From time to time we are presented with legal documents that we need to carefully review and sign or negotiate. If you need legal assistance but don’t have the funds to hire an attorney, there is help available to you.

 

One of the oldest organizations is the Volunteer Lawyers for the Arts, based in New York. While this organization is for New York artists, the basic model has been copied here in Georgia with the Georgia Lawyers for the Arts, an outreach program of the Atlanta Bar Association. You can sign up for membership as an artist and receive

• • Regular invitations to upcoming seminars, workshops, and social events
  • One free pro-bono or paid referral per year for an arts-related legal issue
  • Unlimited placements in monthly Legal Clinics
  • Access to their extensive resource library
  • Invitations to members-only social events (Annual Gala tickets are not included)
  • Opportunity to network with artists, arts organizations, attorneys and other entertainment professionals.

 

 

 

A friend and cowriter of mine recently sent me a link to a site that was interested in pitching our song for film and television.  All well and good.  But this proposition had a twist:

• They would give our song a new title
• They would have ownership rights to the retitled version
• We would keep all rights to our original title

In every other respect, this was a standard publishing contract.

Why would a company do that?

The publishing industry has changed dramatically in the digital era. The two largest sources of income for published songs are broadcast performance royalties (radio, television) and film and television licenses (synchronization fees).  It’s practically impossible to crack this field as an individual.  Given the wide range of musical material needed for film cues, you have to have a large library of music in all styles in order to compete.  So in addition to the usual large traditional exclusive publishing  companies going after this business, there are also companies that employ member crowdsourcing (TAXI) and still others that troll searchable sound sites like Soundclick to quickly build up a catalog of material by working out retitle deals with the owners of the music.

In our case, I thought it was a win-win for everybody.  Our song had been written for a specific movie use and was not selected.  We had nowhere else to pitch it, so it sat dormant for a year.  The way this deal was structured left us free to continue to pitch our original title any way we wished, AND we had the benefit of the alternate title being actively pitched by a publishing company with film contacts.

As I did more research, I discovered that there are some drawbacks.

Because the content is identical, and only the ‘wrapper’ changes, it means in effect that the retitle publishing company does not have exclusive rights to the song.  As a matter of fact, we could find another retitle publisher and work out a similar deal, giving us our original and two retitled versions pitched by two different companies.  This can create confusion and ownership questions when the film company receives the same song with two different titles from two different companies at two different licensing rates.

Another area of concern is automatic song identification.  ASCAP and BMI have both employed ‘fingerprinting’ services that can identify a title by its sonic characteristics, reducing  the need for broadcast station playlists and streamlining the logging process.  This is extensively used for song identification with streaming internet radio.  If you have your original version recorded and released for airplay at the same time your retitled version becomes popular from inclusion in a film, who gets the airplay royalties?

Also, consider the possibility of future interest from a traditional exclusive publisher.  They would not be interested in signing a song that already exists in the marketplace under a different title.

Lastly, why retitle the song when there is the option of placing it with a company that does in effect the same thing (pitch the title to film and television) but they don’t retitle the song and there is no long term contract (musicsupervisor.com).

So it’s a mixed bag.  Retitling makes sense if:

• Your song has not been previously released
• You are not actively pitching the song
• You don’t have the option of placing it with an exclusive publisher
• You don’t have the option of placing it with a licensing company that doesn’t retitle
• You sign it to only one non-exclusive retitle publisher
• You are comfortable with the fact that the retitled version, if successfully placed, will be the version of the song that will be recognized and identified, not the original

If you do decide to pursue a retitle publishing deal, remember that this IS a  publishing contract.  As with any publishing deal, you’ll want to make sure you agree on the money splits, that there is some kind of reversion term where you get the song back after a period of time if no placement is secured, and that the publisher is someone you feel comfortable about staying in contact with since you have, in effect, entered into a partnership agreement.

Let’s talk money. All forms of income from music stem from the protection offered by the existing copyright laws.  The monies that are generated by a song’s copyright are usually split evenly between the writer(s) and the publisher(s).  If you are the sole writer of a song and haven’t signed an agreement with a music publisher, YOU are in effect both the writer AND the publisher.  If you are an artist with a song somewhere on the internet and you haven’t entered into an agreement with a recording company, YOU ARE the recording company as well.

Unless you are negotiating directly with someone for the use of your music, another company is collecting these royalties for you (and for everyone else like you).  If you don’t register with them, the money they collect for you goes into a big pile and gets distributed to the ones who HAVE registered.

