c)(3)(A), the Notification of Claimed Infringement must include the following:

(a) An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;

(b) Identification of the copyrighted work (or works) that You claim has been infringed;

(c) A description of the material that You claim is infringing, and the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the page of the website where it is lawfully posted; the name, edition and pages of a book from which an excerpt was copied, etc.);

(d) A clear description of where the infringing material is located on the Site, including as applicable its URL, so that we can locate the material;

(e) Your name, address, telephone number, and e-mail address;

(f) A statement that You have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

(g) A statement by You, made under penalty of perjury, that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner’s behalf.

12. General Provisions.

(a) Binding agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

(b) Choice of law and forum. This Agreement and the relationship between you and Clear Channel shall be governed by (and construed and interpreted in accordance with) the laws of New York, without regard to its conflict of law provisions or your actual state or country of residence. You hereby irrevocably submit to the personal jurisdiction and venue of the federal and state courts serving the City and County of New York, other than for actions to enforce any order or judgment entered by such courts, in the event of any dispute arising out of or relating to this Agreement.

(c) Severability and Waiver. If any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, the remaining provisions shall remain in full force and effect, and the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision. The failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing.

(d) Survival. Unless otherwise explicitly stated, the terms of this Agreement will survive the expiration or deletion of your account or the Content for any reason.

(e) No Partnership. The parties bear the relationship to each other of independent contractors, and nothing in this Agreement shall be deemed to create a partnership, joint venture, or agency relationship between them, nor shall either party have the power or authority by virtue of this Agreement to bind the other.

(f) Entire Agreement. This Agreement, accepted upon clicking “I Agree,” contains the entire agreement between you and Clear Channel regarding the use of the Content, and it supersedes all prior and contemporaneous agreements, promises, representations, warranties, and understandings of the parties regarding the same subject matter.

(g) Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms that you bring must be brought within one (1) year after such claim or cause of action arose or be forever barred.

(h) Third Party Rights. This Agreement does not create, and shall not be construed as creating, any rights or interests enforceable by any person not a party to this Agreement. This Agreement is not intended to be for the benefit of any third party and shall not confer upon any third party any right, privilege, remedy, claim or other right.

(i) Privacy. In the event of an inconsistency between these Terms and the Privacy Policy of the Site, these Terms shall control. (The Privacy Policy is available at http://www.clearchannelmusic.com/cc-common/tou.html#privacy).

(j) Agreement Admissible. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

You represent that you have carefully read this agreement, that you understand its contents, and that You have had an opportunity to seek independent legal advice regarding the advisability of entering into this Agreement.

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