The Daily Show Wants Musicians To Work For Free

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Hey Jon Stewart, remember when you were a struggling comedian working the clubs of NYC? Remember when that famous comic (insert name here) came up to you after one of your shows and said “Hey kid, you’re real funny. I have a deal for you, how about you write jokes for me that I can use at my upcoming shows. I get to use these jokes however I please. I’m not, of course going to credit you. Oh and you’re not getting paid. But hey, you get the satisfaction that you wrote jokes for me! How bout it?”

Seems absurd right? No comic in their right mind would take this deal. But for some reason the producers at The Daily Show Without Jon Stewart podcast thought it would be a good idea to trick musicians into taking this exact same kind of deal. They thought they could get enough naive, desperate musicians to submit their original take of the The Daily Show theme song to use at the end of the podcast episodes.

Well, unfortunately, they were right. For 7 episodes they have been using musicians’ works without compensation (or much credit). As the terms of service on the submission form state:

“I agree that I will not be entitled to any compensation or any other consideration…”

The Daily Show Without Jon Stewart podcast series began last August and they have been promoting this “contest” on nearly every episode ever since.

Now, I get it, they could just use the standard theme as outro music (as they do for the intros). I know, they think they’re helping their independent, struggling musician listening audience out by giving them a chance. Aw shucks.

So why not ACTUALLY give them a chance? Give them a serious incentive! Why not, ask musicians to arrange the outro music and then choose one artist to fly out to NYC to perform on The Daily Show. Now THAT is a contest I would sign up for. This is what NPR’s Tiny Desk Concert did. Sure, you can still feature some of your favorites every week as an added bonus – leading up to the actual announcement.

What irks me most is the podcast’s producers and hosts think that they are actually helping musicians. I listened to a few of these podcasts and the hosts zip through the musician’s name (when they actually say it) so quickly that it’s nearly impossible to catch and even if you did catch it good luck remembering the name or figuring out how to spell it. There are no links in the Podcast app (how most listen to these episodes). They do, however, include one link on the Daily Show podcast website to the artist’s original song on SoundCloud, but taking a quick glimpse at the “winners” SoundCloud profiles, it seems no actual human listeners click this link as none of the “winning” musicians have gained many followers (the very first “winner” from the 2nd episode back in September 2014 has a whomping 11 SoundCloud followers – really great exposure guys!).

And, for you music biz nuts out there wondering if these artists would get paid in royalties. The answer is no. Because it’s not an original composition, the PROs and Harry Fox have nothing to do with this. And because it’s not a digital radio station, SoundExchange has nothing to do with this. Because the only thing the artists technically own is the sound recording (not the composition), there are no legal royalties owed to them through public performance. Technically the only way the artist could get paid is by negotiating the license fee (which the terms of this contract state are non-negotiable. And payment is zero).

If you actually are in need of some great outro music, then why not run this contest and pay the winners! It doesn’t have to be much. Say, $2,000. Oh, you think that’s high? You probably don’t realize how many hours went into the creation of the 30 second outro. Or how much the recording program costs. Or the midi keyboard they used to compose on. Or the microphones, outboard gear, audio interface, guitars, or plugins. How about the years of study and rehearsal? Music lessons. College tuition. Studio space. The list is endless. You don’t have this money to pay? Really? One of the biggest cable TV shows of the last decade doesn’t have a couple thousand a month to pay musicians? Or Jon, how about write some fellow artists a check yourself? We know you could afford this. To Jon’s credit, he doesn’t seem to have much to do with this podcast. After all it is called “The Daily Show Without Jon Stewart.”

+Open Letter To Oprah, Whose ‘The Life You Want Tour’ Asked Me To Work For Free…

I don’t hate you Daily Show producers and correspondents. I love you. I watch your show online every morning over oatmeal, hard boiled eggs and coffee. It’s my morning ritual. But just like you tell Obama, Hillary, McConnell, Pelosi, Boehner, CNBC, Fox, CNN, MSNBC, Anti-vaccinators, climate-change deniers, Medicare Republicans, Wayne The-Only-Thing-That-Stops-A-Bad-Guy-With-A-Gun-Is-A-Good-Guy-With-A-Gun Lapierre when they done f*cked up. I’m now telling you. You done f*cked up this time.

