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Topic: Promos?

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tarheel (Greg R.)



Subject: Promos?
Date Posted: 4/17/2008 6:10 PM ET
Member Since: 12/29/2007
Posts: 17
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I received a promo version of a disc today and was looking for some clarity on the SACD policy on such discs.  The disc today is clearly stamped "for promotional use only".  How should i mark it?  I may want to trade it back out someday, but I can't if promos are not allowed.

The only thing I can find in the help docs is under the policy banning burned copies.  It states that no promotional discs of ANY kind should be traded.  To me, this also include discs with a hole punched in the UPC (which I have also received.)  Thoughts?

sheryl (Sheryl D.)


Date Posted: 4/17/2008 7:20 PM ET
Member Since: 8/7/2006
Posts: 173
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Promos are not allowed. I specifically asked Help if it was okay to post discs with hole punches through the UPC and was told no, they should not be posted.

A lot of people are fine with promos. However, they aren't postable under the guidelines of the site, and I believe you're within your rights to mark it "wrong disc received" and indicate you received a promo copy.

 

kayote (Kayote B.)


Date Posted: 4/17/2008 7:35 PM ET
Member Since: 5/28/2006
Posts: 691
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Wait, what?  One of the stores where I used to live put a hole through the UPC on bargain CDs.  What does that have to do with promos?

RadioActive (Dennis B.)


Date Posted: 4/17/2008 8:15 PM ET
Member Since: 4/23/2007
Posts: 118
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Never in my wildest dreams would I consider a hole punch as a promo CD.  I've probably sent (and received) punched CD's without giving it a second thought.  That could change everything if it's going to be a "rule".

scotso (Scott C.)


Date Posted: 4/17/2008 8:21 PM ET
Member Since: 11/8/2007
Posts: 975
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I have gotten alot, with holes through the upc, and some with the promotional stamp.  Subsequently, I have re listed them, if I didn't like the cd.  I do try to, however, let the person I am sending it to, know.  I have never been notified myself, however. To me, I don't really care, if the cd, and inserts are complete, I am ok with the stamp, or the upc hole.  If you intend to keep the cd, and NOT request a replacement, you probably whouldn't mark it problem.



Last Edited on: 4/17/08 8:57 PM EST - Total times edited: 1
Classicana (Anna B.)


Date Posted: 4/18/2008 10:10 AM ET
Member Since: 5/6/2006
Posts: 453
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Since technically, no one but the record company 'owns' a promo, it isn't just a SaCD rule to NOT allow them. It could cause problems for the site if someone wanted to be snarky.

RadioActive (Dennis B.)


Date Posted: 4/18/2008 1:25 PM ET
Member Since: 4/23/2007
Posts: 118
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I agree - until the current court cases are resolved, "promos" shouldn't be allowed. 

But, who said a hole punched CD is the same as a promo?

Natch (Joe V.)


Date Posted: 4/18/2008 1:32 PM ET
Member Since: 8/12/2006
Posts: 84
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Wow Classicana - I had never heard "snarky" before and thought you had made up the word, but I checked Merriam-Webster Online and it is real. Not only do I get great music from this site, I also get a language lesson!

In case there is anyone else like me who had never heard it before, here's what M-W Online says:

 

Pronunciation:  \ˈsnär-kē\
Function: adjective
Etymology: dialect snark to annoy, perhaps alteration of nark to irritate
Date: 1906

1 : crotchety, snappish

2 : sarcastic, impertinent, or irreverent in tone or manner <snarky lyrics>

 

iamthed (Alex D.)


Date Posted: 4/18/2008 2:00 PM ET
Member Since: 8/7/2006
Posts: 643
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"Since technically, no one but the record company 'owns' a promo"

It's not only the fact that the record company owns the disc, but it hurts the artist immensely.  For promotional CDs, it isn’t as though as the artist just doesn’t get their royalties (9-18% if sold at full retail price), but the artist actually PAYS for promotional cds.  The label charges the artist for every promotional CD distributed.    

 

Theoretically, if you are at a record shop and are about to buy a promotional or hole punched cd, you’re almost doing the artist a favor by not buying the disc and illegally downloading the album.  Not that I condone illegal downloading (especially with so many free alternatives).

Azimuth (David H.)


