Randall RobertsSome call it the gravy train, the gift that keeps on giving. To others, it’s a load of crap, and they cuss it. Every day it piles higher, this avalanche of music that arrives in tastemakers’ offices across the country, requiring both thoughtful efficiency and a cold-hearted detachment to conquer. The gravy train, it just keeps rolling along, pulling a bottomless trough of free music delivered to journalists, radio programmers, music supervisors and entertainment editors. Filled with new CDs — advances of forthcoming releases, full-art copies of fresh music, box sets from major labels, CD-Rs from budding bands looking for a break — each unrecyclable mailer is its own little plea.
Pay attention to my music, my story, me.
I matter.
If only you would listen, you would understand.
Most of these packages arrive with a one-sheet band biography, each a narrative gem:
Michael Fitz found himself on an offshore platform, drilling for oil. He was desperate and needed money. Within the loneliness and desolation, Michael started writing songs …
Or: Paul Geng is a singer-songwriter from Flushing, New York, and is an avid N.Y. Yankees fan. His third release, Modern Day Pygmalion …
And: Five Four teamed up with composer and producer Jonathan Keyes to create an audio CD of 10 instrumental tracks … inspired by the journey of Creative Director Andres Izquieta throughout Tokyo, as he developed Five Four’s fall 2008 line.
At times, these missives can be heartbreakingly lavish: The mailer will come stuffed with a CD, glossy photo, glitter, candy and folder fat with Xeroxed reviews, its sender oblivious to the volume of similar packages that arrives each day. Or the cute Miley Cyrus wannabe, whose promo-pic pose is so tarted up that you can practically see the label’s marionette strings stretched taut above her. Others are smart and efficient: a package with a CD and a single-sheet bio. These streamlined operations are sent from the professionals, who understand the avalanche, who participate and communicate inside this maelstrom.
For a music journalist, these piles accumulate quickly and come with a fundamental set of problems organized around a single reality: There is a lot of music being released in 2008, way more than even the most voracious music hound could possibly digest. The bounty therefore becomes something you have to deal with, like a farmer stuck with molding grain as winter approaches.
So then what? Do you throw it away, and let all that plastic end up in a landfill? Do you donate it to Goodwill, where some thrifty hipster will buy it for cheap? Do you give it to your friends? Do you sell it?
Often, nudge-nudge, wink-wink, the so-called “tastemakers” do just that. Of course, finding anybody in the music business to actually talk about this vast and ever-fluctuating underground economy is tough. Ask a publicist what he does with unwanted promos and there’s usually an awkward pause, as though you’d just asked after his porno collection. Few are willing to go on the record regarding their income stream for fear of being blacklisted, audited, or, Bono forbid, sued by Universal, which views every CD it sends out to tastemakers to be its property in perpetuity, long after the disc has languished in a crate somewhere. Last year Universal Music sued Pasadena-based eBay seller Troy Augusto and his Roast Beast Music Collectibles company for dealing in promo CDs. Universal claimed copyright infringement, arguing that Roast Beast had sold at least 15,000 discs that still belonged to the corporation. In fact, the label’s lawyers declared, even if Roast Beast had picked these promos out of a record-store Dumpster and put them on eBay, it would have been breaking the law; throwing away old promos is, to Universal, “unauthorized distribution.”
Ask the wholesalers and retailers who buy promos, and not only will they refuse to talk, but they will also urge you not to write the story lest you ruin their good thing. But flip through the used-CD racks at any record store and you’ll soon discover the volume of promo product unleashed on the entertainment world — and in no city is this bounty as great as in L.A. Rows and rows of CDs with the words, “For Promotional Use Only. Not for Sale.” Search “promo CD” on eBay, and pages of listings arrive. Hmm. Those CDs gotta come from somewhere.
“Everybody sells them, let’s be realistic,” says one prominent L.A. music publicist. “I’m sure employees at Universal do it. People at radio. Whenever you send out multiple copies of records, it’s going to happen. I mean, what am I supposed to do, send it back if I don’t want it and incur the postage? Or are they going to send a messenger to pick it up? It’s like the gays in the military: Don’t Ask, Don’t Tell. That’s how the majors look at it.”
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How Roast Beast acquired these promos is pretty obvious: “Writers are an underpaid bunch, and it’s a nice way to buffet your income,” explains a San Francisco–based freelancer who declined to give her name. “When I was just starting out freelancing, I used to plan out in advance how much money I thought I was going to get each month. It was part of my income. So when I get five copies of this terrible CD, hell, yes, I’m going to sell every last one of them. Like those Baby Lullaby CDs? I don’t have a baby, and I don’t like baby music. What else am I supposed to do with them?”