So, getting down to it, in the copyright law passed in 1976, your rights were:

RIGHT	DESCRIPTION	WHO PAYS?
Public Performance	Concerts, radio and TV broadcasts,nightclubs, etc	Broadcasters pay the performing rights societies: ASCAP, BMI, SESAC.  They in turn pay both the publisher and the writer.
Mechanical Rights	Any form requiring a mechanical device for playback: cassettes, CDs, MP3s	Recording companies  (Sony, UMG, your indie label) pay the publishers or publisher representatives (Harry Fox Agency).  The publisher then pays the writer according to their agreement.
Synchronization	Synchronizing music with video – whether TV or film or commercial. This is usually a negotiated one-time fee.	The publisher of the song negotiates directly with the film or TV or advertising company, then pays the writer according to their agreement.
Print	Sheet music, TAB transcriptions, etc.	The print publisher pays the song publisher, who then pays the writer according to their agreement.
Grand Rights	The use of the song as the basis for another art form, such as film or book.  This is, again, usually a one-time fee.	The publisher negotiates the fee directly, and pays the writer according to their agreement.

OK, that’s the ‘what.’  How much money are we talking about, and how does it get paid?

ROYALTY TYPE	HOW IS THE FEE PAID?
Radio & television	Stations pay a blanket license to the performing rights societies for the right to play ANY song in their catalog.  The fee is based on the size of their listenership. Generally, this is the lion’s share of income received by a songwriter or writer/artist.
Nightclubs	Clubs also pay a blanket license for the right to play music in their clubs for their patrons, based on their capacity.
CD sales	Record companies pay a per song rate to the publisher or a publisher representative such as the Harry Fox Agency. Congress has established a minimum rate (statutory rate – currently 9.1 cents) that is reviewed every few years. FYI, record companies will generally submit a separate agreement to the writer(s) prior to a CD release for a sub-statutory rate. Gotcha!
Synch License (Film), Grand Rights	The film production company pays the negotiated fee for synchronization to the publisher directly.   This is normally a one-time fee ranging from free (for exposure) to thousands of dollars.
Advertising	The advertising agency negotiates either a one-time fee (buyout) or a residual fee with the publisher.  Many factors determine the amount paid: the number of markets in which the ads will air, artist name recognition, lyric changes, etc.
Print	The print publisher pays the song publisher a percentage of the wholesale price as a royalty. Traditionally this has been between 10%-12.5%.  Also, traditionally, this is not split 50/50 (a holdover from the days of print), but that is changing.

In 1998, the Digital Milennium Copyright Act was passed which expanded the 1976 law into the digital realm of the internet.  It also criminalized attempts to circumvent digital rights management and heightens penalties for copyright infringement. There’s a great article from back in 2007 written by Dina LaPolt that goes into great detail about the various ways artists and writers are paid for digital streaming and downloads.  Click here to read it in its entirety.  Here are the highlights:

RIGHT	DESCRIPTION	WHO PAYS?
Digital Downloads	Treated as a form of mechanical license, these are files downloaded for a fee from sites such as iTunes or Amazon.	The download site pays the recording company or administrator such as CDbaby, who then pays the song publisher a percentage of the fee.
Interactive Webast	The consumer interacts with the website to hear music of their choosing as either custom playlists (Grooveshark, Rhapsody) or random automatic selections based on preference (Pandora).	The web site owner pays the recording company, since this is not a broadcast situation. They in turn pay the song publisher a percentage of their fee.
Internet Radio (Master Recording License)	XM Radio, internet versions of terrestrial radio, cable music stations such as Music Choice. The Master Recording license is the fee paid for the right to stream the sound recording.	Soundexchange collects streaming royalties on behalf of the owner of the master recording (usually the record company). 50% goes to the label, 45% to the featured artist, and 5% to the non-featured musicians and vocalists.
Internet Radio (Broadcast performance license)	XM Radio, etc. as above.  This is the fee paid because it fits the legal definition of a broadcast.	These fees are collected by the performing rights societies (ASCAP, BMI, SESAC) and are paid to both the publisher and the songwriter.
Video Games	X-Box, Wii, online games, mobile apps	Publisher negotiates the fee directly – usually a ‘buyout’ (one-time fee for unlimited use)
Ring Tones	Treated as a mechanical license, these are short portions master recordings used to identify callers musically.	Carrier keeps half the money, record label gets the other half, and pays the statutory rate (24 cents) to the publisher.

So now you know.

Anyone who’s recorded with me has heard this. But in case you should need a refresher course, here it is.

In the mind of the public, music is free. There are many reasons to record and publish music that don’t have anything to do with making money, but IMO if you want to make money with music you must package your music with something of value that cannot be reproduced digitally.

There. That’s the gist of it.

The History

Until the late 1960’s the only form of recorded music was the phonograph record. It was not portable. It could not be reproduced by the ordinary listener. Then the cassette tape was invented. At first the sound quality was inferior to the phonograph record so the music industry ignored it. But soon the quality DID improve and the fact that it allowed the user to compile a tape of their favorite music from different sources and carry it around made it more popular than the phonograph in a matter of a few years.

