The Importance of Getting Your Vitaman D Levels Tested

Posted on | June 14, 2014 | No Comments

Latitudes of continental U.S. population centers. From October to March, most of the U.S. does not have enough sunlight to create the vitamin D you need.

The NYT reported today that low vitamin D levels have been tied to premature death. This finding underscores an important point: Especially if you live in a place like Seattle (actually, anywhere north of Arizona), it’s important to get your vitamin D levels checked regularly. There is a good chance that sunlight alone isn’t giving you all the vitamin D you need. Consequently, your levels may be low if you aren’t supplementing.

This is particularly important if you don’t work an outside job. Moreover, the older you get, the more likely it is that your vitamin D levels will be low. So for those of us over 45, it’s time to start paying more attention to this metric.

When your doctor orders blood work for glucose, cholesterol, etc., make sure s/he includes a vitamin D test as well. Trust me on this. You may be surprised what you find.

Recently, I asked for a vitamin D test. Otherwise, I wouldn’t have had one, because my doctor had not suggested it. I found out that my levels were quite low, which was odd to me, because a few years ago they were quite high. But I was supplementing around the time of the last test, and I had not been supplementing lately.

Now, I understand just how much vitamin D levels can vary over time, and how supplementing can raise them up. But if you stop supplementing and spend a lot of time indoors, as I often do, they can go way down again.

That’s why it’s important to supplement and get your levels tested periodically. It’s the only way to get a rough picture of where things stand.

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Recap: the Beastie Boys Vs. GoldieBlox–A Drama in Four Acts

Posted on | June 11, 2014 | No Comments

Back in March, the Verge reported that the Beastie Boys had settled their lawsuit against educational toy company GoldieBlox. That suit alleged copyright infringement, trademark infringement, false advertising, false endorsement, and unfair competition, stemming from GoldieBlox’s unauthorized use of the band’s song “Girls” in the company’s popular Internet promotional video.

Photo by Masao Nakagami

According to the Verge, “[a]s part of the settlement, GoldieBlox will no longer be able to use its parody of the Beastie Boys song “Girls” and will publish an apology to the band…The toy maker will also make a donation based on a percentage of its revenues to a charity selected by the Beastie Boys that supports science, technology, engineering, and mathematics education for girls — the very subjects that GoldieBlox’s toy lines try to promote.”

Until recently, the specific amount of GoldieBlox’s donation was unknown. But on May 12, 2014, Digital Music News reported that the amount of the donation had recently been detailed in court filings from the Beastie Boys’ copyright infringement lawsuit against Monster Energy drink: To compensate for its unauthorized use of “Girls,” Goldieblox will donate 1 percent of its gross revenue to the Beastie Boys’ specified charity until it has paid a total of $1 million.

With this final piece of the puzzle in hand, now seems like a good time to offer a little recap commentary on the GoldieBlox drama, highlighting a couple of the important story lines and the lessons they offer for content users and content owners.

So I give you the Beastie Boys vs. GoldieBlox–A Drama in Four Acts.

Act I: GoldieBlox draws the ire of the Beastie Boys.

GoldieBlox initially drew the ire of the Beastie Boys by using the band’s song “Girls” in a company promotional video without permission. This video was widely circulated on the Internet, achieving so-called “viral” status. GoldieBlox argued that it was not required to secure a license for “Girls”, because its video was created “specifically to comment on the Beastie Boys song, and to further the company’s goal to break down gender stereotypes.”

It’s unclear from the news accounts exactly how the Beastie Boys communicated with GoldieBlox about its unauthorized use of “Girls”. Did they send a cease and desist letter? Did somebody simply send an e-mail message or make a phone call?

Why would the nature of the contact matter here? I’ll get into that in a minute. But at this point, it’s enough to know that in response to the Beastie Boy’s communication, GoldieBlox did not cease its use of the song. Instead, it filed a suit against the Beastie Boys in federal court seeking a declaratory judgment that its use was subject to the fair use exception of U.S. copyright law.

Our friend Wikipedia describes a declaratory judgment action as follows:

A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to any appeal).

To say the least, GoldieBlox’s approach was novel. Here’s why: Fair use is an affirmative defense to copyright infringement. Typically, one doesn’t raise it until after one has been sued for infringement. Here, the Beastie Boys had not yet sued GoldieBlox for infringement.