Date Posted: 4/18/2008 2:38 PM ET
Member Since: 2/6/2008
Posts: 265
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Since technically, no one but the record company 'owns' a promo,

I beg to disagree. SaCD is within their rights to forbid trading of obvious promos (for whatever reason, though I think it's mainly an annoying policy). But record companies don't own promo's. They send them out far and wide AS GIFTS in hope of radio play, reviews, and good word-of-mouth. There is no contract between the record company and the recipient. The company may not send merchandise out to someone else and simultaneously claim they still own the merchandise. I am confident that the courts will recognize this.


sheryl (Sheryl D.)


Date Posted: 4/18/2008 3:05 PM ET
Member Since: 8/7/2006
Posts: 173
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To answer the question, "Who said a hole punched CD is a promo?"... Robert said it. When I asked last year, this is the response I received:

Dear Sheryl,

It is our understanding that this hole punch designates that this is a
promotional CD; therefore, we must ask that you do not post it to the
site.

If there is anything else we can do for you, please feel free to
contact us. Thank you for being a Charter Member of the best CD club in
America. Please tell everyone who enjoys listening to music about our club,
because the more members we have the more CDs for everyone to trade!

Have a great day!

Robert Swarthout
The SwapaCD Team

--------------------------------------------------

Hi,
I know promotional CDs are not allowed, and I'm wondering if this
includes CDs where the back artwork has a hole punch through the UPC (but no
other markings or writing on the disc or artwork)?
Thanks,
Sheryl

 

Just reporting what I was told. This was many months ago, but if the guideline as to what constitutes a promo has been changed or been clarified by TPTB since then, I haven't seen it anywhere.

iamthed (Alex D.)


Date Posted: 4/18/2008 4:02 PM ET
Member Since: 8/7/2006
Posts: 643
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" They send them out far and wide AS GIFTS in hope of radio play, reviews, and good word-of-mouth."

Those reasons are called sending cds for promotional purposes.  The record labels indicate that they are simply licensing the albums set out for promotional use.

"for whatever reason, though I think it's mainly an annoying policy"

It's for legal reasons, not just to be anal retentive. 

"But record companies don't own promo's"

CDs that are 'provided for promotional purposes,' not mearly a free gift, are technically still owned by the record label.  For example:

  1. See this scan of promo artwork which clearly states: Property of Virgin Records Ltd.
  2. Article Link - "In a brief filed in federal court yesterday, Universal Music Group (UMG) states that, when it comes to the millions of promotional CDs ("promo CDs") that it has sent out to music reviewers, radio stations, DJs, and other music industry insiders..."promotional use only" labels on the CDs mean that UMG owns them forever..."

 

"Just reporting what I was told."

I received nearly the same message when I asked the same question a while ago.  A hope punch promo disc is still a promo disc.



Last Edited on: 4/18/08 4:04 PM EST - Total times edited: 1
scotso (Scott C.)


Date Posted: 4/18/2008 5:16 PM ET
Member Since: 11/8/2007
Posts: 975
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first off, Most artists, other than independent ones, don't really make any money on cds.  They make it on the other stuff, tshirts, posters, touring, etc.  2nd, so , I should have posted  disc with a problem on the promos' I have gotten?  doesn't make sense.  I am not about to trow away the disc , and if I got the music, and inserts, I am not going to request another.

iamthed (Alex D.)


Date Posted: 4/18/2008 8:41 PM ET
Member Since: 8/7/2006
Posts: 643
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"first off, Most artists, other than independent ones, don't really make any money on cds."

Sad isn't it...But that's how it's been for a very long time.  A very fantastic book I read called "Everything You Need To Know About The Music Business" indicates that if an artist sells 500,000 copies of an album (a Gold Record) they'll make on average only $40,000.

 

kayote (Kayote B.)


Date Posted: 4/18/2008 9:43 PM ET
Member Since: 5/28/2006
Posts: 691
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I want to know where they got their information that a hole punched CD is a promo.  It seems a really silly way for them to mark it, and I know stores that put the holes there (usually through the case) to designate them as bargain CDs--a far cry from a promo.

Since promo CDs usually say "owned by the record company" (and I have to wonder when I end up with a stack of them if I can--and if not why I can't--demand they come on their dime and pick them up and pay a rental fee for the sapce they take up in my house) I can see why they aren't legit to be traded. 

It's just the hole punch=promo that I have never heard anywhere but here.

Azimuth (David H.)


Date Posted: 4/19/2008 1:40 AM ET
Member Since: 2/6/2008
Posts: 265
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" They send them out far and wide AS GIFTS in hope of radio play, reviews, and good word-of-mouth."

