The Wall St. Journal has a case study of Kid Rock’s latest album, Rock ‘n’ Roll Jesus; the paper says that, because Rock wouldn’t allow the thing to be sold on iTunes, it has sold 1.7 million copies–and that this was leading his record company, Atlantic, to contemplate yanking the work of other artists, too, from the service.

This year, Kid Rock, whose real name is Bob Ritchie, has had a massive radio hit with “All Summer Long” — a nostalgia-soaked rocker built on riffs sampled from two of the most iconic songs in classic rock: Lynyrd Skynyrd’s “Sweet Home Alabama” and Warren Zevon’s “Werewolves of London.”

Mr. Levitan, his manager, points out that if his client’s album were sold the way iTunes wants, many of his 1.6 million U.S. album sales to date would instead have shown up as 99-cent downloads of “All Summer Long.”

When I first read the article Mr. Levitan’s contention jumped out at me, and I began to ponder his words. I absent-mindedly torrented the album and mentally committed to spend all the time it took to get it trying to figure out the implications of his scheme or plan.

Here’s what I came up with:

1) Well, yeah. If you can’t get a certain product in one of the venues from which you’d expect to, sales will go up in the venues remaining.

2) But since each new release from an artist sells differently, you can’t really tell exactly how much effect such a change would have.

3) Indeed, 1.7 million is pretty low for Rock–he used to sell ten million plus.

4) What’s really going on here is that the music industry is playing another round of whack-a-mole with the singles format. The industry did away with it ten or twelve years ago for just this reason–why give kids an opportunity to buy a song for 99 cents when you can present them with the sole option of shelling out $13.99 to buy the song on a nice new shiny CD, along with eight or nine other songs they might not want?

5) This was one of the resentments of the industry that has fueled the file-sharing networks. (”Sure, it’s wrong, but the record companies do worse every day.”)

6) Since, in stark contrast to ten or twelve years ago, file-sharing now exists, the industry’s math isn’t quite the same. Let’s say back then the industry needed to con persuade only seven or eight percent of the fans of a given song to part with the higher CD price to break even on the deal. Today they have to do that minus the number who will just get a friend to email or swap them the song they really want. The number remaining represents a very small and very unsophisticated part of the audience–meaning that additional full CD sales would be minimal.  (To be fair, you could also add on those with enough disposable income who would ordinarily just buy the song on iTunes but would then shrug and purchase the whole album when they find they couldn’t.)

7) But that just reminds us that Rock is something of a special case in any event. “All Summer Long” can’t be found on Elbo.ws, suggesting either that Rock has an extremely aggressive campaign to keep his music off the MP3 blogs, or that the Kid Rock fan base and computer-savvy music fans don’t as yet overlap significantly. The song itself is pretty sad, with Rock chanting some singsongy nostalgic drivel over those riffs the WSJ story mentions. The crude construction of the song and the dates of those samples capture the demographics of his fan base pretty clearly.

Whoops! My torrent’s finished.

A week and a half ago, Hitsville listed the five stories that had metastasized as the major media ignored the John Edwards affair story. A few have begun to dribble out. In yesterdays NYT, for example, David Carr takes a look at the Enquirer and finds something surprising:

Like any journalism, what the Enquirer does costs money — the Edwards investigation took nine months — and that’s in short supply at the headquarters of American Media. The company’s revenue for the quarter ended June 30 was $119 million, down 2 percent. Operating income was off slightly at $26 million and over all, earnings before interest, taxes, depreciation and amortization were down 6 percent.

Decent numbers, but a massive debt overhang is demanding better performance. Early next year, $400 million comes due and if those payments cannot be made, another $500 million will come due. With almost $1 billion in debt and a declining subscription-based tabloid business, the dream of taking the company public seems very distant.

While the Enquirer’s parent company may be debt-laden and the tab business may be in decline, a 20+ percent return and $2 million a week in profits is nothing to sneer at. I would have liked more details—how the decision was made to pursue the Edward story, how the paper went about it, how many people were on Edwards’ tail, and for how long—but there was an actual story there, as it turned out.

That sideshow aside, others have ventured into trying to explain why the country’s major media, almost without exception, didn’t follow up on the Enquirer’s investigation. Isn’t it strange that, after two weeks of hand wringing, many major organizations still haven’t answered the question intelligently or honestly?

While the papers should probably have been devoting some resources to the Edwards story after the original stories alleging the affair were published many months ago, the story changed significantly on July 22, the day the Enquirer reporters caught Edwards in that Beverly Hills hotel.

Even if you don’t want to report about the personal activities of Edwards, this falls under the heading of pure spectacle—Edwards barricading himself in a basement restroom, having been treed there, so to speak, by the baying Enquirer hounds—and is of intrinsic interest.

(As I noted before, this is particularly true when you consider the utter triviality of so much news coverage, much of it generated from PR initiatives from the politicians themselves. Live by the photo op with cancer-stricken wife, die by the basement bathroom assault from tabloid hyenas.)

After that point, the papers were suppressing information. (The chances that the Enquirer made up the confrontation seem pretty low.) This distinction is glided over almost uniformly by the post-mortemers, you might say conveniently so.

In the NYT story discussing the lack of coverage (which came out only after Edwards had confessed), the Wash Post’s top editor didn’t get pressed on this point:

“These kinds of allegations fly around about just about every candidate,” said Leonard Downie Jr., executive editor of The Washington Post, which had not written about the affair until Friday. “We checked them out and we asked questions, and at no time did we have any facts to report.”

Foxnews.com had, at that point, confirmed that the confrontation in the hotel had happened, so the papers seem to have had a verifiable contention on their hands. They could interview the Enquirer reporters, and talk to people at the hotel, and then get a comment from Edwards. That the Post and every other major media organization didn’t do that shows that they had an agenda that isn’t explained by their excuses.