Prior the U.S. Supreme Court’s 2007 decision in MedImmune v. Genentech (“MedImmune”), a declaratory judgment action on this issue likely would have been dismissed for lack of jurisdiction on the grounds that there was no “reasonable apprehension” of an infringement suit.

But in MedImmune, a patent licensing case, the Supreme Court replaced the “reasonable apprehension” test with an “all circumstances” test. Little by little, the lower courts have been extending MedImmune’s new (and more permissive) standard beyond the patent law context, applying it to other intellectual property law scenarios as well (e.g., trademark infringement). Consequently, there’s no reason to believe that the same standard couldn’t be applied to a matter involving an alleged copyright infringement.

Under the “all circumstances” test, a court’s analysis shifts to determining “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment”.

Therefore, under the MedImmune test, when the Beastie Boys challenged GolideBlox’s use of their song, via a cease and desist letter (or otherwise), that action, in and of itself, might have established enough “controversy” to pass jurisdictional muster. And had Goldieblox managed to get through the courthouse doors, it would have had a shot at a quick, cheap, fair use determination, thereby avoiding protracted litigation (or having to operate its business with the ongoing threat of litigation hanging over its head).

I’m sure there were plenty of onlookers in Silicon Valley who would have very much enjoyed seeing GoldieBlox test the envelope of MedImmune in the context of copyright infringement and fair use. But in the end, it wasn’t to be. For a few days after the suit was filed, GoldieBlox shifted course, pulling back from the suit, removing “Girls” from its video, replacing it with a different song, and stating publicly that the company was sorry for using “Girls” without permission and now wanted to be friends with the Beastie Boys.

These actions didn’t come as a huge surprise to me. Probably, GoldieBlox realized that it had milked all the publicity it could from the dust-up and that public opinion was swinging towards the Beastie Boys. At the same time, GoldieBlox’s attorneys must have understood, even before filing the complaint for declarative judgment, that this sort of action wasn’t an optimum vehicle for asserting the fair use defense, because it provided leeway for a court to dismiss the suit without ever determining the applicability of the fair use defense. So while MedImmune opened up the possibility of pursuing a declaratory judgment action in this sort of case, it remained, at best, a Hail Mary for GoldieBlox.

Act II: GoldieBlox Beats a Strategic Retreat, leaving the Beastie Boys with three unappealing options.

Whatever its reasons, GoldieBlox’s decision to pull back was great strategy. In doing so, it presented the Beastie Boys with three rather unpalatable options: negotiate a settlement, walk away with nothing but an apology, or sue for infringement.

Of the three options, a settlement seemed to have the best likelihood of allowing everybody to walk away with their wallets and dignity more or less in tact, which is no doubt why the parties eventually did reach a settlement.

But at first blush, pursuing a settlement was complicated, because deceased Beastie Boy Adam Yauch had requested in his will that any song to which he contributed as a writer or co-writer never be used in advertising (although at least one estate planning attorney has questioned whether that provision would actually be enforceable). Consequently, it didn’t matter how good a settlement might look on paper or how virtuously it could be constructed. It was still going to feel like something of a loss to the band, because “Girls” had arguably already been used in advertising, and a settlement wouldn’t change that fact.

The second option, simply walking away, was unpleasant for similar reasons. At some level, it was letting GoldieBlox win.

By contrast, the third option, litigation, at least held out the possibility that the surviving band members could make GoldieBlox pay for disrespecting the wishes of their dead brother. That said, litigation wasn’t exactly a great option either.

First, it would be expensive.

Second, once the Beastie Boys sued for infringement, they would give GoldieBlox a much better vehicle for asserting the fair use parody defense and getting a court to rule on it. And while GoldieBlox might not have had the absolute best facts for mounting a parody defense, imho, there were enough favorable facts to make things interesting in court. So while the Beastie Boys probably had a better than 50/50 chance of prevailing, the facts weren’t necessarily a slam dunk for them.

Third, if GoldieBlox succeeded with a fair use defense, it could establish a precedent with wide ranging negative implications for the music industry as a whole.

(Here’s how the bad precedent would have worked: If a court had found that GoldieBlox’s actions here constituted fair use and were okay, then we’d undoubtedly see a flood of other corporate videos on-line, where companies “parody” popular songs in an effort to get around having to pay to license them. And while this may not be an issue for the Beastie Boys, who are not interested in licensing their music for commercials, it could be very negative for the vast majority of artists who are interested in licensing these uses.)

Act III: The Beastie Boys Call GoldieBlox’s Bluff.