Those reasons are called sending cds for promotional purposes.  The record labels indicate that they are simply licensing the albums set out for promotional use

I must disagree. For there to be a license, there has to be a two-way agreement--a contract, a meeting of the minds. There is no agreement, thus there is no license.

 

"for whatever reason, though I think it's mainly an annoying policy"

It's for legal reasons, not just to be anal retentive. 

 

It's because SaCD doesn't want to risk being sued, or take the trouble to formulate a reasonable promo policy.

 

"But record companies don't own promo's"

CDs that are 'provided for promotional purposes,' not mearly a free gift, are technically still owned by the record label.  For example:

  1. See this scan of promo artwork which clearly states: Property of Virgin Records Ltd.
  2. Article Link - "In a brief filed in federal court yesterday, Universal Music Group (UMG) states that, when it comes to the millions of promotional CDs ("promo CDs") that it has sent out to music reviewers, radio stations, DJs, and other music industry insiders..."promotional use only" labels on the CDs mean that UMG owns them forever..."

 

I've already seen different kinds of promo's and promo wording, and I've already encountered UMG's ridiculous court claims. Just because they want it to be true doesn't make it so. Otherwise, I could send you anything -- a bar of soap -- imprinted with "Property of Azimuth. Must be returned upon request. Not for distribution or resale" -- and sue you if you gave it away. Well, actually, I *could* give you that bar of soap and sue you for giving it away, but my suit would be either thrown out or a losing venture. You just wait and see how UMG fares...

 

RadioActive (Dennis B.)


Date Posted: 4/19/2008 7:58 AM ET
Member Since: 4/23/2007
Posts: 118
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I could hardly believe it when I saw UMG filed that case.  For years, they always had an "implied" ownership that had never been tested in the courts (a dis-incentive for people to sell or trade promos).  Now, with this case, which they are certain to lose, they are going to lose what little standing they had.

With a promo stamp, there is at least some sort of attempt at retaining ownership.  Back to the UPC hole-punch - why would SACD call that a promo?  A cut-out, perhaps, something the artsist isn't getting a royalty on, certainly.  The label sells the cut-outs with the intention that they be resold (and no markings to indicate otherwise).

kayote (Kayote B.)


Date Posted: 4/19/2008 11:30 AM ET
Member Since: 5/28/2006
Posts: 691
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The other problem with allowing promos in general, is a lot of promos are NOT the same as the final version of the CD.

The artwork is often different/non-existant (cardboard case with track listing), and often it isn't the final pressing of the disc either--the disc looks different, the tracks may be in different order, incomplete/with extra, has different from final mixings of the songs.

SInce the promos are often (not always, but often) different CDs from what you could buy in the store, I don't think they should be allowed to be listed as a normal CD. 

Even when they are the same CD, the artwork is marred by a promo stamp--and we've heard loudly what people think of damage to the artwork!

Leave the CDs that are labeled promo to the CD bazaar.  But if they don't say promo or advance CD or similar, then they aren't.

Azimuth (David H.)


Date Posted: 4/19/2008 12:05 PM ET
Member Since: 2/6/2008
Posts: 265
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Even when they are the same CD, the artwork is marred by a promo stamp--and we've heard loudly what people think of damage to the artwork!
But a promo stamp is not damage. It's an official variant, occasionally quite collectable.

 

RadioActive (Dennis B.)


Date Posted: 4/19/2008 3:55 PM ET
Member Since: 4/23/2007
Posts: 118
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"But a promo stamp is not damage. It's an official variant, occasionally quite collectable".

There are a couple of artists that I've been known to collect all possible variations of.  Even if the tracks were identical, but the artwork or catalog number, or something else was different, I'd want it. 

 

But, I was so much younger then, I'm older than that now.

iamthed (Alex D.)


Date Posted: 4/21/2008 8:31 AM ET
Member Since: 8/7/2006
Posts: 643
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"I must disagree. For there to be a license, there has to be a two-way agreement--a contract, a meeting of the minds. There is no agreement, thus there is no license."

By accepting promotional copies, you are accepting the license.  A contract can be made without having a signature by both parties.  By purchasing a bottle of water at any store, you're entering into a contract. 

Also:

Legal Notice

License.  This CD is property of record company and must be returned on demand.  It is licensed for promotional use and has not been sold.  The CD cannot be transferred without consent of record company.  Use or retention  of CD signifies acceptance of this license.