So many questions come with the bounty, questions exacerbated by the bigger transformation currently under way in the music biz as discs give way to digital. With so much music available at the click of a mouse, with Rhapsody offering millions of tracks, and vast servers filled with the entire world’s recorded output, why do critics need a hard copy? It’s much easier to search a database than a dozen crates of discs. But still, they come.
I’ve got piles of promos arranged in ways the outsider wouldn’t understand. One pile is for bands coming to town, one is filled with so-so stuff I may or may not want to burn onto my hard drive. Another stack contains reissues by California bands. Yet another stack is stuff that doesn’t interest me in the least.
And then, of course, there is the shockingly large accumulation of discs that I’m sure I need for my own collection. That pile comprises a lot of classical music, odd, obscure reggae and disco reissues, and everything that my favorite labels and artists have ever released. Ultimately, these chosen discs end up in majestic piles in the corner of my apartment, where they bask in the dust of specialness.
These groupings move around constantly, from office to bin to trunk to back seat to computer to home (to buyer’s trunk to warehouse to Europe and Asia). Ever in flux, the 5-by-5-inch chunks of plastic are little questions in need of solutions. What am I going to do with this second copy of Hercules and Love Affair’s new CD? Keep it, just in case I lose the first? And this advance of the new Lindsey Buckingham CD? Will I commit to loading it into my iTunes, then onto my iPod? What differentiates this CD from the other 150 I received this week? What label is it on? Does othermusic.com recommend it? (I don’t trust Pitchfork.) Which publicist is working the record? Does it have awesome artwork? (Yes, artwork matters.) Or, just as valid, do I merely have a gut feeling?
Okay, now multiply that by the 200 other CDs sandcastling on my desk on any given day, then add the 500 on the shelves in my office, and the 25 in the back seat of my car and the 50 more scattered in my trunk. It’s enough to make you long for the days of the LP and the years of a mere 800 new releases instead of the estimated 30,000 this year. But even then, in the late 1960s and early 1970s, when the notion of “tastemakers” amounted to skeezy stoner DJs and wonky-geeky music writers, the labels doled out LP promos.
Then, as now, the goal was the same: to bring the obscure into focus. In this world, an unknown band is a zero, pure darkness. Sending a physical CD is one little point of light.
“You have to shove it in somebody’s face in order to get anyone to pay attention,” says Daniel Gill, owner of Forcefield PR. “That means sending the actual CDs to them in the mail. I could send you digital links until I’m blue in the face for some of my younger bands, but you’re not going to listen to it. And I can be realistic about that. So I feel like if I at least send you the physical CD, somebody at some point has to open that envelope and look at the CD and decide what pile it goes into. If the artwork catches your eye, maybe you’ll listen to it, or something about the band name is cool — or just that it came from me — maybe you’ll actually listen to it.”
And in my case, he just might be right. The stacks surrounding my chair and computer are always at arm’s length, just in case, on a whim, I want to listen to, say, the new Tussle CD. There are piles at my feet that I knock over once a week. They sit next to my iPod, which I usually carry and which is loaded with new tunes that have graduated to a spot on my home computer, and are necessary for travel and exercise time.
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The average indie-music publicist has an e-mail list in the thousands and divides his promo mailings according to some sort of hierarchy. Bigger fish get better worms. “Some bands are, like, just go for it, send out 500,” says one veteran indie publicist. “We just want to get it out there, make sure that everyone who’s a potential tastemaker gets a chance to hear it. Sometimes we’ll send out 100 copies to a select list. And sometimes we’ll only send out real copies to the A-list — Spin, Rolling Stone, Blender, Pitchfork and [a few] others — and the rest of the people will get digital. It depends.”
Many prominent labels have abandoned physical mailings altogether, opting instead to send “digital press kits” — e-mail bundles that include PDF documents, a link to a zip-file download, high-resolution images and, usually, one free MP3 to post to a blog. The problem is, many music writers have come to expect hard copies, and unlike their younger peers, they are having a hard time making the adjustment. Writers respond in far greater numbers to the physical copy rather than a link to a download site, which perpetuates the cycle, says Judy Miller Silverman, longtime publicist and owner of Motormouth Media.