Downie’s not an unserious guy, but it’s kinda sad when the editor of the Washington Post displays the same sort of fact avoidance and weak rationale of, say, Dennis Ryerson, editor of the Indianapolis Star:

[Y]es, the media were slow to react to the Edwards story. Is that automatically bad?

Anybody can post anything on the Internet. A lot of good information shows up but a lot of lies, innuendoes and outright falsities surface as well.

… or Jack Lessenberry, ombudsman of the Toledo Blade:

Ron Royhab, The Blade’s vice president-executive editor, said, “Yes, we knew about these rumors, but we aren’t in the business of reporting rumors and gossip just because it shows up in a tabloid somewhere.”
[…]
I am not sure if The Blade should have done anything differently.

… or the redoubtable Connie Coyne, the Reader’s Advocate from the Salt Lake Tribune:

Every once in a while folks in the journalism business get their shorts in a knot for what can seem to be no apparent reason.
The latest knot is about whether the mainstream media (newspapers, television and radio, as opposed to blogs and tabloid publications) should have jumped in right after The National Enquirer and others printed stories about the rumors that former Democratic presidential candidate John Edwards was cheating on his wife (who has stage 4 cancer) while he was running for the top political job in the country.
Remember, please, that the flap is about printing rumors, not investigating rumors to track down fact.
The mainstream media outlets - for the most part - stayed clear of the Edwards rumors until after Edwards finally admitted the affair, saying he told his wife about it in 2006.
The National Enquirer, apparently hearing the rumor, rushed out to California where it exercised its stock-in-trade, checkbook journalism, to buy information from a source extremely close to the mistress (some folks guesstimate the information came from the mistress in exchange for a big fat check). 

(Links via Romenesko.) Those guesstimating folks with their shorts in a knot!

The Indiana Star’s Lessenberry and Salt Lake Tribune’s factually challenged Coyne are good examples of how newspapers use ombudsmen to cover up problems, not highlight them; you just hire someone who (in Lessenberry’s case) doesn’t think too hard or ask uncomfortable questions, or (as in Coyne’s case) who writes pugnaciously on a subject with the basic facts of which she is unfamiliar.

Any conscientious reporter faced with such dissembling would press through the obfuscation. The story wasn’t rumor and gossip: At this point, it was a full-on Marx Bros. routine, seen by more than a half-dozen people, that included a luxury hotel, a philandering pol, a dizzy mistress, a baby, a staircase, a men’s bathroom, and, finally, a deus ex machina in the form of a hotel security guard who in the movie version, I am sure, will be played by Billy Gilbert.

But again, the issue now is not whether the papers should have written about that imbroglio … it’s that they’re not even being straitforward about the facts involved while scrambling to justify to readers why they didn’t! And the mystery of what the actual rationale was for not writing about Edwards and the hotel continues, from papers like the Wash Post to TV networks like CNN.

If only they employed a media critic who would take a tough look at the issue….

From today’s WSJ ($):

On Thursday, Ticketmaster, a division of Barry Diller’s IAC/InterActiveCorp, begins trading as a standalone company—just as the ticketing giant faces one of its biggest challenges.

Ticketmaster’s largest client, Live Nation Inc., plans to launch its own ticketing business in January, after their current 10-year contract expires. Live Nation concerts last year represented 14% of Ticketmaster’s $1.2 billion in revenue, and Live Nation has made no secret of its desire to compete with Ticketmaster for other clients in the future.

Concert ticketing is a completely pointless business, made possible only by the unusual economics of live music; there’s no real competition for the consumer’s dollar when he or she wants to see a particular act. In this context, the extra dollars you get charged for those mysterious ticketing and handling fees are rarely a deal-breaker.

Over the years Ticketmaster has carved out a niche for itself by exploiting this phenomenon in a canny, if indefensible, way: Jacking up the fees even higher, and kicking parts of them back to the venues and artists to keep its hegemony over the business secure.

Live Nation, which, as Clear Channel’s concert arm, debauched the concert industry over the past decade, has long envied Ticketmaster’s money stream. Now it has a chance to cash in itself.

The only good news for consumers is that, once it solidifies its hold on the ticketing industry for its own concerts, the audience may start questioning why it’s paying an additional ten dollars a ticket to the company for the privilege of buying its own product.  (When you buy a lawn mower at Sear’s, the store doesn’t charge you a “purchase fee” or a “cashier’s fee.”)

But that’s only if the concert audience stops acting like sheep. Unlike the recorded music industry, which is having its lunch eaten by digitization, there’s no parallel on the horizon for live shows.

Not every documentary has to be fine journalism, of course, but, lacking claims to some aesthetic extra-reality ineffability, they should offer the basics.

That was my complaint about the Roman Polanski thing on HBO. You don’t have to agree with the facts. You can refute them. But not to mention them is tantamount to fraud.

Reviewers don’t always have the inclination or wherewithall to check them, however. Tom Shales does, in his review of a new HBO documentary on Helen Thomas:

What’s disappointing about Thomas, and troubling about the film, is her stridency in criticizing Israel and defending its enemies. Other than a passing reference to Thomas’s parents as having been Syrian immigrants, the film never hints at Thomas’s anti-Israeli rhetoric. In her writings, she’s already dismissed both John McCain and Barack Obama as being friendly to Israel and hostile to the Palestinians, “so the Israelis have no worries about the November election.”

Especially during the current administration, her “questions” at press briefings have been more like tirades, on one occasion prompting Tony Snow, the late journalist who was then press secretary, to respond, “Well, thank you for the Hezbollah view.” This would have been a pertinent and amusing clip to include in the film. Not for nothing was Thomas recently hailed as “the epitome of journalistic integrity for over 57 years”—by the Arab American News.