Of course, a lawsuit could be expensive for GoldieBlox too, and its odds if winning weren’t great. So at the end of the day, the Beastie Boys rolled the dice, called Goldieblox’s bluff, and brought suit, hoping, I imagine, that it might improve their leverage.

In the end, apparently it did. Within a few months of bringing suit, the parties announced that they had reached a settlement, the specifics of which we learned more about on May 12.

Act IV: The Aftermath of GoldieBlox.

I’m sure many music industry folks would have taken great satisfaction watching the Beastie Boys drag GoldieBlox through the mud in court. Indeed, I might be one of those people myself. Nevertheless, it’s probably for the best that things were resolved outside the courtroom.

That being said, it’s hard not to feel that the Beastie Boys’ mostly won a Pyhrric victory here, if it can be viewed as a victory at all. This is especially true if we see GoldieBlox’s actions around “Girls” for what they clearly were: a clever business strategy based more on cost-benefit or perceived negotiating leverage than on ethics or empathy.

Given a choice, the Beastie Boys would not have licensed this song, no matter how high the price. Nevertheless, at the end of the day, GoldieBlox got temporary use of “Girls” and a ton of free publicity, which was its goal. In exchange, GoldieBlox had to pay one million dollars to charity.

From where I sit, that looks like a bargain for GoldieBlox. Indeed, if somebody had asked the principals of GoldieBlox at the outset whether they’d be willing to pay one million dollars for the results they achieved, I suspect they would have answered “yes” in a heartbeat.

This is one of the dispiriting takeaways from this situation: Despite all of its protestations to the contrary, GoldieBlox did not see the members of the Beastie Boys as human beings. By its actions, GoldieBlox revealed the cold, selfish, lack empathy that lurks underneath its feel-good, girl power image.

Apparently, all GoldieBlox saw was a reified abstraction called the Beastie Boys, a famous symbol that could be leveraged in the service of gaining attention and aggrandizing its project. Perhaps the principals of GoldieBlox rationalized their actions on the grounds that the Beastie Boys’ early work had utilized unauthorized digital samples. So what’s good for the goose ought to be good for the gander too, right?

And under normal circumstances, that line of thinking might have provided GoldieBlox a thin veneer of cover. For on the issue of IP law ethics, the Beastie Boys’ hands were not spotlessly clean. But these circumstances weren’t normal. What GoldieBlox lost sight of was the human element: that there were people who power the abstraction called “the Beastie Boys.” Much like the employees of GoldieBlox, these people who are the Beastie Boys must also get up each morning, do their business, and try to make their way through the world.

Somehow, the people at GoldieBlox forgot that one of the people inside the Beastie Boys abstraction died far too young. He didn’t drink himself to death, overdose, hang himself, or go in some other kind of crazy rock star way. He just got cancer and died, like lots of other regular people in the world.

All indications are that he meant a lot to the people who were close to him. And whether GoldieBlox cared or not, this was a person who apparently didn’t want his music used in advertising. At least from the outside looking in, it doesn’t appear that the Beastie Boys ever tried to use this fact as a negotiating tactic or game to extract a higher license fee from GoldieBlox. Indeed, if it seemed like the band had been doing that, I’d have a lot more sympathy for GoldieBlox.

Instead, the surviving band members tried to honor their dead friend’s wish that his music not be used in ads. Such a bummer that carrying out this wish and honoring his memory required the surviving Beastie Boys to endure the ordeal of suing GoldieBlox before accepting a settlement, which attempts to heal a wound with money that can’t be healed that way.

That’s a painful there-by-the-grace-of-god-go-I moment for any content owner who values control of their IP. But to make matters even worse, the GoldieBlox affair also leaves unresolved some other thorny questions, including whether it may now be possible to adjudicate a fair use claim via a declaratory judgment action, even when the content owner has not yet brought suit for infringement.

If a content owner sends a cease and desist letter to an unauthorized user, is that now sufficient to trigger declaratory judgment jurisdiction on the question of fair use? In the post-MedImmune world, the answer may well be “yes,” and that has to concern musicians, publishers, record labels, and other content owners. It also underscores the increased importance of proceeding carefully and strategically when a content owner learns that a third party has made an unauthorized use of their content. For the possibility of unintended consequences is now higher than it used to be.

