Podcasting And Hawaiian Music

I've gotten involved in a discussion with some Hawai'i podcasting pioneers who have had some difficulty finding locally produced music, particularly Hawaiian music, to include in their podcasts. I've offered a few thoughts in their Yahoo discussion group. The following are a few thoughts on the situation. I originally entitled this a "Best Practices" paper, but I think it is better to refer to them as "things to think about." I don't podcast myself, but have been following developments in the podcasting community since its infancy. I've been involved in the promotion of Hawaiian music on the web for about the past 12 years, and know intimiately the objections and concerns that artists and labels have.

If you are not familiar with podcasts, and how they differ from music downloads and streaming broadcasts, I suggest reading the Wikipedia entry on podcasting or the Hawai'i Association of Podcasters About Podcasting page before proceeding with this document.

Disclaimer: I'm not a lawyer, so do not take any of this as gospel or legal advice. Acknowledging this, you may read on.

Things For Podcasters Wanting Hawaiian Music To Think About...

1. Remember that you are not dealing with Bono or Elton John. Most Hawai'i recording artists are very approachable at gigs. Take advantage of it. Perhaps email an introduction and find out when and where they are gigging.

2. When you approach an artist, you should know more about them than their name. Do you own any of their releases? Can you name any or have a favorite song? It would be more than a bit embarassing to approach an artist with the request to use their music in a podcast, and not be able to name a specific song that you want to use, or even name a CD. If they have no recordings, how did you find out about them?

3. If you are approaching a label, don't expect to get a blanket license for all of their music. Do your homework, know the artists and their work, and be specific. Why would so-and-so's music work well in your podcast? Why would your audience be receptive to it? A label might be more willing to test an up-and-coming artist, perhaps someone who's sales have been disappointing, in your podcast. "Sales have been disappointing" may not necessarily mean "no good", as many talented artists have failed to break on the radio in Hawai'i. You're providing an alternative means of exposure.

4. Known your numbers, mainly how many people "tune in" to your podcasts, and be able to refer the artist to other artists who can testify to the effectiveness of your podcasts on their sales. Don't bother with bandwidth statistics and such. Most musicians and labels don't care how many gigabytes or terabytes of data you move each month.

5. Get good artists, not necessarily "name" artists. Remember that a large percentage of your audience will never have heard of the artist, and wouldn't know Keola Beamer from Keola Donaghy. You are introducing them to a your audience. They'll judge (and hopefully buy) the music on its quality, not the name of the artist.

6. If you get permission, be sure to mention the artist/label's website in the broadcast, or refer users to a link on your blog/website. Remember that your audience probably won't be able to spell-out kealiireichel.com if you just pronounce it.

7. Put a link on your website/blog with the email address to the label, and ask your listeners to email the company and let them know they appreciate the inclusion of the music. In the case of an individual artist, don't put his/her/their private email address up there, ask your listeners to email you, then bundle them up and forwarded them to the artist when you have a number of them.

8. Communicate with the artist regularly and let them know what kind of feedback you are getting. You should be building a relationship with the artist and not doing the podcasting equivalent of a one-night stand, but don't be a pest. Realize that the overwhelming majority of artists also have day jobs, families, and gig nights and weekends.

9. Don't forget licensing issues. Just because an artist or label allows you to use their copyrighted performance of the song doesn't mean you are in the clear. Don't forget about composer royalties, administered by ASCAP, BMI and SEASAC. Seeing "traditional" on a song credit in someone's liner notes doesn't necessarily mean you are in the clear, either. Best would be to use a composition by the artist, with acknowledgement of their giving both performance and composer rights, or their performing a song that is in the public domain.

10. Don't act as though you are doing the artist a big favor for nothing. Be humble. You are proposing a relationship that is mutually beneficial to you and the artist/label. It's a business relationship - treat it as such.

Things For Hawaiian Musicians Approached About Podcasting To Think About...

1. If you are approached by a podcaster who requests permission to use your music - do your homework. While most podcasters may be forthright in their dealings with you and are sincerely interested in helping you promote your music, their motives may not always be altruistic. Many are trying to figure out a way to make money with podcasts, and while they are not selling your music, your music adds to the appeal of their podcast. You should consider contacting other artists who have allowed the use of their music in podcasts. Did it help spur sales? Any issues they had to deal with regarding that particular podcaster?