You don’t have to disagree with Thomas to acknowledge that it should have been in the film.

Taken with the Polanski issue, you have to wonder whether HBO’s highpowered (and press-friendly) documentaries chief, Sheila Nevins, should be held accountable to the declining standards in the division.

—————
Previously in Hitsville:

Roman Polanski: The Ick Factor
The Polanski whitewash continues
P.S. on ‘The Polanski whitewash’

Via the Daily Swarm, a WashPost story about Pandora on the edge:

Pandora is one of the nation’s most popular Web radio services, with about 1 million listeners daily. Its Music Genome Project allows customers to create stations tailored to their own tastes. It is one of the 10 most popular applications for Apple’s iPhone and attracts 40,000 new customers a day.

Yet the burgeoning company may be on the verge of collapse, according to its founder, and so may be others like it.

“We’re approaching a pull-the-plug kind of decision,” said Tim Westergren, who founded Pandora. “This is like a last stand for webcasting.”

Webcasters like Pandora and SoundExchange, which collects moneys from web radio for artists, are in a high-stakes battle over how much the stations should kick back, and stories like this on one level are just part of the PR campaigns that emanate from both sides. That said, it’s obvious that the copyright board’s per-song per-listener royalty structure is flawed, benefiting as it does larger companies. Royalties flowing back to the artists and labels should be based on a percentage of a company’s revenues. It’s not  hard to see where this is all going:

1) The music industry uses its ferocious lobbying power to get laws or regulations that break its way
2) As a result, promising new models for the industry get stifled
3) What do survive are big-money operations that screw their customers and get in bed with the industry
4) The result is an inferior version of a potentially superior product—in this case for example “internet radio” that sounds a lot like “Clear Channel radio,” laden with commercials and compromised by payola or its equivalent

In the old days, that would be the end of the story. Today, of course, it’s not. It just means listeners will gravitate to illegal downloading and sharing and passing around music with no royalties at all for the artists. Here again, the industry, with a screw-the-customer mentality deep in its DNA, is busily trying to charge people more for a crummy product when the audience has a better one available free.

Hitsville can’t wait to see Tropic Thunder; he’s traveling and missed the screening. Stiller’s funny, Robt. Downey’s the man, Zoolander was a hoot, there’s the Hollywood satire, etc. etc. etc.

But none of that doesn’t mean that DreamWorks didn’t spend too much money on it, that it isn’t going to be a flop, or that certain parts of the industry media haven’t been played like a fiddle to minimize the inevitable image problems that result. Consider Nikki Finke, the usually pugnacious industry blogger, and her ginger handling of the latest box office on the film:

Very early Thursday numbers for Tropic Thunder’s domestic box office are running around $4.5 million after its Wednesday opening take of $6.5 million in 3,319 theaters. And tonight DreamWorks/Paramount is starting to revise downward the weekend and 5-day forecasts for the R-rated movie-within-a-movie comedy from Ben Stiller.

And just a few days ago?

Here is what my box office gurus are predicting: low $30sM for Friday-Saturday-Sunday and low $40sM for the 5 days. As one of my experts analyzes, “Unfortunately, a few of the tracking services say that Tropic won’t be as high as Pineapple. They are saying about $35M for the 5 days. My gut is higher. I bet $42M for the 5 days. The reviews could not be better, the heat is huge, people love comedy. I think it will surprise.“

Emphases added. Yeah, well the film’s box office was surprisingly low. Generally Finke would be chirping about the releasing studio’s bad fortune, but there’s a strange forcefield that emanates from anything having to do with Steven Speilberg, and the DreamWork’s PR machine has been working overtime to drum up publicity and spin the film as a Paramount flop and not a DreamWorks one. (If you recall, just a few weeks ago the film’s success was so hyped the NY Times was calling it a “gift” from DW to Paramount.) Yesterday, Finke was still seeing it from DreamWorks’ perspective:

Well, the studio fully anticipated the soft Wednesday opening …

They expected it! That was for Wednesday; and now, an equally soft Thursday result. This I guess could be said to be unexpected. And that $42M yesterday … ?

Currently, the studio is expecting Pineapple Express-like North American gross of low to mid $20sM for the Friday-Saturday-Sunday weekend (down from low $30sM) and mid $30sM for the 5 days (down from $40M).

Forgive the close parsing but note a) that $42M subtly sank to $40M before b) sinking even more to “mid $30sM” to a c) “Pineapple Express-like” gross for the weekend, which strikes one as odd because Express is such a big hit, until you realize d) that she’s talking about that film’s second weekend gross.

In other words a film with three times the stars and three times the budget and half the opening box office may not be able to beat last week’s top opener on the second week out.

Finke has also raised her estimate of the film’s cost to more than $110M, up from $100M. Putting that budget increase together with the box office estimate drop, in other words, DreamWorks lost $20 million overnight.

Tanya Anderson is the single mom in Oregon, living on disability, whom the RIAA has been legally assaulting, against all the evidence, as a music pirate. After years of bad behavior, the industry has finally paid her a six-figure judgment. She and her lawyers had refused earlier settlements, leaving her open now to sue the industry back for malicious prosecution.

Hitsville’s previous discussion of the case here.

Slashdot discussion here.

Business Week’s long look at the case here.

The WSJ takes a look at the Jammie Thomas affair, which is awaiting a key reconsideration decision by the judge in the case in Minnesota. Thomas was the first person to go before a jury in an RIAA file-sharing case … and got her ass kicked to the tune of a several hundred-thousand-dollar fine late last year. But, says the Journal:

[…T]he judge in the case, Michael Davis, says his instructions to the jury might have been wrong.