GoldieBlox decided not to push the declaratory judgment strategy, but that doesn’t mean somebody else, perhaps with better facts on the issue of parody, may not choose to pursue that approach in the future. And if somebody does get a favorable declaratory judgment outcome around fair use, that will no doubt embolden others to do the same, by lowering the perceived downside risk of pushing the envelope from a full-bore trial to a summary proceeding.

That’s the sort of challenge that Silicon Valley hackers love, because it’s what they do: probe systems for weaknesses, potential advantages, opportunities, or efficiencies. Cheaper adjudication of fair use disputes is exactly that sort of opportunity. To the extent that the various parameters around fair use jurisprudence have changed, it also changes the system as a whole, the respective bargaining leverage of parties, and what is possible within that system. Therefore, it’s hard to imagine that we won’t encounter this sort of situation again, and content owners would do well to prepare for it.

Update: On June 5, 2014, Pitchfork reported that the Beastie Boys had won a $1.7 million damage award in their copyright infringement suit against Monster Energy Drink. So perhaps there was a silver lining for the Beastie Boys in the GoldieBlox situation after all, to the extent that the settlement helped the band establish a market value for Monster’s unauthorized use of its songs. That being said, Monster has indicated that it will appeal. I guess we’ll have to wait and see whether that damage award holds up or is ultimately reduced.

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A few thoughts on Seattle’s New Minimum Wage Proposal

Posted on | May 5, 2014 | No Comments

Lots of discussion and some confusion about the mayor’s recently announced minimum wage proposal (actually it’s the work of a committee of business, labor leaders, and politicians that he convened).

To me, the most useful quick and dirty metric for thinking about the proposal is to look at the proposed minimum wage increase in 2014 dollars and then ask how it relates to the current minimum wage.

That’s the number you get when you do this equation:

Proposed Seattle Minimum Wage in 2014 dollars/Current Washington Minimum Wage

If the final minimum wage increase ends up being $13.25/hr in 2014 dollars as Goldie has argued on his Horse’s Ass blog, that is a little more than 1.4 times what the current state minimum wage is now (and 1.7 times the current federal minimum).

Fifteen dollars an hour in current dollars would be around 1.6 times the current state minimum and almost twice as high as the current federal minimum.

Some people didn’t want to raise the minimum wage at all. Some people wanted it to immediately be 1.6 times greater than it is now. Those are the two polar extremes.

But everybody who supports raising Seattle’s minimum wage didn’t necessarily support immediately making it 1.6 times higher than it is now. Indeed, I suspect as more people have drilled down on the details, they’ve come to understand that this is an issue with a lot of moving parts and dependencies.

One poll showed that 68% of Seattle voters favored raising the minimum to $15 an hour, but I doubt those people are a monolith. What that poll shows is that Seattle voters want substantive action on this issue. That’s why business can’t just put its head in the sand and stonewall.  Nevertheless, the poll doesn’t say that every single member of that 68% would oppose a reasonable compromise.

That seems to be what Murray’s commission has delivered: a compromise proposal that gets us to a minimum wage around 1.4 times greater than it is now, which is about where I thought things would end up. It’s a big enough increase to show meaningful substantive action on the issue and no bigger.

If this plan passes the Council, I can see why some of the more hardline folks on the left will be disappointed. They haven’t had this much wind in their sails on an economic justice issue since the early 1970s. But I can also see why organized labor is going to walk away feeling pretty good about the outcome.

This is precedent they can use moving forward, and it’s probably closer to a number that can play in less liberal and affluent cities than Seattle. So it doesn’t seem like some crazy anomaly.

I hope the hardline folks will eventually put things in perspective, follow suit, and feel good about it too. It’s a marathon, not a sprint.

If you had told most left-of-center folks in 2012 that Seattle business leaders in 2014 would sign off on raising the city’s minimum wage to 1.4 times the state minimum (already among the highest in the nation), I think most people would have seen that as something to be psyched about.

It may not be a perfect win, like the Seahawks blowing out the Broncos in the Super Bowl back in January. But it’s a win nevertheless

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The Universe Had A Plan: “Go Hawks!”

Posted on | January 19, 2014 | No Comments

Seahawks Decal

Back in 1977, I was starting 9th grade in Champaign, Illinois. One day, a kid in my class told me that if you wrote a letter to a pro sports team and told them you were a fan, they would send you free stuff.

The Seattle Seahawks were a brand new NFL franchise back then. Unlike the other expansion team, the Tampa Bay Buccaneers, who were one of the worst teams in NFL history, the Hawks had been reasonably competitive in their first season.

