Gail Zappa, daughter of a rocket scientist, mother of Moon, Dweezil, Ahmet and Diva Zappa, was married to the legendary composer Frank Zappa for more than 25 years. Since Frank Zappa’s death in 1993, she has overseen the release of his recordings, including many previously unavailable works, under the Zappa Family Trust.

I had the great pleasure of speaking with Gail recently about a number of topics, including copyright, offering Frank’s music direct to fans on, and her opinion of third party online retail.

Mike: Can you talk a little bit about the process for choosing the material you and Joe Travers release from the vault?

Gail: Well, I think Joe has a very different process than mine. He’s a fan, which he has been since he was very young, long before we ever met him. First of all, he realizes that he gets to listen to stuff that no one else will ever hear in some cases. So that’s a very attractive part of the job for him and sad at the same time. He’s also interested in finding the source material that Frank used, in finding all of the bits and pieces. Or if he hears about a legendary project, he’ll work on reconstituting it because some of the ingredients of the sauce are missing. So there is a search and seizure part of it that he is always actively engaged in so when he goes into the vault, he usually has a motive; I don’t. That’s the difference; he’s looking for something in particular, usually. The collaboration happens when…. Oh what just happened recently? We sat down (in his office) and I said, “Joe, I need a really good concert and it has to be English. It has to be from Britain” and he said, “OK!” So he knows right where to go because he’s been through there so many times, that he knows. He says, “I think I know some choices” and he makes a selection based on that and then we find out, we’re not covered for a whole concert but we’re covered for several dates at the same time, so that we can pick and choose in terms of the performances. Sometimes you get a concert and that’s it; it’s a one shot deal and you have to go warts & all with what you’ve got and you don’t have the coverage. So, in that case, we’ve gone to fans and gotten bootleg recordings to fill in the blanks when the tape ran out and the reel didn’t get changed fast enough. So you can start with that or you can go to “well, we did several shows in this location over a period of time;” say three Halloween dates in New York. Then you can make one show from all three sources; that’s a different kind of an event. For me, the rule of thumb is, we are not making a Frank Zappa recording in terms of how its produced, but we are making a record from recordings made by Frank; that’s the big difference. There are two of us and that means there’s four feet and there is no way that they are going to fit in those two shoes.

Mike: Are you or Joe releasing material from the vault based on fan demand?

Gail: No. We’ve been releasing things based on what we think is a good thing to release. Joe makes classic arguments over and over again for releasing certain types of things that he’s knows the fans are interested in and those arguments that he makes influence some of the releases, in terms of what the contents might be; I certainly consider his opinion absolutely but my first obligation to Frank is to educate. First, you have to have a context in which you can release these things. For me, I can’t just put out a record and not have some background to it. Recently, we put out The Torture Never Stops as a DVD and this was made as a television show, because Frank had an idea that this would work on TV but this was very early on and nobody (in broadcasting) wanted to see these crazy edits that he was doing so there was a lot of resistance. So the concert, in different forms, ended up on USA Network and on MTV but Frank’s version which he created as a television special, was one particular thing that he put together himself. So my obligation, I feel, to the audience is to put out first what Frank created and then I can go back and take all of that footage, which we intended to do and are in the process of working on, and remix it in surround and put out the whole of the concert series in a big package down the road. But first, you have to see what Frank’s intention was and then you can go back to other opportunities where you can have your way with the material.

Mike: You released the MOFO Project/Object in 2006, and put in the names of anyone who pre-ordered the record into the liner notes of the release. I talk a lot about the importance of artists’ personalizing packages for their fans for direct sales off of their web site, as it helps to build the artist/fan connection. Was that part of the idea with MOFO? How did you come up with it in the first place?

Gail: We had actually done that as an experiment, when we put out our first concert release. I wasn’t sure how the audience would respond and it was FZ:OZ and we put everybody’s name on that, who ordered it in advance, because I wasn’t sure if we were going to be able to make it happen. So the pre-orders gave us an opportunity to see that we could actually manufacture the way we wanted to. I have always felt very strongly about the packaging; I always have. That started with Frank, so even in the face of economic disaster in the industry and digital downloads, I still believe in the physical package. So we had already done that, but the main inspiration for adding people’s names into MOFO, the special edition, was because Frank had listed the names of people who helped to influence that music, in Freak Out. So I felt that for the people, for whom the music exists, and they are going to support it early in, you can have your name and your credit on this too because you deserve it! It wasn’t anything to do, really, with being interactive on the site.

