They're dancing to my music!

One day a John J. Emo was walking through a mall in Suburbia, USA.  As he followed his girlfriend into a Forever 21 he heard a familiar song over the cheap sound system.  Why was it familiar?  Because Emo wrote the music!

The next day Paula P. Techno was watching an independent horror film.  During the first slasher scene a somewhat terrifying and recognizable techno beat could be heard.  Techno, who had released her music for free all over the internet, had no idea how her music ended up in the movie.

Finally, somewhere in NYC, Hank H. Hiphop rode an elevator up to see his dad at his office.  Typical Musac was entertaining the passengers of the elevator all the way up to the 83rd floor.  Hank was dumbfounded to realize that his recording of Catch it Like it’s Cold had been made into an instrumental only masterpiece without his knowledge.

Are John, Paula and Hank a bit slow on the uptake?  Probably, but that does not mean that they are dumb.  The world of music publishing is also massively confusing.  For the independent artist, there are steps to take to make sure that you do not end up like these poor fools; potentially losing out on uncounted royalty payments.

Once you have made the decision to write music and introduce that music to the world (your bedroom mirror or your Aunt Grace do not count) there are several steps you need to take.  One of the first steps is to register you lyrics and music as copyrights.  This can be done for a sound recording and/or the lyrics of your song.  There is a relatively easy online application that is available on www.copyright.gov to fill out.

The next important step is to register with either ASCAP, BMI or SESAC (in the USA).   These organizations will help you collect and manage (to a certain degree) performance royalties that are owed to you as the performer of a piece of music.  So if your song was performed on Dancing with the Stars or on your local Morning Zoo radio show or even in the airport smoking area, one of these Performance Rights Organizations (PRO) is resonsible for collecting the statutory royalty owed to the writer, performer or composer of the song for the public performance of the song.

PRO’s are not fail-safe.  There are a lot of artists that feel that their PRO is not collecting everything that is owed.  However, think about how tough of a job that is these days.  How many media and consumer outlets are there out there that utilize music?  While every person, entity or business that publicly performs music (over the airwaves) is supposed to report the playlist to a database, it is nearly impossible to keep track of everything.  Trust me, the PRO’s do 110% better than an individual on his own.

The next step in capturing your publishing and maximizing the value of your publishing income is to form an entity.  I’ve written about the need to form an LLC in the past.  Publishing is yet another reason to do so.  Your LLC will become your first publishing company and will collect royalties for your music.  If you are in your band, you can register the LLC with the PRO.  That way, the payments go to your LLC and will be split amongst the band members that own a piece of the LLC.

Another advantage of forming an LLC to act as your publishing company is negotiation power with other large publishers (EMI/Sony/Warner).  You may get a better split with a publisher if you have already formed and registered your music under your LLC.  Instead of signing up with a major publisher and giving up 100% of your publishing for an advance (not that anyone has money for an advance these days), you can negotiate a better split.

Last week I was on a panel with other lawyers, a musician and publishers.  We all seemed to agree that the music world is changing and the major label system is beyond repair.  The do-it-yourself artist is a reality that is here to stay.  But many musicians who are used to having a label handle their registration and publishing do not know what steps to take.  This has allowed for an enormous amount of royalties to go unpaid as well as copyright infringement to go unchecked.  Throughout this whole process of making music, an artist will need help and guidance.   Instead of a label coming to the rescue, now the artist is charged with creating his or her own team of experts.  Just like any other business, services have to be outsourced.  No one would expect a doctor to be able to play the bass.  Similarly, a drummer probably does not know corporate level taxation.

Consult with experts.  Find your PRO.  Hire a lawyer.  Hire an accountant.  Treat the music like a business.  Whether it is losing opportunities or not collecting what it is owed, without the right team, the D-I-Y artist will see her career D-I-E.

Here lie unprepared D-I-Y musicians