I thought the Seahawks helmets were super cool. They also had a left-handed quarterback: Jim Zorn. I thought that was cool too, as I was left-handed.

With the help of my mom, I wrote the Seahawks a letter saying that I was a big fan of their team. A few weeks later, I got an envelope back from them. Inside, was a decal that looked a lot like the picture above. I put that decal on the window in my bedroom.

Fast forward to 1992. My brother and I are driving across the country from Boston to Seattle, where he had lived since 1989. I am in the process of moving out there too.

We drive through Champaign on the way there and spend the night hanging out with my old friend Larry Crotser, who happens to be in town from Chicago that weekend visiting his parents.

The next day, Ben and I drive by our old house to take a look at it. There’s a guy out in front of the house next door, and we strike up a conversation with him. He indicates that if we knock on the door at our old house, the teenage son of the owner is there and he suspects that the son will let us see the inside of the house.

We go over and knock on the door. Sure enough, the son is home and after we explain who we are, he invites us into the house for a tour. They’ve done a lot of nice renovations on the inside. But while some things are definitely different, a lot of it is just as we remembered it.

When we head upstairs, we walk into my old bedroom. That’s when I see it: The Seahawks decal is still on the window there.

Later that day, after driving around town some more, we got in the car and continued the trip west to Seattle, where I’ve lived ever since.

In 2005, my parents moved to Seattle too. Now, the whole family is living here.

But long before any of us got to Seattle, the universe apparently knew that we would all end up here one day rooting for the Seahawks.


A year ago next Sunday (Jan 26), my dad passed away here in Seattle. Since my folks moved out here, Sunday football has been one of our family rituals.

I’m really happy I got to watch so many games with my dad in the years before he passed. Parkinsons took a lot of stuff away from him. But it never took away watching football, which was one of the last things he had left, and something he enjoyed to the very end.

I watched the NFC championship game with him last Jan 20, six days before he died. If he’d held on another week or two, we  undoubtedly would have watched the Super Bowl together as well.

In a little while,  Antonia and I will be heading up north to get my mom. Then, we’re going to my brother’s to watch today’s game with Ben and his family. Although my dad won’t be there, I know he’ll be with us in spirit for sure.


Well, the Hawks played hard, got a few home team breaks, and managed to pull out a 23-17 victory. So we live to play another day.

Early in the season, my nephew developed a special celebration he’d do when something good happened for the Seahawks (a score, interception, sack, etc). It was also a tribute to my dad. He called it the “Conductor” (among other things, my dad was an orchestral conductor).

First, Max would tap the an imaginary podium with his imaginary baton. Then, he’d raise his hands up in the air and start conducting his imaginary orchestra. In my mind, they’re always playing a beautiful celebration song.

Let’s just say we were all doing the Conductor today at the end of the game after Richard Sherman tipped Colin Kaepernick’s pass in the end zone and Malcolm Smith grabbed it for an interception.


Next stop: Super Bowl. No sleep till Jersey!

Here’s hoping our imaginary orchestra is playing another celebratory song on Feb 2.

Go Hawks!

UPDATE 2 (2/2/2014):

Seahawks beat Broncos in the Super Bowl 43-8!







The Universe did have a plan.

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Carl Wilson in Slate: What you can learn about music—and humanity—from the YouTube comments on Bob Seger’s “Night Moves.”

Posted on | November 28, 2013 | No Comments

A nice post from Carl Wilson in Slate the other day. You’ll want to check out the whole thing for sure, but here’s a little appetizer:

This is the insight that both Slutsky and Barber have flashed on intuitively, I think, in choosing the comments on songs (out of all the YouTube offerings): that music, because it can be background and foreground, because it is about sculpting time, often insinuates itself into our lives more in the way that people and events do than in the manner of a movie or a painting. It’s a medium of echoes, inherently conversational. The way that we address it, whether coherently or inchoately, is in turn musical.

As an alum of the University of Michigan, I always think of Ann Arbor when I hear Bob Seger (especially “Mainstreet”, but “Night Moves” can do it too). I also think about growing up in Champaign, Ill, another midwestern college town.

Like a number of other artists who hit in the mid 1970s, Seger was over 30 and a grizzled rock vet by the time “Night Moves” finally hit. And while I enjoyed his work during my teenage years, his popular songs from that period (similar to those of groups like Fleetwood Mac) often reflect what I would consider to be the concerns of a people who are now firmly adults (something I’ve realized when I’ve listened to these songs over the last couple of decades).