Mike: I know that you area selling a few digital releases of Frank’s music off of your own site, and that there is very little available on iTunes. Is that because you feel strongly about the packaging? Can you talk a little bit about why a lot of Frank’s music isn’t on third-party digital sites?

Gail: Ok, this is a very big answer to what seems to be a pretty straightforward question. First of all, what the studio audience doesn’t know and what’s behind the curtain, is that there is a lawsuit where certain parties are claiming many rights, digital rights being among them. I can tell you, absolutely, that it was never Frank Zappa’s intention that anyone would control the digital rights of his music other than his heirs, so its not anything he ever told me to sell. The fact of the matter is he published a paper on how music would be delivered in the future in 1983 and copyrighted it and just bemoaned the fact that he didn’t have the budget to hire programmers to make that happen. So he was way out there and he certainly knew. Although the term “digital rights”, at the time of his death and the time of the sale, didn’t exist, that doesn’t mean that he wasn’t thinking about them and planning ahead for what would best serve the value of the copyrights that remained with me. So he was thinking about his family at the time and he wanted to protect those rights. That’s part A. Part B is that I am not a fan of iTunes. I am not a fan of their growth through their overbearing means by which they have a reduced value of music. First, they taught everyone how to steal it and then they said,” Oops, sorry here’s how you can pay for it really cheap!” So you know, I’m not a fan of that and I’m not a fan of price-fixing, which is something they do. You don’t have a lot of choice in what you can offer and how you can offer it. I mean they just have rules and I understand that it is probably just a by-product of some of their programming issues but there should be other choices. I believe that the future is that there will be other choices and they will be on every artists own fan site or a conglomerate consortium of artists’ fan sites that’s not controlled by an outside party that does not respect artist’s rights. The part C of this answer, is that up until fairly recently and even still today, the sounds are massively compressed, they are not the way the artist intended them to be presented to an audience for an audiophile experience. So there was a reason for me to engage in that. Now I don’t care so much about Beat the Boots on iTunes because that’s not a recording made by Frank Zappa. Those are bootlegs as opposed to counterfeits.

Mike: I know that the releases you are selling off of are at a higher bit rate. Can you envision down the line that you would be releasing some of Frank’s catalog at lossless quality off of

Gail: Yes

Mike: How are you working to expose new listeners to Frank’s music? If a lot of Frank’s catalog is unavailable digitally, and physical retail is cutting back with their inventory, what other ways are you working to expose potential fans to Frank’s music?

Gail: In an ideal situation, I would be able to have more participation in the original catalog than I do right now, and that may yet happen in the next few months. If it does, then you will see a very big change. For me, any kind of release that we get out there helps to sell everything. I mean, people think I’ve planned, perhaps with Dweezil, how to do this and Dweezil has certainly contributed to introducing music to a younger audience, for the most part, so that already exists. I get letters from people that are fourteen or under all the time that are interested in the music. The problem is, is that you are fighting a huge battle. It’s great that Dweezil is out there performing the music because the saddest part is that he comes closest to having produced the band that I think Frank would’ve actually hired himself, including Dweezil on “stunt guitar”. That would have been ideal, but there’s nothing else out there that touches that band, in terms of Dweezil’s intention with respect to what he is trying to accomplish with musicians of that caliber.

Mike: I saw them two years back in Boston with Steve Vai and they were just great…

