The Orchard Experience

I am an independent artist who released a jazz CD in 1999. I was eager to make it available in retail stores and through the W.W.W., so I sent 10 of my CDs to a distribution/retail company called The Orchard. The contractual agreement was that they would sell my CDs on consignment and I would receive payment of $5.46 per CD wholesale. Zoe E. Gottehrer was the contact person for The Orchard at this time, and he promised payment in 3 to 6 months. 

Fast forward to 2003. 
I have never received a single payment from The Orchard.

In 2002 I released two new CDs and selected CD Baby (www.CDBaby.com) as the online distributor. That company has already paid me seven times for CDs sold. Remembering my earlier CD, I contacted The Orchard ten times by e-mail where I was replied with a variety of form letters. Finally after asking for the registered agent of The Orchard (a process that signals the beginnings of a lawsuit), I began a dialog with an actual human being, a Mr. Jim Myer – the current Manager of Artist and Label Relations.

The Orchard has 10 of my CDs. Mr. Myers claims that they have payment for only $33.32 and that they “lost” the other CDs. Of course – they initially claimed that they were recalling the CDs from stores and that this process would take as long as six months. That stonewalled me for a while, but I was persistent.

After several e-mails, Mr. Myer agreed that my original contract from 1999 did not have a sales limit before payment from The Orchard, but their contract has the option of changing payment terms at any time for any reason. His solution was that I sign the new contract as a “sign of good faith.” Of course the new contract is heavily skewed in favor of The Orchard and states that payment will not occur for net sales under $250. 

Since The Orchard deals with independent musicians, they love to toss around ridiculous legal banter. Check out this quote from Mr. Jim Myer:

“…our contracts are in perpetuity and can not be broken because the artists wants it to be.”  

I hate to break the news to you Jim, but when you didn’t pay me a cent for four years - The Orchard BROKE THE CONTRACT. I don't intend to sign a new contract with The Orchard, especially one that guarantees that I will never be paid. Besides... the CD in question sold out of its first pressing, no thanks to The Orchard. 

So – let’s "recap" here…

The Orchard is a music distributor/retailer that takes your CDs on consignment, loses a large percentage of them and only pays you (apparently whenever they feel like it) when the net sales exceed $250. They say (on their website) that they represent over 10,000 artists.

Here is a hypothetical projection:

Let’s say that out of those 10,000 artists, a good 3,000 are like me. They are independents selling their CDs through The Orchard. They have never been paid. Perhaps they even sent The Orchard more CDs without ever receiving a single payment (since the company encourages this).

With the system (explained to me by Mr. Myer), a musician could give The Orchard 15-30 CDs on a consignment fee of say …$5-$7 per CD and never receive a single payment. It is easily possible that The Orchard is hanging on to $200,000 – $500,000 of artist’s CD sales in a nebulous escrow account for unpaid musicians. Guess who will never see those funds?

If this The Orchard experience sounds familiar, please e-mail me at emit. If The Orchard has actually ever paid an artist for their CD, I would love to hear about that as well.

Here are the web sites for governmental agencies in New York that might enjoy hearing about your The Orchard experience:

http://www.oag.state.ny.us/complaints/complaints.html 

http://www.ci.nyc.ny.us/html/dca/html/contact.html

If a few dozen of you file complaints, I am confident that actions will be taken.

In conclusion, I recommend selling your CDs through CD Baby (www.cdbaby.com).  They have a good reputation, pay around 8-10$ per CD sold, are considerably cheaper to set up an account with, and they actually pay their artists.