“When I send a note out to 1,000 people, saying I have a digital copy of a certain album available, I might get 20 responses. But when I send out a 300-piece mailing, I might be able to get 30 or 40 things secured. People are responding to the more tactile, physical sense of having it on their desk, seeing it, keeping it in their minds.”
That’s a lot of energy being wasted: not only the mounds of mailing envelopes that litter offices like mine but also the reams of paper used to print the material, the plastic used to create the CD, the energy expended to ship the package that in the end might get the writer $3 in credit at a record store.
Few in the writing community request to be taken off the lists, of course, and labels and bands looking for attention must walk the line between contributing to the problem and getting their music heard.
“I really feel like the writing community — and especially large, unnamed magazines — really demand the same sort of antiquated services they wanted back in the late 1980s,” says Silverman. “‘Can you overnight us two finished copies?’ To me, that’s $50 of waste, when I could hit send and digitally send you a copy you could share with everyone in your office. I can even digitally send you the artwork! So it’s a really fine line between waste, both environmental and financial, and getting the results we seek.”
One former major-label publicist remembers representing a nu-metal act in the early ’00s, when leak-panic was at its peak and labels insisted on having “listening sessions” to ensure that advance music stayed out of the hands of critics who might leak the disc to Napster. “I had just returned from New York and I got a call from my boss, telling me to hop back on a plane in order to play the record for Rolling Stone. That’s the way that it used to be with big records.”
In Roast Beast Music’s motion to dismiss the lawsuit filed against it by Universal Music Group for auctioning promos, lawyers introduced their argument with a dialogue from J.K. Rowling’s Harry Potter and the Deathly Hallows:
Bill Weasley: To a goblin, the rightful and true master of any object is the maker, not the purchaser. All goblin-made objects are, in goblin eyes, rightfully theirs.
Harry Potter: But if it was bought—
Bill Weasley: Then they would consider it rented by the one who had paid the money. They have, however, great difficulty with the idea of goblin-made objects passing from wizard to wizard…. They consider our habit of keeping goblin-made objects, passing them from wizard to wizard without further payment, little more than theft.
The Roast Beast Music Collectibles eBay page is your standard streamlined offering. Nothing special. Each of the seller’s 101 promos up for auction during a recent week boast that the item is an “Industry Edition — Not Sold in Stores!” Augusto, who declined to be interviewed for this article (though he did offer to buy my promos), is an eBay “power seller,” whose business has logged nearly 25,000 sales. His listings all contain a similar claim: “My auctions comprise items I find at record shops and elsewhere here in Southern California! They are NOT provided to me by the record companies!” In his disclaimer, he adds that Roast Beast doesn’t sell bootlegs, CD-Rs or fakes.
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Rather, Roast Beast sells advances, many of which contain different, less extravagant artwork sent to catch the eye of critics while keeping the expenses down. Lacking the full artwork and a UPC code, the advances are less desirable to your average retailer, and most stores don’t buy them. But some are coveted by collectors, mostly for the same reason that an Albert Pujols rookie card is wanted by another breed of obsessives: These are official, limited-run documents.
At the very bottom of each of Roast Beast’s listings is the following statement: “NOTE: Sale of this item is SPECIFICALLY ALLOWED under the Copyright Laws of the United States [17 USC 109(a)] which states that ‘the owner of a particular copy or phonorecord lawfully made … is entitled, WITHOUT THE AUTHORITY OF THE COPYRIGHT OWNER, to sell or otherwise dispose of possession of that copy or phonorecord.’”
Roast Beast is basically directing this disclaimer to Universal Music Group and any other concerned label, major or indie, that might take issue with Augusto’s selling activities. The statement reinforces a ruling handed down in the U.S. District Court on June 10, when a judge dismissed the Universal Music Group lawsuit against Augusto, filed in May 2007.
Universal, the largest record company in the world, owns some of America’s biggest labels, including Interscope, Island Def Jam and Geffen. Its lawsuit against Augusto claimed that Roast Beast had been auctioning promotional CDs for years, that these CDs still belonged to Universal, and therefore Augusto had no right to sell them. The complaint described Universal as a company that “creates, manufactures and sells phono records embodying its copyrighted sound recordings. In addition to the commercial recordings UMG sells to the public, UMG (like other record companies) licenses a small number of ‘promotional’ CDs to select individuals, often before a commercial release to the public of a full album, for purposes of promoting and advertising that commercial release.”
Universal claimed that because it never gave permission to the recipients (or, in its words, licensees, to which I say, I never agreed to license Universal’s music when I opened the package) to sell, give away or dispose of its copyrighted promos, Roast Beast was selling merchandise the company still owned.