Gail: Yeah, but that was back when everyone believed that you had to have former members of the band. With all due respect, you know, we love Steve Vai – but here’s a disappointment that I have to say fairly regularly, and that is that Frank’s agenda was to educate because when you educate the audience, you give them the opportunity to experience a wide variety of musical entertainment. Now I can’t do that as well as Frank because I’m not in a band. I mean, on stage, he would introduce Stravinsky, Varèse, and Bartok, you know, all sorts of composers and lots of R&B music that he loved when he was a kid and he went out of his way to make sure people heard those sounds and heard that music. It wasn’t so important from them to know who the composer was until he did interviews; you don’t have to announce it on stage because then people don’t really pay attention. The fact is that their ears are being trained; I can’t do the ear training that Frank did but I can constantly reinforce the idea that there is a basis; there is a history behind all of this stuff. It’s based in intention; the composer’s intent is everything. So you can’t just have somebody interpret Frank’s music because in many cases it’s no different than identity theft or character assassination. When people just take it into their own hands and arrange it without getting permission and do terrible things to it that were never intended – because for them it’s easier to play that way. So I feel that I have a really strong contract with Frank Zappa to get that music out there the way that he intended it and that’s the other part of how the releases work.
But, getting back to the disappointing aspect. For me it is that there are all these people that worked under Frank’s baton and not one of them does covers. You know, you would think that somebody would think it’d be a great idea to do a cover version. I’d love to license Frank’s music but it’s just so inappropriate to license classics in so many ways because they were never written or intended for, especially not those performances, they were never intended for commercial exploitation. If people did covers though, I could certainly consider licensing those if they were something that I thought was sincere and represented the intent of the composer.

Mike: Could you give me an example of something that you would be interested in licensing?

Gail: Well, for example, I get a billion requests for “Willy the Pimp,” but there is no way that I am going to let that go out there unless I had some other version because I don’t think that it is right to exploit Frank’s particular statement and that actual recording. I mean a lot of these records were made back in the day, where these studios themselves were instruments in the hands of the composer and that’s no longer true. Everybody works out of a box now that you plug in. Back in the day, the studio was one of the actual instruments and controlling what you could do in a studio gave you as many opportunities in terms of the sounds that you could get as any other instrument. So a studio in the hands of a skilled composer is a whole other animal.

Mike: I read an interview you did where you had this great quote, “my job is to make sure that Frank Zappa has the last word in terms of anybody’s idea of who he is and his actual last word is his music.” What does that mean in terms of your opinion of copyright as it relates to Frank Zappa?

Gail: Well, I think that every person who creates anything in the realm of intellectual property is protected under the Constitution of the United States of America, because that’s what copyright law is. I didn’t invent it. I’m not the bad (or good) guy that said this is how it’s supposed to go. There’s a reason for copyrights to exist because they actually are proof and a working version of the ideas of those people, at this time and this place and I like that idea. The more freedom there is to express these ideas, the better off we all are and that’s the reason why I also love and enjoy the Bill of Rights. However, when you consider the means by which other people are trying to take copyright law and try to take it apart at the seams, they’re doing it by misinformation. It’s disinformation basically. If you want to start a war and pretend that somebody took the first shot, you use disinformation as we’ve seen in the past, to make that happen. This is war against artist rights and I think that it is not a very good idea, in this day and age, to introduce any kind of arts programming, in terms of educational programs, without introducing also the means by which you protect your rights. It’s no different than a signature at the end of the day. It’s like this, if somebody is a Muslim or a Christian, do they have the right to make you be one by voting, by majority vote? No, that’s clearly not the American way and it’s the same with copyrights. If you want to give your music away for free, that doesn’t mean you get to join a group that’s going to take apart everyone else’s rights just because that’s what you believe. You have a choice. Go ahead. Give it away. If you think that that’s the best way to market your music, by never being able to earn a living from doing that, great. Join that fabulous club and enjoy.

Mike: Any other thoughts on the state of the music industry, and ideas on how to move ahead as an artist?