Ari Herstand is a Los Angeles based singer/songwriter and the creator of the music biz advice blog Ari’s Take. Follow him on Twitter: @aristake

38 Responses

  1. JC

    Sadly Ari, your whole premise is wrong. John Stewart famously wrote jokes for no money for other comics and for very little money as well to get his foot in the door. As did Louis CK. He talks about it on a recent episode of WTF.

    Also this is the stupidest smugly written post I have written in a long time. You sound real proud of yourself you figured out how to take this bold stand. Even Gawker isn’t this smug.

    Reply
    • ThomasH

      Untrue. But even if it were, that doesn’t make it right does it? Sure I guess anyone is free to enter any contest they desire and if they want to do it for the shits then cool, but don’t you think the daily show should do a bit more to promote these artists? They have such a big platform. Don’t pay them, fine. But do something for exposure. I like Ari’s idea of a contest to get them to perform on the show.

      YOu have to weigh exposure vs. payment: Low payment / High exposure or Low exposure / High payment. It can’t be low (no) payment AND low exposure. That doesn’t equate.

      Reply
  2. jw

    Oh c’mon, Ari. This is gratuitous. Some people may actually want to do something for the podcast & maybe they’re just happy to hear their version on the show. Ain’t no need to rain on that parade. Not everything has to be a stepping stone or a meal ticket. Chances are, someone who has time to sit down & compose a cover of a 30 second theme song isn’t doing so to fund his or her next Subway footlong. I doubt the podcast (like most podcasts) is a money maker, anyhow. (I say this having never listened to the podcast. That said, $2,000 comes across as ABSURD.)

    I didn’t expect to get paid when Teenage Mutant Ninja Turtle Magazine published my fan art. Magazines & podcasts & radio shows & tv shows ask for fan submissions on all sorts of things, & they rarely get paid for it. You don’t get paid for calling into a morning radio show & offering a joke. But when it’s music, all of the sudden Harry Fox & ASCAP & yadda yadda & where’s my paycheck? Like it’s backbreaking work… this type of article just makes artists look like they lack any kind of perspective. It’s not even as if Daily Show producers are cold calling artists, asking for free work. Or even asking for an original composition. It’s just… do it if you wanna.

    I don’t expect to get paid for my DMN comments. But maybe I should write an article about it & see what happens. I mean, jesus christ… this macbook pro cost me thousands of dollars! Surely I deserve some compensation. Thoughtful comments don’t grow on trees, you know. Maybe what we really need is an agency that collects money for commenters.

    Reply
    • GGG

      “I don’t expect to get paid for my DMN comments. But maybe I should write an article about it & see what happens. I mean, jesus christ… this macbook pro cost me thousands of dollars! Surely I deserve some compensation. Thoughtful comments don’t grow on trees, you know. Maybe what we really need is an agency that collects money for commenters.”

      Haha, while I probably disagree with most of the first 2/3rds of your post, I actually part-jokingly (but only part) posted something similar to this last paragraph after Paul explicitly cited commenters/community as crucial to the growth and success of DMN. So I’m also wondering where our checks are. We should be entitled to ad share, since I’m sure many people come back to see our bitchfests with Fareplay and Justin, etc haha.

      Reply
  3. Ari sucks

    Ari – you forgot the entire quote “I agree that I will not be entitled to any compensation or any other consideration because of the use of any such similar or identical Materials that may have been independently created by Producer or come from any other independent source, whether before or after the date of this Agreement.”

    Let me spell this out for you:
    “I agree that I will not be entitled to any compensation or any other consideration ” – I agree I will not be entitled to any monetary or any other form of compensation

    “because of the use of any such similar or identical Materials that may have been independently created” – for the use of any derivatives of any materials based on my composition that have been independently created

    “by Producer or come from any other independent source, whether before or after the date of this Agreement.” – by the producer or any independent source that represents the producer before or after the date of this agree

    What does this mean? You give the Daily Show the exclusive right to make derivatives. This mentions nothing about performance rights income – which the songwriter will get. Yes – the artist is granting TDS a gratis license to use there music on the show; however, your post is mis leading.

    Reply
    • Vail, CO

      “This mentions nothing about performance rights income – which the songwriter will get. ”

      WRONG.

      The songwriter is whoever wrote the Daily Show theme.

      Reply
      • Ari sucks correction VAIL CO IS A JABRONI

        Vail, CO see below.

        “(iii) the Materials are either original with me or have been fully cleared by me and that I have all rights to the Materials, and all components thereof, (including, but not limited to, the master recording rights and publishing rights with respect to any musical recordings), and that it has obtained all rights, consents and permissions, including but not limited to those of participating in the Materials, necessary to grant the rights granted herein.”