Roast Beast’s attorneys simplified the argument in one of their defense briefs: “Like the goblins in J.K. Rowling’s Harry Potter books … UMG Recordings Inc. maintains that the eternal owner of the object is the maker, rather than the purchaser, at least where these ‘promo CDs’ are concerned.”
While acknowledging that Universal as copyright owner has the exclusive right to “distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership,” Roast Beast’s lawyers argued that right is subject to an important limitation: “[T]he owner of a particular copy or phonorecord lawfully made under this title” — in this case, Augusto — “or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” In other words, the defense argued, the purchaser is the eternal owner of the object.
But are you a purchaser if you simply receive a promo CD in the mail? Augusto’s lawyers proved that Universal has absolutely no plan in place to retrieve CDs once they’ve been sent out: “In short, those to whom UMG mails ‘promo CDs’ enjoy all the principal hallmarks of ownership: Their possession is unlimited in time, they are under no obligation to return the CDs, and there is no penalty to them should the CDs be lost, damaged or destroyed. UMG, for its part, also behaves as though it has parted with ownership: It does not keep records regarding the whereabouts of the CDs, nor has it ever sought their return from the recipients.”
So because Universal sent out its promotional CDs without any expectation that they would ever be returned, the items were in fact gifts, and therefore covered under what’s called the “first-sale doctrine,” which allows for recipients of gifts to dispose of them however they see fit, regardless of what the giver of said treats has to say about it. (In essence, it’s perfectly legal to regift.) The brief continues: “Were it not for the first-sale doctrine, lending libraries, video-rental shops and secondhand-book stores would all infringe a copyright owner’s distribution right, as would selling a book at a garage sale or loaning a DVD to a friend.”
Universal has vowed to appeal the ruling, and in doing so is trying to plug the pinhole in the dike while the tsunami that is illegal file sharing threatens to pull it under.
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What’s most odd about UMG’s actions is that the company is chasing single copies of its albums, when vast digital databases of that same album are available online. The company, in fact, targets the people whom Universal and the other major labels have so spectacularly failed at reaching with their own wares: obsessive fans who seek physical copies of music recordings. UMG sued Augusto for finding a little niche in the dwindling market for CDs — in essence, capitalizing where Universal has struggled. Anyone can track down a copy of the new Coldplay CD on a Torrent site, scour the Internet for MP3s of it and usually come up with an overflowing basket. It’s the object Augusto’s customers seek.
Don’t tell anyone, but I sell my CDs after I’m finished with them. I say this with the full knowledge that I may lose my spot on the train, might be hit with a lawsuit (though I don’t recall if I’ve ever sold a Universal promo), or may be perceived as not being “down” with the “scene.” I sell promo CDs in one of two ways: at a Hollywood record store, and to a buyer who has adamantly requested I not write this story for fear of upsetting the balance. For the most part, I sell for trade in order to feed my unquenchable lust for music. If I trade at said Hollywood record store (though I think certain buyers low-ball me), I ask for a credit slip, and then spend whatever credit I get, usually a couple hundred dollars, on vinyl, odd imports and reissues, stuff that doesn’t come free to me. Strolling the aisles with credit slip in hand feels like I’ve won a department-store shopping spree.
I appreciate the argument that I’m hurting a band or a label’s bottom line by making money off something they sent me for free, though ultimately I disagree and think that selling and trading promos is better for bands than shredding them. At least my way, a potential fan might find a new favorite band at a discount rate.
I often consider the ethics of my decision, and have drawn some lines around my selling. Normally I use any money I receive to buy more music, and in this way I feel that I’m funding an arts grant writ small. Each dollar gained from swapping out mediocre music goes into a pool that I disperse to worthy musical geniuses. (These days, South American and African reissues, and black metal.) Also, I have a few hard-and-fast rules. First, I never sell a promo sent to me by an L.A. band. I don’t sell promos sent to me by small, interesting L.A.-based labels. There is also a list of artists and record labels with which I’m so philosophically attuned, that it would feel like a betrayal to sell one of their CDs. And I never sell a CD before its official release date, because I think leaking music on to the Web is lame, and does way more damage than selling a measly promo.
Everything else is fair game.
“I have a box under my desk, and it’s filled up every two weeks,” says one editor of a prominent national music magazine. “I really do try to listen to most of what comes in. And then I’ll keep the things that I really like.” The discs then go to a communal table for the staff. “The things that don’t get taken off the free table, I sell.”