 

This is even a disclaimer placed on a Capital Records release that wasn’t even a promo

It's because SaCD doesn't want to risk being sued, or take the trouble to formulate a reasonable promo policy.”

It’s because they don’t want to be sued.  SaCD already has formulated a reasonable promo policy, they aren’t allowed: Promotional CDs of any kind are NOT allowed.

“It seems a really silly way for them to mark it, and I know stores that put the holes there (usually through the case) to designate them as bargain CDs—“

Cut out CDs usually constitute schlock CDs sold at bargain prices.  Hole Punched CDs are different.  A record label is about to take the time to unwrap cds, take out the CD tray, take the insert out, hole punch the bar code, and then reassemble for CDs they are going to get ride of for bargain prices.  That’s too much work for less money.  It’s easier just to cut through the bar code/spine. 

Here is a good webpage that discusses it.

 

Regardless of any discussions here, SaCD has already clearly stated and restated that promotional CDs of any kind, including hole punched, are not allowed to be traded here.



Last Edited on: 4/21/08 8:32 AM EST - Total times edited: 1
Azimuth (David H.)


Date Posted: 4/21/2008 1:51 PM ET
Member Since: 2/6/2008
Posts: 265
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Alex,

Thanks for the links, though you haven't convinced me that selling or trading promo's is illegal. Immoral? Maybe. I don't know. Not always, certainly.

I recognize and obey SaCD's restrictions, but I don't for a minute believe that just because some lawyer whipped up some wording, that record companies own CDs they give away, or that a license exists just because one party claims it does. (By the way, did you know that some lawyers are lying weasels? Yes! And some of those even work for the record industry!)

You may be interested to know that the "licenses" on packaged software claiming, "By enthusiastically ripping away the cellophane on this box you agree never to viciously sue this fine purveyor of software should our exemplary product ever completely screw up your expensive machine" are almost certainly legally unenforceable. I.e., bogus.

iamthed (Alex D.)


Date Posted: 4/21/2008 2:52 PM ET
Member Since: 8/7/2006
Posts: 643
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I agree, it's one of those items on the border of illegal/unethical/both...

There really isn't a specific judgement right now that I know of where we have a definite answer either way.   I had a contract class in college, but nothing on property/lease law.

It's better safe than sorry AKA: it's better safe than sued. 



Last Edited on: 4/21/08 3:09 PM EST - Total times edited: 2
Kerensky97 (Dustin B.)


Date Posted: 4/21/2008 7:28 PM ET
Member Since: 9/21/2007
Posts: 117
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So how much would we be f*king with the labels if we started punching holes in barcodes ourselves before trading them?

If even a fraction of the CDs out in the world were punched by third parties and not label promos suddenly the labels have no way of proving that the copy they punched and gave away is a promo.  The plausible deniability that you may be holding a legally purchased copy that some moron like me punched would cancel out with Time/Warner's claim that the only CDs in the world with punched barcodes were all done by them.  All that is left is each side cliaming that the CD is theirs with no proof either way.

The other problem is people who throw out the artwork of their CD and are left with just the disc.  How are we supposed to know if the "disc only" trades we make here are legit or "punch-out promos"?  Short of printing the full discolsure of the fact that the CD and album is a promo I don't think the labels have a legal leg to stand on.

However Swap-A-CD's policy is no promos...  But if you chuck the art and trade the CD who's going to know?

More fun promo talk here:  Appareantly amazon is selling "punch-outs"  http://www.amazon.com/gp/forum/cd/discussion.html?ie=UTF8&cdForum=Fx20DX5GEB7TUX8&cdThread=Tx2L4XC6E6P7XOJ



Last Edited on: 4/21/08 7:32 PM EST - Total times edited: 2
kayote (Kayote B.)


Date Posted: 4/21/2008 7:35 PM ET
Member Since: 5/28/2006
Posts: 691
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I didn't mean cut-outs.  One of the CD stores near where I used to live (which I think has since gone under) took a drill to the case.  The end result was a hole in the case & the artwork. It's similar to a cut-out, except it was round.

If I switched the cases, it's not clear how the hole was made.  I suppose on close examination it wouldn't be quite so smooth, but still.

I'm not sure what a more reasonable promo policy would be. I'd be really irritated to get a promo copy that didn't match the final copy if I ordered a CD. It's not the CD I ordered.


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