The music industry got legislation passed that allowed an addition of a royalty to the price of blank cassette tape as a form of compensation for the sales lost due to consumer home taping. The money generated from this went into a big pool that was distributed according to the record label/artist’s sales of real product. The more popular labels/artists got more of the pool.

Then the CD came out and we were back in the days of the phonograph. It could not be reproduced by the listener, could hold more music, sounded cleaner, and could last longer. But the invention of the CD burner changed things again. Now the consumer could make digital copies of their favorite music again, just like the cassette days. And just like the cassette days, the labels got legislation passed that allowed an additional royalty to a certain type of blank CD called the “music CD.” (The truth is that except for a header that identifies the disc as a music disc, there was no difference between this type of CDR and a data CDR except that some standalone disc burners would not burn to a data CDR. They were crippled by their manufacturer.)

Today

The internet and the MP3 changed things again. Again we have an inferior format (MP3) that is more widely used than the higher quality CD because of its portability. We think nothing of sending entire songs via email, downloading hundreds of our favorites to our hard drives and MP3 players, listening to customized internet radio, etc. So for the time being, because of the ease of digital copying, the value of recorded music is approaching zero.

On the other hand, people still pay real money for things they need like clothing, food, shelter, gasoline. So it follows that by packaging your music with something of value that cannot be reproduced digitally, you can make some money. What kinds of things am I talking about? Here are a few examples.

• Your live performance. It exists at a point in time that will never happen exactly the same again. In order to have a memory of the performance, people will buy a physical item like a CD, tee shirt, hat, etc.
• Trademark your hook If your song has a trademark-able hook, take advantage of it. Example – “Margaritaville” by Jimmy Buffet spawned an industry of items for him. Not only was the song popular, but in the decades following its publication, there are now Margaritaville restaurants, bar supplies, clothing lines, retirement communities and more. Why? Because the title identified a lifestyle.
• Niche markets like specialized groups and charitable causes are places where your music can be considered a rallying cry or an anthem for the cause. People will support the cause by purchasing your music outright. But if you can add to that with something physical, it will mean even more. One example is the song, “A Song For My Son” written and published by a mother of the groom because there were no wedding songs with that subject. She packaged the CD with a small booklet that could be signed by friends and family and kept as a keepsake.

These are just a few suggestions. I’m sure that people will not stop making music just because consumers feel they have the right to copy and distribute it without paying for it. I’m sure that at some point there will again be just compensation for creators. But for the time being, in this transitory stage, digital goods bring attention, and real goods bring real money.

If you have never heard of this site, I can understand. Just know that it is a HUGE resource for some great information.

Click here for the main blog page. The curated blog page is a list of over 250 posts going back over 10 years. Some of the topics may be dated, but many are still relevant even today.

I have talked to many of my clients about the line between music production and cowriting. You probably all know my views on this, but I wanted to put my rant into a blog as a reference. Hopefully this will help someone from making a bad mistake.

A lot of my clients have songs in their head and they don’t play an instrument.  They sing the melody to me, I record the raw version, and we go to work from there.  Their melody implies a rhythm. We talk about the tempo and the beat and I show them some examples. They decide what it was that was closest to what they were hearing in their head.

Their melody also implies harmony – chords. I’ll try some simple ideas suggested by the melody and again, they will tell me what is closest to what they were hearing. I see my part in this as a sort of musical detective – trying to uncover the rest of the music that wasn’t heard in the raw recording. I am NOT acting as a cowriter, but as an interpreter of sorts.

Sometimes I’ll hear something that the writer didn’t hear. I’ll play that, too, and if they like it better we’ll use it instead. Now, that is treading on the line, IMO. But they didn’t come into the studio looking for a cowriter and I don’t look at what I’ve contributed as earning me a part of the song even if it makes a drastic difference in the way the final product is perceived by listeners.

Some producers think differently. Afraid that they’ll miss out on a piece of the pie or some recognition, they feel that any contribution they make that isn’t specifically spelled out is cause for them to be a part writer in the song. I feel this is wrong, but at the same time there is nothing stopping the uninformed or timid writer from making a bad decision at this point and giving up part of their copyright.

No matter how the law may be written to protect your rights, if you enter into an agreement that is not to your advantage, you must live with the consequences. Case in point – when my song “Taking Our Own Sweet Time” was recorded by the Kinleys back in the 90’s, the record label sent me a form that stated I would agree to being paid a sub-statutory rate on my royalties. The choice for me was whether to sign an agreement that earned me less money than what I was entitled to, or not sign and be excluded from the album. I signed. I got paid. I’m OK with it, but I still don’t like being another victim of record label leverage.

So, understand your rights. But also be aware of your situation and what kind of leverage you may have. You may be able to negotiate and keep more of what’s yours in the first place.