One of those concerns is undoubtedly the dawning realization that time is not standing still. I don’t know about anyone else, but in my late 20s and early 30s I had my first experience of feeling my youth was starting to slip away. That engendered a pretty heavy wave of nostalgia. Then, that passed. Now, at 50, I realize that 30 was still quite young (and I sometimes have nostalgia waves about that time). I bet my mom, who will soon be 81, feels the same way about being 50.

It’s apropos that somebody would single out Bob Seger and “Night Moves” for this sort of discussion, because it is, of course, a song about nostalgia and the very time sculpting qualities of music that Carl describes above. (“Woke last night to the sound of thunder, how far off I sat and wondered. Starting humming a song from 1962. Ain’t it funny how the night moves. When you just don’t seem to have as much to lose. Strange how the night moves. With autumn closing in…)

The same is true of many other Seger hits from this period (e.g., “Old Time Rock and Roll”, “Against the Wind”, “Rock and Roll Never Forgets”, “Still the Same”, “Like a Rock”). Unlike his earlier regional hit “Ramblin’ Gamblin’ Man”, which is very much in the present tense (ain’t good lookin’, and you know I ain’t shy…), Seger’s post-Night Moves work is filled with nostalgic paradise lost stories in which music regularly plays a starring role.

On this Thanksgiving morning, I think it’s time to go put some Seger on and think about the good old days.

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Who’s Screwing You Worse: iTunes Radio, or Pandora?

Posted on | November 27, 2013 | No Comments

Digital Music News strives to answer that age old question.

Short answer: It depends.

Another thought: If nobody knows who you are, it probably doesn’t matter who is screwing you.

Like Billy Preston once said: “Nothing from nothing leaves nothing.” 

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Digital Music News: Top TV Producer: “It’s Amazing That We Still Pay Artists Anything for Music…”

Posted on | November 27, 2013 | No Comments

Because it’s all about exposure right?

Personally, I find this attitude to be B.S, and I hope people will think twice before falling prey to it. 

That being said, it’s also important to remember the following: If your song gets played on television in a commercial or on a television show, you can still make performance license money from that, even if you don’t receive an upfront licesing fee. I’ve known people who did quite well just of the performance royalties.

So the most prudent approach is to take each licensing opportunity on a case by case basis.

Beyond that, the collapse in master/sync fees also underscores that there is a lot more “good enough” music out there these days. Recording technology is much more available (and affordable) than it was 20-30 years ago. Many more people have learned how to use it. So licensees have more options to choose from.

–from Digital Music News.

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Lessons Learned in the Church of Dissonance: Father’s Day Thoughts on Edwin London (1929-2013)

Posted on | June 15, 2013 | 1 Comment

Edlondon1969bAs I’ve mentioned before on this weblog, there wasn’t much Judeo-Christian worship in our family growing up. Nevertheless, there was always plenty of religion in our home. Through the years, my brother and I absorbed large helpings of an eclectic gospel authored by our father, Edwin London, the founder and sole rabbi of the Church of Dissonance.

When we were growing up, our church didn’t yet have a name. It was more of a free flowing set of ideas and attitudes–a way of being, or an outlook, if you will. The name came much later, courtesy of our buddy Pete Sheehy.

At a summer barbecue around 1999 or 2000, I was describing to Pete the childhood experience of attending my father’s atonal, contemporary music concerts, and how hard my brother and I found it to sit still through music so difficult to absorb that 10 minutes of it often felt more like an hour.

“That sounds a lot like it was for me going to church when I was a kid,” Pete interjected.

“You’re right,” I responded, “I guess we were raised in the Church of Dissonance.”

Since that day, I’ve intended to record the most important lessons of our church for posterity. And now, on Father’s Day, in the year of Edwin London’s passing, I think the time is finally right.

So I give you 17 lessons learned in the Church of Dissonance (“COD”):

1. Avoid cheap beer, rot-gut whiskey, and sweet mixed-drinks.

When I was in high school, my mom cut a cartoon out of the New Yorker and put it on the wall in the breakfast nook of our kitchen. There was a guy sitting at a bar talking to the bartender. The caption read “The good Scotch James. My body is my temple.”

Drinking was not frowned upon in the COD. But drinking low-end alcoholic beverages was. On more than one occasion, I got advice along the following lines from my dad:

“If you don’t like the taste of an alcoholic beverage on its own, don’t drink it mixed with other stuff to hide its flavor. Very little good ever comes from doing that. If you can’t afford to drink the quality good tasting stuff, save your money until you can.”