        This implies that the composition and master recording submitted is original – in order to submit “I have all rights to the Materials, and all components thereof, including, but not limited to, the master recording rights and publishing rights.” You can’t submit unless you have permission to create a derivative work or you own the composition and master.

        So if you submit an original composition – you get royalties for performance rights income.

        Go back to Vail Colorado you Jabroni!!!!!!

        Reply
        • Vail, CO

          “Artists submit their original take of the The Daily Show theme song to use at the end of the podcast episodes.”

          “Original take” is something based on the underlying composition of the Daily Show theme song. That publishing doesn’t belong to the artist.

          Reply
          • VAIL CO IS A JABRONI

            “Artists submit their original take of the The Daily Show theme song to use at the end of the podcast episodes.”

            An original take means that the composition is ORIGINAL. If they were asking for artists to create a derivative work, it wouldn’t be an original composition as you are implying. TDS is asking for artists to come up with their own original theme song influenced by the current TDS song. If they steal or rearrange the theme song, then they are infringing on copyright. If they can prove that their theme song is original, they own it.

            Here is an example: I was influenced by your stupid comment to do an original take of it – so I made my own reply back. I’m not stealing your comment, I am just making it more educated. By law – if it is original then I own it. If it was a derivative you own it – and therefore falling into your trap. As you pointed, “Artists submit their original take.” This by definition is saying that artists are submitting their own original version of the TDS theme song. If it is original, as the quote implies, it is copyrightable and you as the artist/composer own it.

            GO BACK TO VAIL YOU JABRONI!

          • Chris H

            It’s means you have the right to submit the materials i.e. your not in a record deal or otherwise have your services already spoken for. Has nothing to do with collecting performing rights.

            Go back home and read a book on the subject.

          • Chris H NEW JABRONI

            “It’s means you have the right to submit the materials i.e. your not in a record deal or otherwise have your services already spoken for. Has nothing to do with collecting performing rights.”

            Chris – performance rights has nothing to do with a record deal. As a songwriter, you are entitled to performance rights income income for public broadcasts of your works. A podcast would fall under this. So if you are affiliated with a performing rights society (ASCAP, BMI, SESAC) and your work is registered – you are entitled to performance rights income paid by the broadcaster to your performing rights society, which is paid to you.

            If you actually looked at the agreement, you will find that it states nothing about giving up your performance rights royalties. SOOOO – if you own the compositions, have it registered, you will receive royalties.

            I would suggest you read Donald Passman’s book “All You Need to Know About the Music Industry” or Steve Winogradsky’s publishing book.

            Go home Jabroni.

          • Correction Chris is a partial jabroni

            Also, you are partially correct, and I was partially wrong because I misread your statement.

            They are making sure that the music you submit can be used without them being sued by the copyright holder. If you submit an Original composition – you are giving them permission. If your work is a derivative – you are indemnifying them from any responsibility if the work is copyrighted by another party.

            However, as a songwriter you are entitled by law to performance rights income paid to you from your soceity. IF YOU OWN THE WORK – YOU GET A CHECK.

          • Chris H

            Wow thanks. I work in this part of the business every day for decades asshole. You MIGHT be entitled to the sound recording you create and can go bust a check with that (Your sound exchange amounts on a podcast are sure to be astounding) and perhaps you could make a claim that it is a derivative work, but that’s probably a long shot at best, since you would have to play the key elements of the theme (i.e. melody) and the work is not in the public domain, so you can’t copyright you own arrangement.

            But I’m sure you knew all that already.

          • Chris go home

            Chris here is what the Daily Show is asking: Quoted from TDS website: “We’d like you, our musically inclined listeners, to whip up your own take on The Daily Show theme song” http://thedailyshow.cc.com/podcast

            So the question here is what does “own take” mean – does it mean to create a derivative work or to create an original work INFLUENCED (NOT DERIVED) by the current theme song.

            Here is the definition of copyright: “original work of authorship fixed in a tangible means of expression” (Check the books I recommended).

            Here is the definition of a derivative work: “A ‘derivative work’ is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” http://www.law.cornell.edu/uscode/text/17/101

            Why does this matter:

            Well, if it is a an original work inspired by TDS theme song – then its copyrightable. If it is a derivative – its not. To test if it is a derivative, you have to test for substantial similarities. To test for substantial similarity you have to 1. prove access to the original composition and 2. prove substantial similarity (You forgot to add access in your definition). Substantial similarity is a subjective test which would require a musicologist analyzing melody, harmony, rhythm, words, etc.