2. Before you give permission to a podcaster to use your music, be aware that you may not actually own your music. Unfortunately this is not uncommon for artists who fail to read the fine print in their recording and/or distribution contracts. If you do own the recording, did you compose the song and still own the rights to it? Remember that every time a Lennon/McCartney song is played, they (or in John Lennon's case, his heirs) get zilch. They sold the rights to their catalog eons ago. Finally, remember that not all "traditional" songs are not public domain. There are many relatively old Hawaiian songs that are still covered by copyright. You should have verified this before even recording the song.

3. Don't give a podcaster your weakest material. This will likely be the only time this particular audience will hear your music, and will decide whether or not to purchase your music. It doesn't have to be your prized song, but it should be strong and representative of your music.

4. There is a huge consideration for unsigned artists, particularly those who have not copyrighted their original songs, I repeat my previous disclaimer that I am not a lawyer, but this is my understanding of how this works. If someone know any part of this to be inaccurate, please let me know. I will frame this as best I can using myself as an example:

   I have written a number of Hawaiian language songs, never recorded (except as my own demos) and never released. I have them copyrighted. As they have never been publicly released them, I am not compelled to allow anyone to record them. However, once I have performed them publicly or recorded and released them (I'm assuming this would include their inclusion in a podcast), or allow anyone else to do the same, any artist can now record or perform them. They can ask for a license, and if I refuse, they can still record it using what is called a compulsory license. I believe, though I am not sure, that this kind of license is more expensive than if I grant them a license. But I cannot prevent them from recording or performing my songs once they have been otherwise publicly performed or recorded.

   The main point I'm trying to make is that if you're not under contract and have not copyrighted your music, you are potentially opening a Pandora's Box. Unless you plan to release both the composition and performance into the public domain, copyright both the song and performance before allowing it to be podcast to CYA (cover your ass). Copyrighting does not preclude you from allowing free use. You may also want to look at releasing the composition and/or recording under a Creative Commons license. I did this for my MA thesis.

Things For Both Hawaiian Musicians And Podcasters To Think About...

1. Discuss the technical aspects - what the bitrate of the podcast is going to be. While podcasters argue that the low bitrate (i.e., lower sound quality) is not conducive to piracy, some artists may object to the lower quality representations of their music and the subtleties that will be lost.

2. Like all kinds of relationships, things may sour between artist and podcaster. What happens if an artist decides that he no longer wishes his/her/their music to be included in your podcast? Must you or can you cleanly remove it? Obviously you cannot pull back copies that have been downloaded, but can you or would you edit your archive? If not, then both parties need to agree that the license is non-revokable. Both parties should discuss this unpleasant possibility up front. Fortunately it is a bit less sensitive subject than a prenuptual agreement.

3. Does the podcaster copyright the podcast, or release it under a Creative Commons or other license? How does that affect the artist rights? I have no idea; these are rhetorical questions.

If I Were A Recording Artist...

1. I'd make sure that I have the authority to grant permission, i.e., I own both the performance and composition, and am not violating any label or distribution agreement I may have signed.

2. Personally, if I was recording music right now, or had music commercially available, I wouldn't hesistate to allow podcasters to use my music, but would first protect myself and my rights, and address some of the issues outlined above. I would only allow it to be used with the clear understanding that once my music was in a podcast that I could not recind the right for the podcaster to use that music in that particular podcast. Some artists might not be able to live with that, and some podcasters may not be willing to go back and edit previously released podcasts. I would reserve the right, however, to not allow use of my music in future podcasts. The agreement could not allow use of any of my music forever.

3. I would be wary of allowing the use of my otherwise unrelesed recordings in a podcast, even if they were copyrighted, for reasons noted above. Maybe other artists would be happy to have someone else hear their music and want to recording, while paying royalties, obviously. Personally I'd be a bit more selective about who records my compostion.

4. I would make podcasting a part of my regular PR strategy for new releases, along with sending CDs to radio stations, but also allow use of older recordings that would appeal to a new audience.