How Copyright, Licensing, and Common Sense Can Help You Survive in the Music Business
It’s one thing to face an audience with the sweaty upper lip of performance anxiety. It’s quite another to lie awake worrying about having your music ripped off or being taken to the cleaners by some faceless corporate suit. Can’t help you today with the stage jitters. But here’s an introductory handle on some music biz clout to help you get to sleep after the gig.
Do you perform your own material? Do you have a recording to sell at gigs or one in the works? In a perfect world, you would be the undisputed author of all your original material and would be paid by everyone everywhere who uses your music in any way. Sound unlikely? Happily, it’s better than you might think.
You need three music industry allies: The U.S. Copyright Office, a performing rights organization like ASCAP, BMI or SESAC, and an arts attorney. The Copyright Office will give you control of your work. The performing rights organization (or PRO) will see that you get paid when your music is performed out in the world. Both are easy and inexpensive to deal with and are absolute musts for your success. And an arts attorney can help you with more than contracts. So let’s meet each ally in turn.
Copyrighting a song or an album won’t get you paid anything by itself. But it will compel anyone using your work to pay you the going rate. A copyright, registered with the U.S. Copyright Office, is the universally acknowledged declaration that you are the original author of your work. It is good for your lifetime plus 50 years. And in addition to the certificate of authorship, your $30 registration fee buys you the considerable might of U.S. copyright law protection.
So when should you copyright your work? Register any original musical work that goes out in the world, whether performed by you, written out by you, or recorded by anybody. If you wrote it, the composition is protected. If you recorded it, your unique arrangement is protected. If you’re trying to get a song picked up by an agent or another artist, make sure you copyright it before you show it around. If you’re sending out a demo in hopes of a record contract, make sure it’s copyrighted before you present it.
Now, the cool thing is that for $30 you can copyright a single song, an album full of songs, a demo, or every song you’ve ever written. You use the PA (Performing Arts) form for an unrecorded work or collection of works and the SR (Sound Recording) form for any recorded work. These forms are downloadable from the Copyright Office website and easy to fill out. What written materials or recordings you must include with form and check are clearly explained.
You can copyright a demo or a transcribed collection of songs as a “work in progress.” This gives you total protection while you shop your stuff. Then, when you land a record deal, you’re allowed to copyright each song you record again separately. This gets you clearly into the massive Library of Congress database so people can find you if they want to cover your music. It also keeps your songs tidily separate for reference by PRO’s or in case anyone wants to negotiate for special rights. Careless musicians have often sold the rights to one song, only to discover that they’d lost control of every other song that shared the copyright. In the long run, separate registration is worth the money.
You have likely heard of the “poor man’s copyright,” which suggests that you avoid the fee and just mail your song to yourself in a sealed envelope. There are two things wrong with this dodge. First, it’s never been tested in court. Second, even if you win an infringement case this way, since there’s no documented copyright, you lose out on punitive damages, which can be up to $150,000 per proven infringement.
The joys of getting paid for your music
There are two kinds of royalties: performance royalties and mechanical royalties. Performance royalties are paid for every commercial performance of a registered song (radio play, elevators, in-flight entertainment, video game soundtracks, corporate voice mail, and just about any other uses for music you can think of). Mechanical royalties are paid for every CD or other physical object sold that contains your music. Let’s take performance royalties first.
When you have a CD to sell or play on the radio, it’s time to join a PRO. You can choose among ASCAP (American Society of Composers, Authors and Publishers), BMI (Business Music, Inc.), and SESAC (used to be an acronym but now it’s just SESAC). Each of these organizations is set up to track every commercial performance of a registered song and collect a set performance royalty for each use. They take a tiny fee for their trouble and send the rest to you four times a year.
Which is best for you? Check out each one’s website for differences. They are all well-established and respected. Each has additional services to offer including workshops and showcases. Individuals can register with ASCAP and BMI for free, with small fees charged for more involved memberships or registering as a publisher. SESAC is more restrictive but worth a look. You may only register with one organization. In all cases, license fees are standardized so you’ll get about the same royalty whoever you sign with.
How much are the fees? You get about 6 cents each time a registered song is played on commercial radio. That may not sound like much, but it can add up if you get regular airplay. If your song gets picked up for a network TV theme song you can get up to $5 per episode multiplied by how many stations air the show. Nice, huh? BMI’s royalty information booklet is particularly clear and detailed. Check it out on their website.