Gail: Mostly, the business of music these days is a popularity contest and it’s the ability of some performer, primarily, to capture the attention of an audience and expand on that. I think as a musician/composer, you can’t look at that as competition. I mean this industry was bound to implode on itself because it’s like any other. Once the distributors are more famous than any artists they distribute, you’ve got a problem because there’s a lot of money going in to support that structure that shouldn’t be in their pockets. You know, its like if an agency is more famous that the actors it represents, in the public’s mind, you can see how that’s a problem. Well that’s what happened to the record companies too, in many ways. The real issue for artists to consider is there are so many times where decisions are being made about your rights and people who are not even including you in the conversation are taking them away from you. A perfect example of that are record ratings. The RIAA bent over and gave away rights that belong to the artists because they wanted their special pay tax bill. We’re about to put out a release so you’ll see that, Frank’s testimony on the issue, but it’s a perfect example of the fact that artist’s aren’t at the table; they aren’t represented. So I would say to any artist that wants to make a living on what he does, the first thing is: don’t stop doing what you are doing. The second rule is keep on doing it. The third rule is get a very long-range plan and stick to it. You’ve got to use the force of your imagination harnessing the force of your will and once you put the two of those things together and you have a clear picture of what it is that your trying to do as an artist, it doesn’t matter how you change your path in terms of how you accomplish your goals but you just have to keep on doing it and don’t let anybody get in your way by telling you that your work is not valuable. Invest in yourself even if no one else does, because that is the only way that you are going to survive. You’ll find ways; first of all, there is no competition for what you do. Absolutely none, anywhere. It is hard to get peoples’ attention but it happens if you work at it! If you do nothing, it won’t happen. That’s for damn sure!

Check out a thought-provoking TED presentation from Johanna Blakley on how low IP industries like fashion outperform high IP industries (music/books) in both innovation and sales (thanks @guilhermeviotti).

I’m not sure if it is because I had a bumper sticker on my car in the 90s that read “I am funkier than you,” but 5 of my friends have sent me the video below. I would imagine it is unlikely that the fellow who created this mashup received permission from the copyright holders, but the “Mother of all Funk Chords” is a fantastic example of creating something entirely new and extraordinary from divergent original sources. From a marketing standpoint, this piece is great for the remixer, Kutiman, and because Kutiman lists the source material on his site, the original creators of the music could benefit as well.

Lessig on Colbert

Jan 10 2009

Tough to get much out of this entertaining interview. Learn more about Lessig’s thoughts on copyright and the free licenses and other legal tools that his Creative Commons entity provides to mark creative work with the freedom the creator wants it to carry, here.

This past Wednesday the House Judiciary Committee’s Subcommittee on Courts, the Internet, and Intellectual Property met to discuss the proposed Performance Rights Act. Like many things related to the record business, it’s a contentious issue. Depending on where you stand, the Performance Rights Act is either: A) long overdue, the artists have been getting screwed for years, or B) another instance of the RIAA (the trade organization that represents the major labels) scrambling to pull in income from anywhere they can, and in this case they are biting the hand that has fed them for years.

There’s a ton of information (and mis-information) out there, and it’s confusing. Here’s a condensed version of what’s going on, as I see it.

Broadcasters in the U.S. have traditionally only paid royalties on the public performance of a composition to the appropriate performance rights organization (ASCAP, BMI, SESAC). This money is then paid to the writers of the compositions. Unlike most other western nations, broadcasters in the U.S. have never compensated the artists themselves for any public performances. The same holds true for bars, restaurants, and retail stores. For the past 80 years, the record industry and the broadcasters have lived in harmony. The record industry worked the broadcasters, songs were played on the radio, records were sold, and everyone made money.

On the side of radio is the NAB (National Association of Broadcasters), represented by spokesperson Dennis Wharton. Mr. Wharton is trying to build momentum for his cause by referring to the group he represents as “America’s hometown broadcasters,” which is not the first phrase that comes to mind when I think of Clear Channel, a massive radio conglomerate and NAB member. Two members of congress, Reps. Gene Green and Mike Conaway (both from Texas, the corporate headquarters of Clear Channel) have also introduced an anti-royalties bill called the Local Radio Freedom Act, which has been gaining support in Congress.

Those in favor of the royalty include the MusicFIRST Coalition, who was represented last week by Frank Sinatra’s daughter and recording artist, Nancy Sinatra. Marybeth Peters, the Register of Copyrights, also supports the bill, as does the RIAA (who incidentally back MusicFIRST). Sound Exchange, who has close ties to the RIAA, apparently will be responsible for collecting these new royalties, similar to their current role in collecting digital performance royalties.

As submitted by Rep. Howard Berman of CA, the Performance Rights Act will:
(1) grant performers of sound recordings equal rights to compensation from terrestrial broadcasters;
(2) establish a flat annual fee in lieu of payment of royalties for individual terrestrial broadcast stations with gross revenues of less than $1.25 million and for non-commercial, public broadcast stations;
(3) grant an exemption from royalty payments for broadcasts of religious services and for incidental uses of musical sound recordings; and
(4) grant terrestrial broadcast stations that make limited feature uses of sound recordings a per program license option.
(5) provides that nothing in this Act shall adversely affect the public performance rights or royalties payable to songwriters or copyright owners of musical works.