Judge Davis told the jury that making songs available online for distribution to others was copyright violation and that the record companies did not have to prove distribution took place. He has since learned of a federal district-court case in Phoenix that ruled that making songs available was not copyright violation. He is weighing granting Ms. Thomas a new trial.

This is the questionable “making available” contention by the RIAA. Those fighting the RIAA say that the industry has to prove that specific songs were uploaded to convict someone of illegal file-sharing. The industry says that merely making the files available is grounds for conviction.

The WSJ story has a good analysis of the arguments and the status of the various cases in different parts of the country.

Wired News’s overview of the Thomas case is here.

Now we’re seeing why there’s been so much nattering about the so-called controversies in Tropic Thunder: Robert Downey in blackface, use of the word “retard,” and so forth. Nikki Finke:

Reliable sources are telling me that very early numbers show the Wednesday opening for Ben Stiller’s Tropic Thunder from DreamWorks/Paramount were just around $7 million from 3,319 North American theaters. (But another R-rated comedy, Sony’s Pineapple Express, did $12.1M a week ago.)

In other words, Tropic Thunder, which had Robert Downey Jr., the biggest actor of the summer; Ben Stiller; and Jack Black, was outgrossed by almost 60 percent by a stoner comedy with a couple of sub-level actors. DreamWorks knew it had a dud on its hands and did anything it could to get the thing some attention.

The principals of DreamWorks are involved in an acrimonious split with Paramount right now and doesn’t want to be seen producing flops ; it’s hard to believe the studio wasn’t behind the somewhat convoluted argument about Tropic Thunder’s box-office prospects in that NYT story Hitsville wrote about two weeks ago (”Tropic Thunder: A case study in PR-friendly journalism“). The story described the film as a “parting gift” from DreamWorks to Paramount:

The feature, the lede story in the arts section, is a case study in how a mainstream piece of journalism can be working a not-so-subtle agenda for one side in a dispute. Consider this passage about the film’s prospects, right after the stuff about the “parting gift”:

The movie clearly has hit potential. Directed by Mr. Stiller, it has an ensemble cast also including Jack Black, Matthew McConaughey, Steve Coogan and Nick Nolte, not to mention Tom Cruise, in a raucous cameo as a vulgar studio chief.

But Paramount executives also face the delicate task of selling what may be the raunchiest comedy yet in a summer that has seen more than its share. […]

If they fall short, a production budget of about $90 million and tens of millions of dollars in marketing money are at risk. A soft performance would also compound the embarrassment of “The Love Guru,” the Mike Myers raunchfest that flopped when Paramount released it in June.

In other words, DreamWorks has handed Paramount a sure hit, which the studio may screw up, just as it did The Love Guru … and if it does… it’s an embarrassment for Paramount.

This seems crazily biased to me. Why does DreamWorks get credit for doing a Ben Stiller movie in the first place? Night at the Museum made nearly $600 million worldwide; isn’t Stiller doing DreamWorks, a failed studio, the favor? And if it’s a flop, wouldn’t that mean the thing wasn’t that much of a gift in the first place?

You can see how DreamWorks-friendly that story is in retrospect. Finke, too, casts the box office results as nicely as she can:

So what are its weekend prospects? Well, the studio fully anticipated the soft Wednesday opening and still believes Tropic Thunder can make $40 million in its first 5 days. “We will play to a little older audience than Pineapple Express, so we should do better on Saturday and get to about the same box office,” one insider tells me. But one problem is that, unlike Judd Apatow movies, Tropic Thunder has underweighted wanna-see among the gals: there’s only moderate interest among women under 25, and zilch interest among women under 25. Another worry is that this was a very expensive laugher, with a negative cost of $100+M.

If the NYT $90M production budget is correct, the negative cost (including marketing expenditures) is actually $120M or $130M. Pineapple Express, by contrast, cost $27M, according to Box Office Guru. In those terms, the problem with the movie is not what the NYT said it was (selling a raunchy comedy, as if that was a negative) but rather that DreamWorks had spent too much money on the film.

And finally, while some Apatow movies have a sweet side and a love interest, Express, with an almost all-male cast and a plot involving pot smoking and violence and not much else, isn’t one of them. So even that doesn’t explain Tropic Thunder’s box office problems.

The new Ben Stiller movie has a subplot parodying Hollywood films about mentally disabled people, apparently with liberal use of the word “retard.” Suddenly we’re hearing that rights organizations are protesting the use.

Like Robert Downey’s much-hyped blackface, the protests have no resonance, because the objects of ridicule in the film aren’t blacks or mentally disabled folks. That hasn’t stopped DreamWorks from playing up the controversy: The Downey-in-blackface issue was first leaked to Drudge months ago, a clear sign the studio was looking for a little naughty buzz around the film.

Since then, reporters like the NYT’s Michael Cieply, with his drumbeat of coverage, or LAT blogger Elizabeth Snead, have helped the studio out immensely.

Among the many other things the stories don’t mention is that the word “retard” has been a staple in the rise of the post-Dumb & Dumber idiot-comedy era. Why all the noise about its use in a parody film-within-a-film?

The fan boys are incensed with some embargo enforcement from Lucas World for the release of a new Star Wars animated film, Clone Wars. One strain here, wherein Ain’t It Cool News had to take down an early review. Slashdot is also going on about it here; a dopey blog item from the Guardian here.

As the Guardian item shows, embargoes aren’t always understood, even by the press. I think they are fair. The studio has a film; it shows it to journalists early, on condition that the reviews not run until the day of release. There’s nothing wrong with that; the journalists are free not to agree to the embargo, and to wait until the film is released to review it*.

For smaller films, the screenings are held in empty theaters, often in the afternoon. For most major releases, though, these are often in the form of early-evening screenings, for which free tix are distributed to the public.