Mechanical royalties are a little different, in that there is more maneuvering room for rate negotiation, at least with your own record company. But when someone else records a song you hold copyright on, they have to pay a standard royalty fee to you. If you’ve signed with a record company, chances are you’ll be working through or in partnership with their in-house publishing company. And chances are they have signed up with a mechanical rights organization like The Harry Fox Agency to track mechanicals. If you’re running your own show and are lucky enough to have others covering your material, you might want to register with a PRO as a publisher rather than an individual artist and then connect with Harry Fox to help collect all royalties you’re entitled to.
If, on the other hand, you’re the one who wants to record someone else’s registered song, that too is simple and relatively inexpensive. You don’t have to ask advance permission to record any song that’s already out in the world. You simply find out which PRO or mechanical rights organization represents the copyright holder. You pay a mechanical royalty of 8 cents per track per CD you manufacture (that’s $80 for a run of 1000) and send a letter and check to the artist directly or in care of the PRO. Again, you can find accurate current rates and other details on the Harry Fox Agency website.
When might you need an attorney?
It’s a good idea to invest in an attorney specializing in the arts if you want to market a band name or a record or production company name you’re not sure is unique. These questions involve trademark and DBA (Doing Business As) issues and vary from state to state. They are usually pretty simple to sort out if you know where to look and what papers to file. A well-connected attorney can do the thorough search you need much faster than you can.
An attorney can also advise you on the pros and cons of negotiating away any portion of your rights to a song or recording. You’ll almost never want to sell anything outright and almost never want to sign a work-for-hire agreement for your creative services. Get good advice when deciding exactly what to sell, how long the agreement should stand, and what your work is worth.
Another sensible use for an attorney is to scan any contract you’ve been given to sign. Record companies, even small ones, can trot out very long and involved contracts at first, loaded with boilerplate sections and filled with outdated or inapplicable clauses. It doesn’t matter how sweetly they smile. Get it checked. You’ll be surprised how much dead wood you can hack out. Most companies will happily delete unnecessary clauses. They just want to know if you’re paying attention.
There are several obvious areas where you’ll want to examine a contract with special care. Here are a few of the questions you’ll want to think about and then ask the record company representative when you meet to negotiate the changes.
What is the term of the contract? Some boilerplate contracts will lock you in for seven or more years. Keep the term short. You want the freedom to renegotiate or to go elsewhere if your career takes off and another company offers you a better deal.
How are royalties computed? Oh boy, this one has lots of wrinkles. For starters, does the company give you a percentage of net or gross sales totals? Neither is necessarily better. You just have to do the math and figure out how much you’ll get per unit sold. And check for any antediluvian clauses from the days of 78s (I’m not kidding! They still sneak them in sometimes!) that give you some percentage of 90% of the sales. The idea here was to protect the company from breakage losses when shipping product to stores. Happily, those days are long gone, and the contract clauses should be, too.
Then, how much product in the pipeline will they hold out and not pay you for until later? How will this be indicated on your quarterly royalty statements? Will they let you buy at a reduced artist price? If so, will you get royalties on the product you buy? Questions like these must be answered in plain English in the written contract. If it’s not clear to you, keep editing until it is.
But how can you know whether a company will deliver on the promises in the contract? Good question, and one not enough musicians ask before signing. One smart thing you can do is ask for the home phone numbers of some artists who have been with the label a while and phone them up and ask if they get paid on time. The company agent should happily provide the numbers. If they don’t, well, you just learned something important.
Finally, a good arts attorney will be able to tell you whether a contract indicates that the company plans to treat you like a member of the family or like an adversary. No matter how big the company is, if the contract leaves you with a squirrelly feeling at the back of your neck, don’t sign it. You’ll be better off self-producing and selling out of your trunk. At least you know you’ll pay yourself on time.
Contact Addresses & Websites:
U.S. Copyright Office
Library of Congress
101 Independence Avenue,S.E.
Washington, DC 20559-6000
One Lincoln Plaza
New York, NY 10023
8730 Sunset Blvd. – 3rd Floor West
Los Angeles, CA 90069
55 Music Square East
Nashville, TN 37203
Harry Fox Agency
711 Third Avenue
New York, NY 10017