As I enter my 35th year of drinking on a semi-regular basis, I’ve found my dad’s advice on these matters to be solid. I don’t always follow it (I do enjoy a limeade Shandy; sometimes, I make it with cheap beer), but when spirits are involved, dad was right: If one anticipates a long night of drinking, it’s best to avoid the Well and confine the mixer to an H20 derivative (e.g., ice, water, or club soda).

Read more

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Trichordist Claims 45% Drop in Working Musicians. BLS Data Tells a more Complicated Story.

Posted on | May 28, 2013 | No Comments

Please Note: An earlier version of this post attributed the blog post discussed below to David Lowery. Subsequently, I have learned that Lowery is not the author of this post. I have revised this piece to remove references to David Lowery, and I sincerely apologize to Mr. Lowery for any misunderstanding.

A recent post on the Trichordist quoted data from the Bureau of Labor and Statistics (BLS) indicating that the number of working musicians has decreased by 45% since 2002. It included the following graphic to illustrate this point:

The Trichordist’s statistics seemed shocking. Could they really be right?

An employment drop of 45% in a ten year period is pretty extreme, even given the current state of the music business. Therefore, I thought it might be worth a visit to the BLS website, to dig a little deeper into the Trichordist’s numbers. Fortunately, the Trichordist was kind enough to cite its sources in the image above. Unfortunately, it did not include hot links to these sources in its blog post, and I’m kind of lazy. So rather than hand-typing those links into the brower,  I first did a web search on “BLS musicians” to see if that would take me to the right place. I ended up at a page titled “Occupational Outlook Handbook” (

This page did not contain the data that the Trichordist used to make the chart above, but it did indicate the following:

  • that there were 176,200 jobs for musicians and singers in 2010.
  • that the number of musician and singer jobs was expected to grow 10% by the year 2020.

At this, point, I was getting confused. Why were these numbers different than the Trichordist’s?

Not only were the numbers from the “Occupational Outlook Handbook” completely different (and significantly larger) than the Trichordist’s numbers, they also indicated job growth over the next 10 years, not job shrinkage (which is what the Trichordist had asserted was happening). So I bit the bullet and hand-typed in the links from the Trichordist’s chart above, which are as follows:;

When I got to those pages, the numbers were the same as those cited by the Trichordist above. But I was still left wondering why the BLS website had more than one set of musician employment numbers.

It turns out that the Trichordist’s numbers and the Occupational Handbook numbers were drawn from different surveys that used different methodologies.

The 176,200 figure comes from the Industry-Occupation Matrix Data, by occupation (the “Matrix”). You can find that here. The Matrix data is further broken down by industry, and you can download the raw data for an industry in .xls spreadsheet format. (The raw data for musicians and singers is available here:

The BLS has this to say about where the Matrix numbers came from. The methodology of the Matrix is explained here. This paragraph from that discussion seems particularly instructive (especially the last sentence):

Base-year employment data for wage and salary workers, self-employed workers, and unpaid family workers come from a variety of sources, and measure total employment as a count of jobs, not a count of individual workers. This concept is different from that used by another measure familiar to many readers, the Current Population Survey’s total employment as a count of the number of workers. The Matrix’s total employment concept is also different from the BLS Current Employment Statistics (CES) total employment measure. Although the CES measure is also a count of jobs, it covers nonfarm payroll jobs, whereas the Matrix includes all jobs.

So where do the Trichordist’s Numbers come from and how do they relate to the numbers from the Matrix?

The numbers from the Trichordist’s chart were drawn from the Occupational Employment Statistics program (OES) (, a data source that seems to share some methodological similarities with the CES (which was referenced in the paragraph above).

The OES FAQ explains the methodology underlying the OES. For our purposes, the most salient information is as follows:

“Employees” are all part-time and full-time workers who are paid a wage or salary. The survey does not cover the self-employed, owners and partners in unincorporated firms, household workers, or unpaid family workers.

It appears that the numbers used in the Trichordist’s chart exclude both self-employed workers and owners of unincorporated firms (i.e., the partners in a partnership or the members of an LLC).

It’s not trivial to omit self-employed workers and owners of incorporated firms. Of the total musician and singer jobs in 2010, the data from the spreadsheet I linked to above indicates that 75,000 (42%) of those jobs stemmed from self-employment. I don’t know about you, but it definitely makes intuitive sense to me that this percentage would be pretty high, as lots of musicians are self-employed/sole proprietors or operating in a partnership or LLC (i.e., an unincorporated association).