From the studio’s perspective, this can make for a better reviewing environment (with an audience pumped up to see a “special” early showing) and beyond that hopefully can give the film some “word of mouth” early buzz.

Since the whole point of the latter is to get people talking about the movie, the phenomenon of internet-era early reviews magnify the potential to either help or harm a particular film.

Ain’t It Cool got invited ex officio to an early Clone Wars** screening, posted a review, and then was asked by Lucas to take it down. The site did it, but didn’t like it:

Does this whole thing stink? Yep. Sorta does. They’re having public screenings of the film, like yesterday’s show at the Egyptian, and if I’d gone to one of those, no one would be able to embargo anything.

*In practice this never happens. With the increase in Thursday midnight screenings, more and more papers are reviewing major films a day early. National outlets like Time and Newsweek have always been given a pass on this, not so much because their reviews are so influential but because they can, once in a while, provide slobbery cover-story PR bonanzas for hard-hitting skeptical journalism about big-budget product like your Da Vinci Codes and Harry Potters. Peter Travers of Rolling Stone (which is a biweekly) is a reliable blurbmeister and gets a pass as well. The trades, Variety and the Hollywood Reporter, generally review at the first public screening, often prior even to film festivals.

** The film, a collection of the first three episodes from an upcoming TV series, is not getting good early reviews in any case. Variety:

Leaving behind the traditional animation employed on the three-season, similarly combat-oriented “Star Wars: Clone Wars” series aired on the Cartoon Network 2003-05, Lucas & Co. here employ a computer-generated anime/manga style that results in somewhat more dramatic compositions and color schemes. But the movements, both of the characters and the compositions, look mechanical, and the mostly familiar characters have all the facial expressiveness of Easter Island statues.

There’s an interesting aspect to the Allman Brother’s recent suit against Universal. (Here’s the story from Billboard; link via the Daily Swarm.) The front line in royalty disputes in the digital age is whether processes like streaming or selling a song digitally are equivalent to a traditional sale (on which the royalty rate might be roughly ten percent of wholesale) or a traditional licensing (say, for a movie soundtrack, where the label and artist might split the one-time proceeds equally).

Here’s how Billboard describes the sticking point in the Allmans’ suit:

The lawsuit, filed in Manhattan federal court, said UMG [Universal Music Group, which bought up Polygram, which distributed Phil Walden’s Capricorn] “refuses to pay Plaintiffs at the correct royalty rate for its digital exploitation of the Capricorn Masters,” including from compact discs, digital downloads and ringtones.

The agreement dated back to a 1985 agreement between the band and Polygram, which Universal bought, that said the band would be paid half of profits from the sale of records by third parties such as Apple’s iTunes or any other commercial usage not specified in the agreement, the lawsuit said.

The story is somewhat unclear—there was no iTunes in 1985. The story also says part of the suit is about CD sales, which were already around in 1985, so it’s difficult to believe the dispute is about the royalty rate on those. And, finally, the story could just be a poor encapsulation of standard industry boilerplate. But as written it looks like the band had the prescience to sign a contract, way back then, that gave them a clear claim of a 50 percent share of, in effect, new media exploitation.

Reuters is now pushing, and Drudge is agreeably linking to, a story discussing Robert Downey Jr.’s “risky” blackface role in the new Ben Stiller movie. Since his role in the movie is a buffoonish actor who adopts the blackface—i.e., he’s not playing the role in blackface, as if he were black—the riskiness factor is exactly nil. It’s just the DreamWorks publicity machine working hard against some mixed early reviews, like this one from Variety:

A smart-alecky sendup of Hollywood in general and action films in particular, “Tropic Thunder” undeniably provokes quite a few laughs, but of the most hollow kind. Ben Stiller’s star-laden farce makes every effort to be outrageous as it pokes knowing fun at a troupe of spoiled, self-centered actors who get more than they bargained for making a “Rambo”-like rescue drama in Southeast Asia. Apart from startling, out-there comic turns by Robert Downey Jr. and Tom Cruise, however, the antics here are pretty thin, redundant and one-note.

It turns out he wasn’t just dodging the Edwards story in his role as the nation’s most powerful press critic. He was held back by nameless powerbrokers—the ones who take home the big bucks to decide such matters:

As the political fallout came to be openly debated in the North Carolina papers, I pursued the matter with my colleague Lois Romano and was struck by Edwards’s refusal to talk about whether he had a relationship with Rielle Hunter, his former campaign aide, or to even issue a statement. Edwards’s actions did not seem to be those of a man with nothing to hide. I came to believe that we should publish a story. But I don’t get paid to make those decisions.

But … doesn’t he get paid to write about the issues those mysterious folks decide? They’re called news editors. Media critics cover them! (”I came to believe that Jayson Blair was writing stories that simply weren’t true and that they should not have been published. But I don’t get paid to make those decisions.”)

One of the reasons I distrust Kurtz is not exactly that he’s not rigorous in his thinking … it’s that he’s not rigorous when it suits him not to be. There are two issues here: Whether the Post should have covered the Edwards story … and whether its press critic should have looked at the issue of the mainstream press noncoverage. (As I wrote several days ago, the silence of Kurtz and Tim Rutten at the LAT, not to mention the various folks at the NYT who write media criticism, notably David Carr, is a story in itself, particularly when you consider some of the trivialities often examined in the modern world of media reporting.)

In his latest “Media Notes” column, Kurtz addresses … dodges the issue. Press critics have a tough row to hoe. In theory, they should be slightly separate from the operation they work for; when they time comes they need to be able to take a step back and treat their own institutions with dispassion. (I know from experience it sometimes involved getting the cold shoulder from—or getting yelled at by—one’s bosses.) Kurtz is hopelessly compromised in any case. As a prominent figure at both the Post and CNN, via his weekly media show, Reliable Sources, it’s hard to trust his writing on any national newspaper (competitors of the Post) or the cable news channels (competitors of CNN); now we can see he can’t even do basic coverage of issues involving his employers.

With the cable channels endlessly interested in all sorts of tawdry nonstories it’s hard to believe they were living up to some moral standard by covering up the delectably rococo Edwards story. Beyond that its political ramifications were plain—that a presidential candidate had cheated on a cancer-stricken wife is a story whether he was in the campaign any more or not.

To me, only the most obvious public interest these stories have is the politician’s susceptibility to blackmail; you could argue that, say, Bill Clinton might have been somewhat protected from this because it would barely tarnish his already compromised reputation, but Edwards, particularly, since he campaigned as a family man and had made political appearances based on his wife’s illness, was certainly vulnerable.

And in both case, the cover-ups—utterly desperate and feckless—show to what extremes the politicians would go to not let the truth out. Any honest media observer would at least air these matters as a counterbalance to the timidity of the mainstream media. Kurtz didn’t.

He did, however, have time to pat himself on the back for an entirely spurious observance he made of Hunter’s videos at the beginning of the campaign, some 18 months ago:

One small irony: Early last year, I wrote a column about the behind-the-scenes video that Hunter produced for Edwards’s presidential run, a self-absorbed episode in which he said he would campaign “based on who I really am, not based on some plastic Ken doll.” After watching the smooth-talking candidate preen for the camera, I questioned whether he was engaged in “carefully choreographed candor.” I didn’t know how right I was.

And on his CNN show, in a burst of esprit de l’escalier:

Right. Well, here’s my two cents.

I mean, news organizations were clinging to a very important standard: Don’t run allegations that you can’t prove. But it became a ludicrous situation.

It was all over the North Carolina press in the past week, over the Internet, radio, FOX News. And there was the politics that we just talked about, the question about Edwards speaking at the Democratic convention. It almost became a conspiracy of silence by the media.

And Edwards, meanwhile, would not give interviews. He was not acting like a man who didn’t have something to hide.

I think at that point we should have earlier than we did told readers, told viewers what we knew and what we didn’t know.

p.s. No one on his show or in his column talked about how the affair damaged again the big media’s reputation. And Kurtz and his cohorts—including the NYT’s Carr—did not discuss the internal discussions they had in their respective newsrooms. I don’t mean they should have revealed the internal comments people made. But they should have identified the person in charge who did make the decision, and get them on the record saying why, and then gotten a quote from someone like Slate’s Mickey Kaus, who had followed the story for some time, explaining why that decision was incorrect.

p.p.s.  David Carr glancingly brings up the Ick Factor:

I think there is also a thing with John Edwards where people didn’t really want to believe that about him, didn’t want to believe the circumstances, and stayed away from it.

———–

Previously in Hitsville:

John Edwards: Now it’s a story—And Howard Kurtz is on it!
The John Edwards missed-story list grows!
The John Edwards story: Down the media rabbit hole

Howard Kurtz is punished by being put on the Rielle Hunter beat. A cruel god will keep him there forever. No story on how the media ducked the story, however! And shouldn’t he take a good hard look at why he, Howard Kurtz, didn’t do a story about how media critics like him didn’t do a story about why media critics like him didn’t do a story on that failure? This brings the number of the potential stories the media avoided during the Edwards news blackout to six!

Hitsville is traveling and may or may not get to see Reliable Sources this a.m.; if Kurtz does take a look at the Edwards imbroglio, will he address this separate issue: How media critics refused to do stories about the noncoverage?

———–

Previously in Hitsville:

The John Edwards missed-story list grows!
The John Edwards story: Down the media rabbit hole

Saul Hansell, in the NYT Bits blog says Microsoft still has its search problem since it lost out on its bid for Yahoo. (The problem is that it hasn’t got any.)

According to Steve Ballmer, one asset Google has is that some searchers actually like the ads—and since Microsoft’s lagging search engine doesn’t have any advertisers, that’s yet another turn-off for potential converts.

Microsoft’s last gambit for perking up its search business is paying people to use it, through a program called Live Search Cashback. (How the process works is delineated here, somewhat confusingly.)

Here’s the company’s next line of attack:

Mr. Ballmer described Microsoft as facing a Catch-22 in this area. Advertisers are not interested in Microsoft search if it does not have users. But what can it do, if it believes that users won’t search if it doesn’t have enough ads?
[…]
Mr. Ballmer said that the company was working diligently on narrowing the advertising gap.

We may have to get kind of way out of the box in order to get back in the box. The most important thing right now is to make sure we work on the relevance of those ads, and the team is exploring two or three, actually, different concepts to get there. But, I don’t choose to chat about it today.

I wouldn’t be surprised if Microsoft wants to subsidize advertisers or even pay them to place ads on its site (just as it is paying people to search).

I’ve emphasized Hansell’s last words on the subject. Does this seem right? Can the company pay advertisers to advertise, and at the same time pay customers to patronize? I understand that it’s all designed as a way to try to create a critical mass for the search product, and further that this was just the writer’s speculation. But wouldn’t it be better if the company just bought the advertisers’ products and handed them over to consumers gratis? That way the companies wouldn’t have to spend money advertising, and the customers wouldn’t have to waste time searching, and Microsoft could spend its time making its operating systems less susceptible to viruses.

The NYT looks at the Girl Talk phenom. If you’ll recall, Girl Talk is Gregg Gillis, who constructs sound collages almost entirely based on snippets from mostly popular songs. He says it’s fair use, but he and his record company are both aware of the legal diciness of what they are purveying and have taken steps coherent and incoherent to minimize their liability.

Hitsville thinks what sane people do—that the nation’s copyright laws have been hijacked by Big Content—but also thinks that Girl Talk is something of a sham, for reasons detailed here. I don’t think the lengthy borrowings he makes qualify as fair use; while not every sample is used this way, a lot are.

Take “Pump It Up”—the most distinctive and forceful parts of the songs are clips from “My Humps,” “Carry On Wayward Son” and “Tears of a Clown,” and in each case the fun comes not from his purposeful de- and then re-contextualization of a parts of a song, but rather … the fact that he’s using the whole damn “Clown” riff.

Most fair people when listening to the Girl Talk tracks would concede that a lot of their force or enjoyment lays in the hooks or dynamics of the originals.

In other words, while he sometimes offers a transformative force in the collages, a lot of the time he doesn’t.

From the NYT:

Fair use has become important to the thinking of legal scholars, sometimes called the “copyleft,” who argue that copyright law has grown so restrictive that it impedes creativity. And it has become enough of an issue that Mr. Gillis’s congressman, Representative Mike Doyle, Democrat of Pennsylvania, spoke on his behalf during a hearing on the future of radio.

“You have to look at the length of those samples,” Mr. Doyle said in a phone interview. “Case law gets built as cases are brought to court, and I think that more case law is going to fall on his side as this becomes more mainstream.”

Not all lawyers agree. “Fair use is a means to allow people to comment on a pre-existing work, not a means to allow someone to take a pre-existing work and recreate it into their own work,” said Barry Slotnick, head of the intellectual property litigation group at the law firm Loeb & Loeb. “What you can’t do is substitute someone else’s creativity for your own.”

————-

Previously in Hitsville:

Girl Talk: Walking a legal thin line

Some perceptive comments on the item here.

I can think now of five separate angles the mainstream news outlets are missing with the John Edwards/Rielle Hunter scandal story. In other words, by not writing about the charges originally—airing them out and letting their audience assess their validity—the media is now in the position of stamping down not one story, but five. What tangled webs we are weaving!

Once the story hits the front pages, as it inevitably will, we’re going to hear all the excuses as to why reputable news outlets couldn’t find their way to telling their readers patently interesting news about a major political figure that was widely available on the web. This arrogance will help reinforce the perceptions in the audience that the media is not always looking out for their best interests and continue the move to alternative outlets. I’m as devoted a follower of the traditional media as can be, but this willful non-disclosure makes me want to scream.

As yet, the cable channels have been somewhat shielded from this; it’s too bad there’s not a growing web-only political talk show that has been tracking this. (I can’t find any mentions of it on  bloggingheads.tv via its search box, but I don’t know how reliable the search engine is.)

Here are the stories, with the various points to hit in each included:

1) The National Enquirer’s creepy vendetta. How the tabloids work … the difference among the Enquirer, the Examiner and the Weekly World News … the Enquirer’s history of accuracy or inaccuracy … the logistics and costs of such a months-long effort … who owns it? … who calls the shots?

2) Why the mainstream press has dodged the story. The backstage timidity … the concern for Elizabeth Edwards … the Ick Factor … the inconsistency of whose adulterous affairs get written about and whose do not.

3) The silence of the lambs: Not anything you wouldn’t expect, but it’s worth noting that the the nation’s press critics and ombudsmen are quiet, too. Howie Kurtz, this is tailor made for you: Only you can investigate why you haven’t written this story! The one exception I know of is Jack Shafer in Slate, which has gone at the story several ways. But where is Tim Rutten? The Observer? Even Salon has offered only one tepid account of the Enquirer story. Which brings us to …

4) The compromised intellectual honesty of the liberal blogosphere. Kausfiles is linking to a Daily Kos regular who got his posting privileges disappeared after he started writing about the issue:

I’ve been posting at Kos for a long time. As more news about Edwards has come out, I followed up with more posts which were also the subject of a large number of comments. All of them looked at the Edwards situation from my point of view; that is, a liberal who is concerned about the implications this story may have in November.

Now I’m banned. I can’t write about ANYTHING at Kos. Can’t comment, can’t post a non-Edwards piece. Nothing.

Don’t we all agree that you get the facts out, then fight about what should be done or what it all means? Wait, we don’t?

I thought I had five different ideas. I’m missing one…

5) Oh, yeah: Did John Edwards cheat on his wife and get another woman pregnant? Edwards hasn’t substantively addressed the Enquirer’s charges.* The most recent debacle, according to both the tabloid and a corroborating story by foxnews.com, found him blockaded in a basement bathroom of the Beverly Hill luxury hotel in the early morning hours after he was caught by the Enquirer reporters allegedly paying Rielle Hunter and the infant in question a visit. Arguments about the Edwards’ privacy don’t hold water: Elizabeth already knows about it; Edwards was a presidential candidate; and the story is already out there. All the mainstream news outlets are doing by not writing about it is undermining their credibility.

In the meantime, Kausfiles is a good place to check for updates, as is Deceiver.

* In the post-Lewinsky Era, the cheating pol can no longer make a denial and then run off stage. The press needs to ask detailed questions to make sure he’s not, uh, isn’t lying like a dog. If Edwards doesn’t like that standard, he could call up Bill Clinton and complain to him about it!

Many years ago, there was a big label called RCA, which was part of the RCA conglomerate, which also owned NBC; one of its biggest competitors was Columbia Records, which was part of the CBS conglomerate, which owned CBS the TV network.

As the industry consolidated in the 1980s and 1990s, RCA eventually got bought by GE, CBS by Sony. The networks and labels were pushed around and passed around like the wimpy kids at a schoolyard basketball game. RCA, home of Elvis, ended up bought by the Bertelsman Group, a German conglomerate.

As the 2000s proceeded and sales of CDs dropped and dropped again, the industry reconsolidated and consolidated some more. BMG and Sony merged their music units, creating Sony BMG; Universal reigned, with about 30 percent of the market, and as for the other former majors, well, everyone is still waiting for Warner and EMI to conclude its laborious courting and merge as well.

That will leave three labels—Universal, Sony, and Warner EMI—dividing some 80 or 85 percent of the industry, with the rest covered by what indies remain.

Anyway, the joint Sony-BMG venture ended today, with Sony buying out Bertelsman at a price that values the combined company at about $1.8 billion, according to the NY Times, and completing RCA’s debauching.

Wall St. Journal story ($) is here.

Why Sony would want the whole label is a mystery. The WSJ says this:

Sony has strategic reasons to double down in the industry.

Mobile-telephone companies, eager to differentiate themselves from competitors, have been striking licensing deals with music companies that could prove lucrative in the future. Sony BMG recently reached such an agreement with Nokia. Sony itself is a partner in Sony Ericsson, a mobile phone venture, and would like in the future to strike deals that benefit more of its divisions.

The acquisition also gives Sony a close relationship with the company that produces American Idol and other television shows that have been critical in creating new music stars.

Sony is also trying to tie together its consumer electronics business with entertainment content, through its PlayStation Network that lets gamers play each other. Its Bravia televisions can also download movies; Sony’s own “Hancock” is to be the first movie offered under that model. Sony has had difficulty launching a music download service. Earlier this year Sony closed down Sony Connect, a would-be iTunes competitor that included a line of portable music players and an online store.

Sony presumably has its reasons, but note that after “mobile phone deals” the rationales get pretty thin pretty fast.  And the back-end savings of the merger have presumably already been realized.

The New York Times dug even farther into Steven Spielberg’s pants today, with a feature by Michael Cieply about Tropic Thunder, a new Ben Stiller movie from DreamWorks. It’s a “parting gift” from DreamWorks to its owner Paramount, we’re told.

The feature, the lede story in the arts section, is a case study in how a mainstream piece of journalism can be working a not-so-subtle agenda for one side in a dispute. Consider this passage about the film’s prospects, right after the stuff about the “parting gift”:

The movie clearly has hit potential. Directed by Mr. Stiller, it has an ensemble cast also including Jack Black, Matthew McConaughey, Steve Coogan and Nick Nolte, not to mention Tom Cruise, in a raucous cameo as a vulgar studio chief.

But Paramount executives also face the delicate task of selling what may be the raunchiest comedy yet in a summer that has seen more than its share. […]

If they fall short, a production budget of about $90 million and tens of millions of dollars in marketing money are at risk. A soft performance would also compound the embarrassment of “The Love Guru,” the Mike Myers raunchfest that flopped when Paramount released it in June.

In other words, DreamWorks has handed Paramount a sure hit, which the studio may screw up, just as it did The Love Guru … and if it does… it’s an embarrassment for Paramount.

This seems crazily biased to me. Why does DreamWorks get credit for doing a Ben Stiller movie in the first place? Night at the Museum made nearly $600 million worldwide; isn’t Stiller doing DreamWorks, a failed studio, the favor? And if it’s a flop, wouldn’t that mean the thing wasn’t that much of a gift in the first place?

And since when is it such a delicate task to sell a raunchy movie? Ben Stiller has been the star of the most lucrative of all of them, after everything from There’s Something About Mary to the Meet the Parents movies.

Leaving aside the Spielbergophilia in the Paramount contretemps (see my previous entries on the subject here and here) this “it’s rauchy and risky!” meme is the more journalistically insidious.

I want to make clear, Cieply is a serious guy and the Times coverage of Hollywood is in the main serious as well. But by playing the angle up, Cieply is plainly furthering the PR plans of the studio for the film, as he has been during the whole Paramount/D’Works dustup.

It’s hard to read the story and not laugh:

[DreamWorks exec Stacey] Ms. Snider acknowledged the risks inherent in the film. It is the first from DreamWorks, she said, to use a so-called red band trailer, which attempts to limit access to online viewers 17 or older. (Visitors to tropicthunder.com can view it only after clicking on “Restricted” and entering name, ZIP code and birth date.)

Note how now Snider is agreeably “acknowledging the risks” of a movie that isn’t risky—as opposed to, say…

“… unpersuasively trying to promote the idea that it is unusual or risky to produce a raunchy Ben Stiller movie,”

or …

“… gamely trying to put the best face on the once-high-minded DreamWorks’ latest indignity, the release of a lowbrow Ben Stiller comedy in an attempt to give her, Spielberg and Geffen a bit more leverage as they try to extract themselves from their ill-advised sale of DreamWorks to Paramount.”

And further, we have the bit about the trailer, reported with complete credulity—a transparent ploy to make the R-rated movie seem naughty and appeal to kids (any of whom over the age of say, six, can easy type in a fake age to see the trailer).

The writer also makes it seem as if that’s the only place to see a trailer for the film, when of course there’s also the usual un-red-banded version on all the usual trailer sites. A more honest assessment of the strategy might be: “… and to play up the film’s raunchy appeal, the company is hosting an oh-so-naughty ‘red-banded’ trailer on its site, compete with an access restriction any eleven-year-old can navigate with alacrity.”

And to complete the PR bonanza for the company he even finds a little web site that is complaining about the use of the word “retard” in the film—another suspiciously synergistic bit of manufactured controversy for a marketing effort that apparently has the machines running full time.

___________

Previously in Hitsville:

St. Steven Spielberg
Return to “The Spielberg Zone”
Indiana Jones Agonistes
Scary Steven Spielberg!