At that particular magazine, says the editor, a promo buyer goes the extra mile. “Sur-prisingly, there’s a guy who comes in and buys from everybody in the office. But I think that’s pretty standard for a lot of publications — and specifically music publications. I know some places I’ve worked where the editor in chief could be morally opposed to it, in which case you have to do it more on the down-low. Some places, the editor knows that it’s happening and he kind of winks at it, and it’s okay. And some places the editor sells his own CDs.”
That was the case at a rival glossy, too, where, without leaving his office, one editor swapped music for cash. The editor, as well, had another buyer who made house calls and apparently still operates in New York. A door-to-door buyer cruises Los Angeles, too, but he declined to be interviewed for this story.
Like everywhere else in the music industry, the promo market fluctuates, and in the past decade the price for CDs has been dropping. For much of the 1990s, I bought new and used music for a Midwest record store (shout-out to Vintage Vinyl in St. Louis, up 11 percent from this time last year), and promos would arrive daily. Usually they’d come from one of the half-dozen entertainment reporters at the St. Louis Post Dispatch, or a freelancer, or a buyer from another record store. We’d pay $2 to $6, and about 15 percent more if you wanted store credit. When I sold my own stuff, it wasn’t unusual for me to make a quick once-over of my music room, gather two handfuls of major-label detritus and end up with a credit slip for $150. (Much of my current LP collection consists of transforming plastic into vinyl.)
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But as sales of new CDs have plummeted, record stores have been forced to rely on used CDs to make up the difference, and the result is cheaper rates. Where new product might provide a 20 percent markup, used CDs are often marked up 200 or 300 percent. Stores make up for a loss of new-CD dollars by giving out much less for used copies. Those same two handfuls will only net me a $60 credit slip now. One magazine editor confirms that prices have tumbled in the past three years.
“Absolutely,” he says. “I used to work for a different publication — a much smaller publication — years ago, and you know those plastic mail bins? For a couple of those, I think I’d get $500. And it’s nothing close to that now.”
So as the prices drop and starving writers scramble to make up for lost “wages,” the question remains: What is the point of promotional CDs other than to serve as a visual reminder to a tastemaker? Do we really need them anymore? Is it worth the waste the mailings generate? And for music critics, does earning a spot on the gravy train even ensure that she will be more plugged in to the vast array of music available in 2008?
Eric Weisbard, a former editor at both Spin and the Village Voice, doesn’t think so. “The authority of the music critic, in days gone by, was just that they had this access to the records, which allowed for the kind of judgment no normal human being could possess. So much of one’s expertise was simply rooted in having access to an ever-growing record library.”
Music critics could speak with authority because they’d been given a golden ticket: a spot on all the mailing lists. Critics knew that these 10 CDs were the best of the year because they’d received the majority of them, and appreciated those the most.
But not anymore, Weisbard says. With the rise of iTunes, download and streaming services like Rhapsody and eMusic, and the expanding illegal BitTorrent sites, a critic is no longer sitting atop a hallowed throne. “If anything, the person who relies on what comes in the mail has access to less stuff now than the person who chooses to use the other channels. That’s a huge difference. The idea that your mail is an inferior product to the Web has really changed the stakes.
“When you can have access to databases that wouldn’t fit in your house even if you did receive them in the mail, whatever the new notion of what creating the perfect library is going to be, I doubt it’s going to be based on receiving promos and keeping the good ones.”
The problem will no doubt work itself out over time, he adds. He’s already noticed a change: When he and his wife, Los Angeles Times chief music critic Ann Powers, invite people to their house and send them down into the music room, “teenagers no longer stare at our postal tubs of promos with anything resembling envy,” says Weisbard. “It used to be that when kids were over and they saw all of our CDs, they wanted to sit down and plow through them and take what they could. It was like a total party for them. There was nothing more fun than giving my cousins piles of promo CDs, counting on people who visited our house to take a few minutes to sit in front of the tubs to see if there was anything. And there are still people my age who get pleasure out of doing that, but it’s very, very rare now for someone younger to come into my house and want to spend any time looking at promos.”
Motormouth Media’s Judy Miller Silverman says that the onus is on the critics and tastemakers to make the next move. “It isn’t until the writing community and the community of people who get promos really say, ‘I don’t need this in my life. I can listen to the music digitally and delete it if I don’t like it. If I do like it, I can play it on my iPod or I can burn a copy of it myself.’”
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