Update: In a Facebook comment thread on this blog post, I gave some more concrete examples about common situations for working musicians and how they are captured by the BLS data I looked at. One of the commenters suggested that it would be useful to have it in the main blog post as well. So I’m adding it here.

(a) Let’s say we have a band. They make their entire living from music. The core group is two people. They are organized as a member-managed, LLC with two members. The LLC is taxed as a partnership. They don’t receive a salary. They get their money in the form of distributions from the LLC. This money flows through to each of their 1040s on a k-1 and is treated as self-employment income.

Let’s say that two other musicians also regularly play in this band (perhaps they are the drummer and bass player), but they are not members of the LLC (i.e., they don’t hold equity in the company). These musicians may also pick up work playing gigs with other people when the main band isn’t active. Both in the context of their main band and on any other jobs they do, these musicians get paid as 1099 contractors. So all their income in a year is also from self-employment.

None of these musicians are counted in the OES data the Trichordist has cited, but these musicians are apparently counted in the Matrix data. The scenario above is a very real scenario, especially for the so-called middle class of musicians (i.e., people who are making enough money from playing music to subsist without another job). As the Matrix data shows, the median income of the musicians in their survey was around $22/hr. That works out to a yearly gross income of around $42k (40 hours a week for 48 weeks a year). So half the musicians in the Matrix data made more than that and half made less. I suspect that a lot of full-time musicians in the $20k-$40k range fit the scenario I’ve spelled out above (either co-owner of a partnership or LLC or a sole proprietor receiving living mostly from 1099 contractor income).

(b) Now, let’s think about a more successful band. I don’t know anything about the particulars of Wilco, but I get the sense that Jeff Tweedy is the only equity holder in Wilco, Inc. (or Wilco, LLC). So all the other guys are likely hired guns from a legal and financial standpoint.

In a situation like that, where a band is successful and has more predictable cash-flow, there’s a much better chance that these hired guns won’t be 1099 contractors anymore. Instead, they will be salaried employees of Wilco, Inc., benefits will be paid, exclusivity may be required, etc.

Musicians in the Wilco situation would likely be counted in the OES numbers that the Trichordist cited. And to the extent that the OES numbers say that these kinds of musician jobs have shrunk significantly since 2002, that’s no small thing. For those kinds of jobs are good jobs, and we should all probably be fighting for a world in which there are more jobs like that for musicians. But that’s a different issue than the one the Trichordist has put on the table (i.e., the changing character of musician jobs vs. a change in the absolute number of musician jobs).

Where does that leave us?

I’d love to get a more nuanced picture of things than I have now. Even with the additional info from the Matrix, a lot of important questions remain unanswered. But based on the info I found on the BLS website, I will say this: If the goal is to understand how many working musicians and singers there are over time, the job numbers used must include self-employed workers; otherwise, they aren’t suitable to that task. If we had, say, Matrix data from 2000 that could be compared to the 2010 Matrix data, maybe we would find that the trends in that data are the same as the trends in the OES data that the Trichordist used for its chart.

But absent that sort of data, it seems like the broadest claim one can make based on the OES data is that payroll-based jobs for musicians have shrunk since 2002. However, once we narrow things down to that claim, it significantly muddies the causal link that the Trichordist is trying to make between the rise of digitial music and fall of musician jobs.

The loss of a payroll job doesn’t necessarily mean that the person in question was unable to find a nonpayroll job as a musician. Indeed, a lost payroll job might well be replaced by a new non-payroll job in the economy. Therefore, the absolute number of musician jobs may not have shrunk at all. Instead, it may be that the character of musician jobs has shifted.

Having said that, the loss of payroll-based musician jobs may still be significant. As in other industries, the loss of such a job can mean that a musician is exchanging a job with benefits, etc. for an independent contractor situation, where pay and benefits are not as good. So there may well be economic losses involved. But it seems highly speculative to draw conclusions about the nature or cause of these sorts of economic losses from the BLS data cited in the Trichordist’s blog post.

Perhaps the Trichordist will dig further into this question, find more data, and then share what it has learned with the rest of us.

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This post has been moved to the link below

Posted on | May 23, 2013 | No Comments

This post was updated for a variety of reasons that are explained elsewhere, and the permalink needed to be changed as well. You can find the updated version here:

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