            I’m arguing that what TDS is asking is for musicians to submit music to the podcast inspired by the current TDS theme song. You are arguing that I’m wrong. – but if its ORIGINAL then I’M RIGHT. YouR argument should be based on what TDS is asking for (which I think TDS is vague about).

            Bottom line: if an artist submits ORIGINAL material that they can prove is not a derivative of the TDS theme then they are entitled to royalties for the performing rights income.

          • Chris a super jabroni

            Chris you are not arguing the point. I’m arguing the definition of “your own take” and claiming that they want original works. I’m claiming that if a composition is original and submited it is therefore “an original work fixed in a tangible means of expression” not a derivative. Your argument should be based on what TDS is asking for. Your argument is based on a hypothetical composition submitted that is a derivative, not that TDS is asking for derivatives.

            Btw, you forgot to mention you have to prove access along with substantial similarity.

          • Chris H

            Ok, you win. Go for it, do what you THINK they are saying and let me know how that shakes out.

    • Telecat

      People die from exposure every year. Why would i do anything for exposure without money being involved?

      Reply
    • Remi Swierczek

      Absolutely, exposure, or stamped to LIVE grade musician. The only spot allowing for money from music!

      Reply
  4. Telecat

    Coming from an asshole who thinks Spotify is just peachy, this is pretty difficult to take seriously. Ari is a Spotify shill.

    Reply
  5. Anonymous

    Woah easy there fella, these people are just the same, all had to come up and go through the grinder, lets just pause for a moment, take a nice deep breath, and carefully read through the agreement and check the website out…

    It’s early and i am on my first cup of coffee, so forgive me if i am not understanding things properly, however, Am i missing something here?

    the Materials are either original with me or have been fully cleared by me …. and then…. obligations hereunder and that I have secured all consents necessary to enter into this Agreement; (iii) the Materials are either original with me or have been fully cleared by me and that I have all rights to the Materials, and all components thereof, (including, but not limited to, the master recording rights and publishing rights with respect to any musical recordings), and that it has obtained all rights, consents and permissions, including but not limited to those of participating in the Materials, necessary to grant the rights granted herein, (iv) t

    You are saying it’s not an original in your article and therefore are not obliged to get compensation or royalties, yet this paragraph from the agreement makes it sound like it could be original if you wanted and is up to the creator otherwise they wouldn’t be needing to ensure the publishing rights are good to go, furthermore, in searching the site for a moment, i see no score or beds that must be used, i see no composition that one must use to make an unoriginal theme song or cover theme, so either i am totally clueless, or i missed something when i quickly searched the site or, you have…

    and then there is this…

    I further understand and acknowledge that Producer and its respective successors, assignees and licensees may create, or have created, material and ideas which may be similar or identical to the Materials in theme, idea, or other respects. I agree that I will not be entitled to any compensation or any other consideration because of the use of any such similar or identical Materials that may have been independently created by Producer or come from any other independent source, whether before or after the date of this Agreement

    All this is saying is that if the Producers of the Daily Show happen to make something sounding identical or similar to the theme you submit, you will not be compensated for that identical usage, which in and of itself suggests you could be compensated for the use of your theme song if you wanted…

    It’s a wee bit greasy but usually due to the nature of the business, they are just trying to cover their butts, they also do obtain personality rights for nothing, but it is what it is and thats pretty normal for most people, i’ve seen significantly worse contracts for similar type contests… it’s a come uppins game and it takes a bit of thick skin and shady deals awhile before you have the power and leverage to negotiate out what you want… That being said, they only ask for the exclusive license to use it, many of these things take full ownership, Ari, bro, this is not a bad contract or screw job… Most of these networks, if airing to network, will submit cue sheets and pay royalties, even if wanting gratis licenses, these guys and girls all do the same thing, i think you are way overreacting here bud… A podcast posted to the internet using original music for a small portion is a peanuts license anyways bud…

    What i do not like about many people’s contracts, in many industries, is the sentence about once you sign their shortened contract, you are therefore agreeing and understanding to signing a longer agreement, which you haven’t conveniently seen yet, i think that’s something that needs to change…

    Ari, my man, the issue is with the musicians who continually whore themselves and give everything away, and possibly due to the spread of misinformation and the misreading of contracts, such as it seems you may have done here…

