John P. Strohm is a transactional entertainment and intellectual property attorney with the firm Johnston
Barton Proctor & Rose LLP . John’s practice focuses on
the representation of musicians, songwriters and independent record
labels. Prior to becoming an attorney, John was a professional musician
and producer for over a decade. He performed and recorded as a member of
several notable alternative pop/rock acts, including The Lemonheads and
Blake Babies. Follow John on Twitter @JohnPStrohm.
I have a vivid memory of the first time I visited a major label
office. It was 1990, and various major labels were
courting my indie buzz band, the Blake Babies. The A&R
guy from one of the labels, Elektra, invited us to their New York
office for a meeting. I remember the sleek, modern
architecture of the office, the impossibly beautiful receptionist, the
state-of-the-art sound system in the A&R guy’s office, the vault of
promo product they let us pillage. It was nothing short of
thrilling to breathe that air; I felt a bit like Dorothy (or more
accurately the Scarecrow) in the Emerald City. That
office held the promise of everything I’d dreamed about since childhood:
stardom, wealth, opportunity, free shit…
My band never signed that deal, or any deal. We
broke up, and eventually our independent label sold to a major (Disney),
so all of our records ended up in the major label vaults anyway.
Our singer quit the band, signed her own deal, and became famous
for a time. Shortly after that courtship period the
business changed dramatically when Nirvana became a surprise success.
Suddenly, to the major labels anyway, “alternative” rock went
from a risky prospect with limited expected returns to a full-on gold
rush. I was stuck in my own deal, but I watched from the
sidelines as modest, formerly independent bands cashed seven-figure
checks from labels willing to bet on unproven acts.
With the CD
the dominant format and singles all but unavailable, the labels had
money to burn. The business model went like this: sign a
shitload of bands and assume that maybe one in ten will make any money.
But the one-out-of-ten will make a ton of money. That
was actually a sustainable model for a time. What it
didn’t take into account, however, was all the heartbreak it caused
musicians. Most musicians shared my feelings of destiny
when embarking on their major deal. They’d worked
for…this. Sign a deal, and then things fall into place.
But for the vast majority of bands that signed deals in the
nineties, the major deal meant maybe a little money in pocket, a
lot of money to managers, producers and (yes) attorneys, and
then…nothing. Heartbreak.
Things were weird (and pretty awful) in those days, but it was
pretty easy to understand. The major labels acted as the
industry’s gatekeepers. They had more money than God, and
they could afford to bet heavily on something totally unproven, and
write it off if it didn’t work out. Because the controlled
the all-important physical distribution and could provide access to
all-important commercial radio, an artist’s commercial success depended
upon the resources only the majors could provide. “Going
the indie route” in those days meant either you chose to take a vow of
poverty to maintain artistic integrity or you couldn’t get a deal.
Musicians felt ashamed to admit that self-release was their only
option. In those days, self release meant failure.
You hear a lot today about the failure of the music industry,
and it’s true, in a sense, that the industry described above has utterly
failed. But that’s the major recording industry, and it’s
a business model that has become obsolete thanks to technological
changes. Revenue is down, but as revenue has diminished
the excesses in the major industry have decreased. The
role of the majors has changed, and musicians no longer perceive the
majors as the sole gatekeepers. “Going indie” and
self-release thankfully no longer carry stigma, and musicians are less
inclined to perceive a major deal as an end in itself. “Making
it” in the industry is beginning to mean what it should have always
meant: consistently making a living from actual revenue rather than
borrowed funds.
I don’t think it’s a stretch to say over the past
decade the industry has fundamentally changed. Major
labels still thrive to some extent, though as digital distribution
becomes more and more common, the majors’ lock on physical distribution
becomes less important. Physical product still exists, but
it’s more or less relegated to the late adopters and audiophiles –
we’re moving quickly towards a world where physical product will be an
afterthought. Commercial radio is but one way people find
out about music, and the Internet is still something like a level
playing field. The net result of this
fundamental change is that there are now many gatekeepers and many paths
to success. This should come as good news to independent
artists, but it’s also scary as hell. We used to focus on
the “big break” – the bigtime manager or A&R person “discovering”
the act; now we’re still looking for that break, but it’s not clear what
form it will take. How do you pursue something when you
don’t even know what it will look like?
By way of example, I represent several independent bands that
most people inside and outside the industry would regard as “successful”
(i.e. selling hundreds of thousands of albums, selling out large
venues, placing songs in major motion pictures, television shows and
ads, etc.). I asked the manager of one such client
recently what he saw as his client’s big break. “Easy,” he
said, “the Pitchfork review.” I’d worked with this
particular band before and after Pitchfork, a popular tastemaker
online publication, reviewed their debut album. After the
rave review appeared, things fell quickly into place for the group –
recording and publishing offers from independent and major companies,
opening slots for major tours, synchs…it’s like the review provided the
momentum that made everything else possible. Pitchfork
definitely acted as the gatekeeper.
That particular client never seriously considered signing with a
major (though it certainly was an option), but they’ve enjoyed major
success. Prior to the Pitchfork review I could never have
shopped their music to major labels. The style of music
didn’t have a precedent as “hit” product (i.e. they didn’t sound like an
established act, such as Kings of Leon), and they didn’t have anything
quantifiable “going on.” Even if the A&R person
totally loved the music, they wouldn’t have signed the act. Once
upon a time major labels spearheaded what was known as “artist
development,” meaning they financed an artist over the course of several
albums and tours before deciding if the artist was commercially viable.
