New musical excess

BEWARE, if you do reviews: the fondness of lawyers for "indemnity clauses" has plumbed new depths. The Freelance has obtained the following memo, lately sent by the editor of a music magazine to their commissioning editors:

Gents,

The issue of indemnity against leaks of advance material is rearing its ugly head again.

Can you please ask your guys to send a note to the freelancers saying that under no circumstances should anyone sign anything which accepts liability either on the writer or on [us] for leaks to the outside world? We are simply not insured against this and a leak of a new Robbie Williams album, say, which could be traced back to us could cost millions.

So what's it all about?

Music publishers have been getting increasingly paranoid about leaks of review copies onto the dreaded interweb. They like to believe that the release of an album is a news event equivalent to the patenting of an elixir of eternal life - when it tends more to resemble news of a proof of the Poincaré Conjecture in mathematics - that is, non-fans universally respond: "Er, yes. What is it?"

The availability of songs from file-sharing services may depress sales - economists are still arguing over that. It would, the Freelance guesses, be a boon to reviewers if they had a note through the door saying their legitimate copy was awaiting collection in the basement of a sorting office orbiting Alpha Centauri, or if the Public Relations department forgot to send it, but neither of these things ever happen.

Publishers don't like it, anyway. Those of these leaks that have been traced turn out to be by over-enthusiastic music industry insiders - or their over-computer-literate kids. But the finger keeps getting pointed at journalists.

So publishers have been sending "watermarked" CDs, with the reviewer's name on them physically and embedded in the digital signal too. They have been making similarly "watermarked" copies available on password-protected websites or in email. And these are often accompanied by contracts in one form or another, uttering pain-of-death threats if the music is leaked - specifically to the web - pre-release.

Of course it would be a breach of copyright to do this anyway, but the extra hazard is the indemnity clause. This can hold both the freelance reviewer and the (deeper-pocketed) publication liable for any damage that the publisher claims has been caused.

So, as the editor says, don't sign. You could lose everything if someone else got hold of your copy and put it on the SoulSeek site.

There's a further problem. Watermarked CDs and emailed files sometimes arrive unannounced. Sometimes they arrive despite pleas not to send them. The Freelance hasn't seen an example yet, but we've seen lots of lawyers and wouldn't be surprised if they'd included a clause that claims you accept their contract by opening the packet or file.

Music journalists are talking to music publishers about ways of improving this.

The only alternative at the moment - for the big-star "event" releases - is for the reviewer to go into the record company offices to listen to the new masterwork there, under the watchful eye of a security guard, obviously deprived of whatever refreshment aids appreciation of the music in question and often restricted to just the one listening for fear of, you know...

Sometimes what they hear is not even the complete or finished album. Sometimes reviewers have even been invited to spend twelve hours on a plane to spend an hour in a listening booth. If this is supposed to impress, it's failing.

© Mike Holderness