    I of course could very well be incorrect, perhaps there is some more information i am missing here, but everything i see seems you may have just missed something, its all good, happens all the time especially in the creative and passion endeavors, so no worries bro, all is good…

    Ari, you seem to be making some head-waves and progress, my man, if you need some law help, reading, understanding and negotiating, hit me up my man, ill cut you a solid deal…

    Reply
  6. 2PcDrtyRice

    have you wrote the same post about CNNs’ new policy? They say the same thing about stories submitted, yet they get paid off of advertising.Do you pay people who comment on your articles?,Or provide links to your article? Without the readers advertisers would not want to use this page..If it was not for Reddit I wouldn’t know you exist.I dont get this time back..efffing Reddit user let me down on this one..

    Reply
  7. ari krishna

    $2k is a ridiculous figure to throw out there and your deluded to think any podcast would drop that on an outro clip. Internet used music is notoriously low paid for most things. Now I agree they should be compensated doesnt mean they need to fork out to cvoer the musicians recording gear. The gears an investment which hopefully pays for itself over time, either way nobody owes you the cost of the gear you bought.

    Reply
    • Ari Herstand
      Ari Herstand

      Just FYI, Target recently used two of my songs as background music in their YouTube promo videos. I was paid $2,000 each. That’s where I got that number. It wasn’t for TV (which could be upwards of $40,000 for a commercial placement) and it wasn’t for a film trailer (which could be upwards of $80,000). Yes, internet pays very little, but, please remember this is a CORPORATION, this is not some dude broadcasting the podcast out of his garage. This isn’t a DIYer asking for fans support. In that case, sure, have fans help out and shower them with exposure, thanks and promo (for no money). No big deal. But, this podcast is run by The Daily Show, run by Viacom.

      For this spot there was:
      #1 very little promo, credit or thanks
      #2 no money
      #3 no connections made

      A corporation is taking advantage of young, inexperienced musicians. This is a slippery slope and a bad precedent. This is more about the principle. What kind of message is this sending to musicians?

      Reply
      • Anonymous

        Ari doesn’t care about his fellow musicians, he cares about stealing from them, since he’s a shill for Spotify.

        Reply
      • Anonymous

        Just FYI, Target recently used two of my songs as background music in their YouTube promo videos. I was paid $2,000 each.

        and without full details into the license negotiated, the videos in question, etc. etc., this means nothing…

        Reply
      • Kyle Williams

        In any case education is in order for musicians. How to distinguish opportunities that turn out results and making a decision based off that.

        But I do think there is excitement mixed with naivety UNLESS they understand that they are getting little but don’t care. If it were me I’d ask for them to promote my name and a link to an email optin form. That would be worth my time.

        Reply
        • Anonymous

          Hey man, gotta do what you gotta do, myself, id say pardon? Snap, lose it, and then laugh giving them a few belly pokes and deescalate the situation, give em a bit of a joke… realluy tho, id steer them to my composer, writer and producer rates, as well notify them of my publisher and label, to ensure they work out the proper licensing…

          Reply
      • Anonymous

        Ari, I can be tough on corps, but it is the dude in the garage and just people in general that are the problem for me, why? Because a corportion is only a piece of paper, its nothing, a bunch of ledger books and a piece of paper Industry sends whatever person or persons incorporated it… So whether some dude in a garage or a bunch of people in a board room or cubice or small office or whatever wherever, its people, all just people… A corporation cannot do anything without people doing everything….

        Reply
  8. Adam

    This proves how much the specific situation is and how everyone feels about it. We’ve had a few articles like this and public opinion seems strongly on the side of the Daily Show, when the Amanda Palmer situation, and others more recent, made a big deal about how wrong it was not to pay… I think Ari is right to point it out, but its also key to notice how people seem more willing to provide free music for “daily show podcast” than other formats… doesn’t have to be black and white!

    Reply
  9. Bill

    A correct simile would be. Hey how about you come on my established show and tell your jokes to get your name out there. We feel the free airtime is payment enough. Feel free to plug your website and/or upcoming show.

    Reply
    • Aaaaron

      Except, they don’t plug anything – no shows, websites, merch, cds, itunes, nothing. The musicians aren’t being invited on. If the musician was invited on to perform and plug soething then that absolutely is worth it for no payment. Great promo.

      Reply
  10. Versus

    “Why do you expect to get paid? It’s free promotion!”

    and of course, you can always make a killing on the T-shirt sales!

    Reply

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