The artist’s (and the RIAA’s) point of view is simple: the old ways of doing things no longer work in the new music economy. The artists have made significant money for the songwriters (and broadcasters) of radio hits, but have received nothing from the airplay of their music. A performance right in sound recordings has been imposed on digital services since 1995, including the controversial royalty on Internet radio. It is unfair that U.S. terrestrial radio gets a free ride when all the other radio platforms, as well as international broadcasters, are required to pay the artists for public performances.

The NAB contends that terrestrial radio has always been a partner for the artists, responsible for millions of dollars in record sales. Commonwealth Broadcasting President/CEO Steve Newberry, speaking on behalf of the NAB on Wednesday, thinks that “…local radio provides to the recording industry what no other music platform can: Pure music promotion. Radio is free, radio is pervasive, and no one is harming record label sales by stealing music from over-the-air radio.” He went on to mention that if the bill passes “…the value of this extraordinary promotion, and all of the financial benefits that come from it, will be harmed. Ultimately, less music will be played, less exposure will be provided for artists — particularly new artists — and music sales will suffer.” The NAB also believes that the blame for dropping revenues in music is misdirected, and that the real problem for artists is restrictive recording contracts.

My Opinion
The NAB and the RIAA (the jury is still out for me on Sound Exchange, who have a heavy RIAA affiliation) are not organizations that have the artist’s best interest in mind. Their job is to represent the best interest of their member companies. And although the NAB is framing this as a battle between the “local broadcasters” and the RIAA (taking advantage of the RIAA’s terrible PR problem), this issue affects artists at every stage of their career, signed and independent. Although income is falling, the broadcasters are still making money (radio revenues came in at about $20 billion in 2007, according to ICBS Broadcast Holdings President/COO Charles Warfield, who testified on behalf of the NAB) based on the content these artists produce, and to say the artists should not be compensated for this is the embodiment of the old-school record business.

For me, the real question is if terrestrial commercial radio is still effective at selling music. Fewer and fewer people are tuning in to the large commercial stations that make up a large part of the membership of the NAB, and the play lists at commercial radio are so tight that the number of artists that commercial radio “breaks,” in terms of converting radio play to mechanical royalty sales, is miniscule. While I think non-commercial radio (in particular college radio and NPR) and some commercial Triple A stations are good promotional options for independent artists (radio play helps to get folks to shows where they can buy merch, it provides some legitimacy for a press campaign, and also could work to help a licensing pitch, for example), I’m not convinced that radio works to move records anymore at such a significant rate that it pays for itself. Promoting to radio is expensive, even to non-com radio (see my earlier post on this), and of course there is no guarantee you’ll get spins anyway.

Lastly, terrestrial radio is no longer in the position to say that the promotion they wield is far superior to these other non-terrestrial radio outlets that do pay a performance royalty, in particular for developing artists. I think there needs to be parity between all forms of radio: satellite, online, and terrestrial. I’m confident that non-terrestrial radio will continue to gain market share over the coming years, and I think it’s likely that terrestrial radio will continue to lose listeners, too.

My only major concern with the Performance Rights Act (other than reservations about Sound Exchange and possible collection issues) is the effect it might have on the small non-commercial terrestrial stations that work to promote local artists. The bill does stipulate that these smaller stations will pay a smaller annual flat fee of $5,000, but profit margins are so razor-thin at non-commercial radio, that even this could cause a problem.

Would love to hear your thoughts!

You might be familiar with Lawrence Lessig as a long-time advocate for copyright reform and information freedom, and as the founder and architect of Creative Commons, a non-profit organization dedicated to grassroots copyright reform through the means of providing free tools to all content creators to mark their creative work with the freedoms they want their work to carry.

Lessig gave a speech in March for (the site is amazing, I recommend you check it out), where he talks about the history of the battles over the control of creativity, and the balance that he feels is needed between extremists on both sides of the copyright law fence. This is essential viewing. Check it out here: