Will Bands Still Hold Daytrotter Deer Or Hoof It?
This week, the indie music world blew up with news that the band Deerhoof was aiming their horns and charging squarely at local and national music site Daytrotter.
According to various sites and magazines, including Pitchfork and Spin, Deerhoof are ticked that Daytrotter released an LP of a session they did eight years ago. They claim they did not give permission for the session to be released. They also claim they weren’t paid for the LP nor did they receive royalties, and likewise, that their work for the site was placed behind a paywall for which they likewise received no royalties.
Daytrotter, and their parent company, Wolfgang’s Vault, seem to maintain that Deerhoof did indeed give permission, and that permission was through a signed contract to record with the site.
But did they? THAT’S the key question.
If Deerhoof signed a contract without reading it, or going over it in detail, and that contract said that Daytrotter could do exactly what it did – put Deerhoof’s session behind a paywall and release it on vinyl without distributing royalties or involving the band in its release – then that’s a costly lesson for the band to make sure they have a lawyer or agent read over their contracts in the future. It sucks, and it’s lame of DT to not even give the band a royalty on a release, as any label would, but it’s legal. And as it goes in the world, unfortunately, what is legal is not always in line with what is right.
BUT… if there was no such contract signed, and nothing written that stipulated that Daytrotter could do what it did, then it’s dark water both legally and ethically, and Deerhoof could, with a good lawyer, sue and win for compensation and damages. And if they do, it’s really going to inflict some serious damage on Daytrotter, especially as other artists come forward to do the same thing.
So, what exactly happened?
It really comes down to that one huge question: Was a contract signed or not, and did that contract stipulate what happened as permitted?
I think we’ve got ample statements from Deerhoof to draw from, and one of them is attached to the end of this column. They’re vague on whether an agreement was signed, but direct in their dissatisfaction with what occurred.
What’s Daytrotter’s side?
Here is the exact exchange between me and Daytrotter representatives, verbatim:
Me: Was everything Daytrotter did authorized and Deerhoof just didn’t read the contract they signed? I’m assuming they signed a contract, yes?
Daytrotter: This is Daytrotter’s statement. Same one that was sent to Pitchfork Magazine.
“Over the last eleven years, Daytrotter has recorded more than 7,000 bands and 32,000 songs in Daytrotter sessions. Daytrotter has had a membership model for 8 and a half years. The price of the monthly membership is used to keep our studio open and cover our costs. Daytrotter has never in its history been profitable. Daytrotter sincerely appreciates all of the artists that it has had the opportunity to work with, and looks forward to continuing to having artists from all over the world coming to Daytrotter’s well known studios to produce great music and share this music with everyone. Deerhoof recorded its session 8 years ago and there was an agreement between Sean Moeller, the founder of Daytrotter, and Deerhoof in regards to releasing their Daytrotter session and vinyl. The current Daytrotter team looks forward to continuing to record and promote bands for years to come.”
That’s sort of an answer. An agreement is not the same as a contract. Could be, might not be.
So, I contacted Sean Moeller, who is a buddy of mine, and a good guy. I tried calling but couldn’t get ahold of him, so I texted him and sent the exact same question. He had no official comment on the situation and said he wanted to avoid the noise being created. Fair enough. He hasn’t been with DT for more than a year, and their parting was not especially sunny.
So we get down to a number of important questions and things to take from this situation moving forward, as it will impact both parties involved and send ripples through the industry.
The biggest question is whether or not this is a legal issue or an ethical one – and yes, there is a difference, unfortunately, as the law and ethics don’t always coincide. And that’s also the question for bands going forward who are thinking of recording with Daytrotter.
Deerhoof seemed to recognize that, as their twitter statement was entitled “for the benefit of of musicians who have recorded, or are considering recording, a session for DAYTROTTER.”
In looking at the controversy, it certainly seems as if there is that gray area between the legal and ethical. And it’s to the credit of the members of Deerhoof that they seem to likewise recognize that in their wording of their complaints. In reading them, they seem carefully crafted to recognize that this is a cautionary tale that they may not benefit from, but that they want other artists to be aware of, and that’s fair.
Legally, it appears, APPEARS, based on the information released, that Daytrotter was likely within their right to issue the album and put the session behind a paywall. According to other musicians who have recorded for Daytrotter, who asked not to be identified, when they’ve recorded sessions for DT they have had to sign a written release. Some of them said they didn’t really read it. Others said they did and it basically stipulated that DT could use the material as they saw fit in the future. Again, these musicians did not want to be identified in this column because they didn’t want to catch heat from either side. But, that’s what they said, take it as you will.
I have not perused the contract Deerhoof signed, if one indeed exists, but a corporate entity – and Daytrotter, owned by Wolfgang’s Vault, is a corporate entity, no matter the length of the executives’ beards — does not typically leave their ass uncovered in regard to matters of this nature. I would be very surprised if there’s nothing in the contract Deerhoof signed that gives Daytrotter permission to do exactly what they did. And if there wasn’t at the time, Wolfgang’s attorneys, if they were/are smart, would’ve sent them a follow-up agreement to stipulate it. Otherwise they’re overpaid and undersmart and will ultimately be boned in court on this.
If there isn’t anything in the Daytrotter contract that stipulates permission for the release of the album and the session behind a paywall, then Deerhoof’s attorneys will find it and Daytrotter will be busted, not just by them, but likely by every other artist with whom they’ve done the same thing. And a lot of checks will be issued to a lot of musicians.
Legal comes down to whether or not something was stipulated in a contract that was signed, and when a contract is signed, it is assumed that the person signing actually read the contract. At least, that’s what they’re supposed to do.
But, BUT… that doesn’t make it right. It may make it legal, but it doesn’t make it RIGHT.
For decades, the music business has had a vicious history of cheating artists of profits from their work. This is nothing new to anyone with even the most cursory knowledge of the business. Which is why if you are a musician it is very, very important to look over your contracts and if you don’t understand them, to hire a lawyer to do so.
Maybe that wasn’t the case with Deerhoof. Maybe there wasn’t a contract. Maybe they had a verbal agreement. Maybe . . . but who knows? Both sides are vague enough that we won’t find out the real deal until this potentially goes to court.
But one thing is for sure: This is going to have an impact on Daytrotter, and not a good one, but one that’s got to be addressed going forward.
Artists have a right to know what they’re signing. They have a right to know what agreement they’re entering into with a corporate entity. Has Daytrotter been too vague with artists, or have they misled them? Deerhoof is either accusing them of one or the other.
But after this controversy, it shouldn’t be the case with other artists. And that’s the good to come out of this, for both artists and, while they may not think so, for Daytrotter. The cards are on the table now. Artists are going to go into sessions with DT fully informed of this, and they should be, and likewise they should go into those sessions either ready to negotiate terms or to knowingly agree with the terms set in place by DT.
How much does this really hurt Deerhoof? Not much, to be honest, and in fact it may end up being a very good thing for them in the big picture. It’s more of a creative hit than a financial one. The royalties on a vinyl album released by a niche website aren’t going to break the bank. They may not own the copyright to that particular performance, but this is similar to so many other cases involving bootlegged performances, that are often ignored by artists because there’s not much in terms of monetary damages to be pursued. Even if there is a case, and they win the case, they’ll probably make back just enough to pay their attorneys. They aren’t going to be out pricing Rolls Royces. From a creative standpoint, yes, it sucks. It sucks to have other people have creative control over your work and to release it as they see fit. This is something I, as a writer and creator, understand quite well. I’ve had publishers hack up my work or give my books lame covers and packaging without my consent or market it in ways I haven’t liked, so, yeah, I understand that aspect of it. It sucks.
But Deerhoof is also emerging from this as heroes on the indie scene, for standing up for artists. And that cache is particularly valuable in a scene that so prizes independence and integrity. The exposure they’re getting in this disagreement is definitely a plus for them, one that likely heavily outweighs the meager royalties they would’ve gotten from Daytrotter.
How much is this going to hurt Daytrotter? Potentially quite a bit. Are there other artists out there who are as irritated as Deerhoof? Probably. Are there artists out there who read the contract and were fine with it? Probably. Are there artists out there that don’t care either way and are just happy to be getting exposure from the site? Probably as well.
And of course this all assumes there was a contract.
If there wasn’t, forget about it. Daytrotter is going to get hit, hard.
Only time will tell how much this hurts the site. In all likelihood it won’t kill it. There are going to be up-and-coming bands who aren’t going to care and are going to go all in for the exposure. That’s the way it goes. But there are also going to be other bands, more likely than not the established ones, that might pass.
But the important thing is that all involved – bands and Daytrotter – know what the score is going in. Daytrotter needs to be as up front and transparent as possible and artists need to be diligent in understanding agreements before entering into them regarding their creations.
Given the vague nature of things at this point, and the unknowns involved, it’s hard to see how this is going to end.
But in the end, one thing is clear: It’s going to be a cautionary tale for both artists and Daytrotter, and that will be its coda.