Artist development died gradually over several decades, its
demise hastened by corporate acquisition and consolidation in the
recording industry. Development is just not a good fit
when a company must justify quarterly earnings reports to shareholders.
So today majors pretty much only sign acts with something
already going on, meaning that development has already occurred – on
someone else’s dime.
These days majors want to see that the artist has developed a
following in ways that are quantifiable, such as SoundScan sales
figures, attendance at shows, gross income, etc., and they want to
participate in all existing and foreseeable revenue streams. Therefore,
for the artists just out of the starting gate, the majors don’t really
exist even as prospective gatekeepers. Artists are
expected to work social media, interact in person with potential fans,
develop a cottage industry – so that the majors can take something
that’s already happening “to the next level” (meaning huge commercial
success). But in order to get things started, artists must
appeal to these smaller gatekeepers before becoming even potentially
desirable to major labels and publishers. I know from
hundreds of conversations with indie artists that this chicken and egg
conundrum is extremely vexing. Bands that could use a deal
to get things rolling are too risky and expensive for majors to sign,
but bands that have developed themselves to the point where majors would
be interested often reach the conclusion that it’s in their interest to
remain independent.
So who are these smaller gatekeepers? I mentioned
Pitchfork, which is an obvious example. Pitchfork is not
genre-specific, but it takes its role as a tastemaker publication very
seriously and is often accused of snobbery. Pitchfork has a
large and devoted readership, so getting a positive review is a bit
like winning the lottery for a small, independent artist. Nevertheless,
a positive review in Pitchfork by no means guarantees commercial
success, and the vast majority of acts (particularly overtly commercial
acts) will never appeal to the editors of Pitchfork. But
Pitchfork is far from the only online publication acting as a potential
gatekeeper. There are hundreds of respected music blogs
and publications that desire to get credit for discovering the next
important act. It’s rare for the major online publications
such as Pitchfork to cover an act before the act has received a
groundswell of coverage in other, smaller publications.
On the
Internet, with a vast sea of options, gatekeepers are the agents that
focus our search for new music. Sometimes independent
labels serve a filtering function as quality distinguishers, and that is
a sort of gatekeeper function as well. If an artist
releases a record through a small independent label with a loyal
following, then the people who follow the label presume that the artist
is of a certain quality simply because they are on the label. This
is a function that independent labels have served since the dawn of
recorded music. It’s also a bit ironic, because many of
the current major imprints, including Atlantic, Motown, A&M and Blue
Note, began as independents that served the same filtering function for
consumers.
Another class of emerging gatekeepers is the music supervisors
who place music in television programs, motion pictures, advertisements
and video games. The cliché is that these media have
“become the new radio,” and there is some truth to that. It’s
rare that a single “synch” placement will provide the elusive big break
for an artist, but one placement often leads to other placements, and
there certainly have been instances where a single placement has
provided that momentum, such as the Pitchfork review did for my client.
New companies seem to crop up every day offering to “pitch”
music to supervisors for synch placements for a percentage of the take,
and some of these companies are very good.
The point is there are many gatekeepers and many ways to get
music out to a broad audience. There’s also an enormous
amount of competition. It’s a good thing, in my opinion,
that musicians make money when they actually connect with fans and sell
products and tickets. The problem is taking advantage of
these new opportunities – finding ways to be heard above the din.
It is a frustrating situation – we know that there are numerous
opportunities to be “discovered” on the Internet. Still,
it’s a challenge to kick open the doors. You simply can’t
force the sort of success my client had in receiving a breakthrough
review in a prominent publication. But you can figure out
ways to get out there and get noticed. The crucial fact to
understand is that at least 90% of the music being promoted on the
indie level is shit. The people and companies trying to
provide a filtering function are constantly fatigued by the barrage of
aggressively marketed bullshit, but the upside is that the good,
thoughtful, well-crafted music that contributes to the culture is fairly
easy to quickly recognize. I’m personally turned off by
aggressive marketing gestures, and the vast majority of the time the
music that’s aggressively marketed is awful. The point is,
if it’s good and you make focused, reasonable efforts to reach the
people who are likely to respond, the music will get noticed.
Here’s another music industry myth: there are no overnight
successes. In the old industry that was absolutely true,
but these days overnight successes do happen. The problem
is that it typically takes years for an artist to get the right breaks
to find that sort of success. Once you get that review or
synch or your video goes viral or some mega-prominent artist name-checks
your band, then things can happen very quickly – literally overnight.
But the challenge is finding those essential gatekeepers to
enable things to happen on that level.
So here’s my
advice: don’t put it out there until it’s actually good and original.
There’s a glut of shit out there right now; don’t contribute to
that. Make good, thoughtful music and then make a clear,
focused plan to get it out there. Then it might or might
not happen – but at least you’re not sitting around waiting to be
discovered by some douchebag wearing a $500.00 hoodie who only listens
to the first ½ of a song at your showcase. And the best
part: an artist can be successful without transferring ownership of
songs and recordings. The new industry is just taking
shape, but at the moment it’s possible for artists to find success on
their own terms and to remain in charge of their careers, and that’s
definitely a good thing.
