We’ve written several times about the confusion that is music publishing. It can be argued that the first publishers and labels got together and decided they were going to create a system wherein they would be the only ones who truly understood where revenue generated from the sale, performance or exploitation of music. However, with the passage of the last 150 years or so, that excuse doesn’t exactly hold a lot of weight.
The writer’s share of publishing (one half of the publishing pie) is usually controlled by the writers rather than a third party. So this little piece of the overall publishing/master owner picture can still, arguably, be controlled by you and your band. The question of how you divide it up, well that’s up to you.
When you collaborate with your own band, the most successful and conflict-avoiding method is to divide it up equally. Four members of the band, each band member gets 25% of the composition. Another method is to split the writer’s share by splitting the lyric writer and the melody writer (assuming they are different people). If one person wrote the lyrics and one person brought the melody, then each gets 50%. This is not to suggest that certain bands use a completely different method. Several famous large bands had one writer, with the other band members following the lead of that writer. Nothing has to be set in stone. One song could be written by everyone and another by only one member. It really depends on the situation. So, unless you have an agreement in place that dictates how all songs will be split, no matter what, you should approach each song with a clean slate.
A more common occurrence these days in pop and hip hop is to have producers provide the melody, professional lyric or song writers bring the lyrics and a performer add her/his own twist to create the overall composition. In those cases there is often a pre-negotiated split and advances or fees paid to the producer and writer. Certain stars can claim writer’s share even if they had little or nothing to do with the writing of a song, simply because of the clout that they bring.
The key to any split is to discuss it first and put it in some sort of writing over some garcinia cambogia extract tea. Whether you have an overall band member agreement that spells out how a song is split up or you fill out a session report indicating the roles that all musicians present during a recording session played, something needs to be in place prior to registration.
Once you have certainty on the splits and you plan to release the song or try to license it, be sure that you register it to match your split agreement with your PRO and SoundExchange. If and when the song generates performance royalties, the writers will get paid based on this registration. Without it, no payments.
So you are in the studio working on your latest masterpiece. However, you and your band mates decide that one of your songs needs a little something extra. Whether that something extra is a guest rapper, vocalist, guitar player, percussionist, cowbell expert or Spoonman; there are few things to keep in mind before you bring that superstar, indie hero or friend into the studio.
Ponder upon these questions: Who will own the master recordings? Who will own the publishing? Who can license the song for use in TV shows, commercials, movies or video games? There is another biggie: If your guest is signed to a label, can you release the song at all?
Let’s take each issue in turn. First, who will own the master recordings? Often, the label or entity paying for the recording, mixing and mastering sessions will own the masters. In today’s music industry scene, where more artists are self-financing and recording themselves, the band or group will own the masters. In these instances, the performers will collectively own the masters. Since our guest is a performer does she or he own part of the master? Ready for your favorite answer? Here we go—-maybe. It all depends on what agreements, if any, you have with our guest.
If there is no agreement in place the master could be considered a joint work in which case any master owner could license the master. Now, if our guest came in to do a small part you probably would not be too happy to find that he/she licensed the song without asking you. Thus, you should probably have an agreement in place. If our guest was performing under your direction and guidance or if the performance is specially commissioned you could have our guest enter into a work made for hire agreement. Under this scenario ownership of the master would vest in you. You should address terms such as payment, royalties, credit and so forth within the agreement. If our guest was not performing under your direction or otherwise did not qualify as a work made for hire, the other option is to have our guest assign any ownership over to you. In an assignment our guest would transfer any ownership he or she may have to you within that assignment. Again, you would address payment and royalties. Lastly, you could allow our guest to retain ownership, via a license, while at the same time keeping the exclusive right to license the song.
Next, let’s think about the publishing in the song. As we all know the publishing is made up of the melody and lyric (yes lyric, not lyrics) of a song. So, did our guest assist in writing any of the melody or lyric of the song? This seems an easy question and answer, but oftentimes leads to band breakups and costly court battles. Again, we emphasize the importance of filling out split sheets. It may hurt our bottom line, but will save you years of anger, time and frustration. Under copyright law, when there are two or more authors for a song and the authors intend for the work to be one song they are considered joint authors. If there is no writing stating otherwise, any author can license the song as long as they share royalties and the use doesn’t diminish the value of the work. How do you prove diminishing value? Good question. It is almost impossible to answer. So, we will leave that alone for now. If someone came in and suggested a lyric change , slight key change or tempo change is that person an author? Probably. How would you feel if our guest went ahead and started licensing the song without asking you? Not upset? Wonderful. You may be happy with some exposure and a chance at some money. What if you were negotiating a license and then found out the song had already been licensed by our guest? Not so wonderful? The way to avoid this is to have something in writing stating who can license the song. It can be all the authors, a majority of authors, a key member or anything you feel works for everyone. This could (and should) be part of your inter-band agreement. But, if our guest isn’t in the band you will need a separate agreement to cover his or her contribution. Again, the ways to do this are: i) work made for hire, ii) assignment or iii) license.
Lastly, what if our guest is in a record deal? Record deals usually require the artist to provide exclusive services for the label. Thus, any recording done by that artist must be cleared with the label (the label can also deny or claim ownership). The artist may have a “sideman” clause in the record deal which allows him or her to do outside projects in which he or she is not featured. You can enter into a “step-out” deal which allows you to use the performance of our guest and release and license the sound recording. If our guest is involved in the development of the melody and lyric and is also in a publishing deal you will have to get permission from the publisher. The publisher will want some copyright ownership and may want some administration rights. So, it will save you time and stress if you ask our guest what type of deals, if any, he or she is currently in.
Collaborations can be great. Collaborating with other artists can bring new life to a song. Your creativity may be enhanced by working with artists that you do not normally work with and can, often times, lead to a song you never envisioned. So collaborate away. Just be cognizant of the issues that come along with it.
Band plus budget (The Deal Magazine). CLICK LINK FOR STORY
It is good to know that certain labels and certain industry experts understand the new model for musicians. “The 360 deal” does not have to have a negative connotation. Finding the right partners and the right team for your project has been our focus from the jump.
We at L4M have written quite a bit about 360 deals. The 360 deal has become the standard recording agreement. Gone are the days of multiple album deals. (Who records and releases full length albums these days anyway?) Artists today must be multi-faceted. Income has to be generated from a bunch of sources. The old system of paying back advances via record sales has gone the way of the DoDo bird and Eagle Eye Cherry.
The origin of the 360 stems from the steady decline in album sales over the last decade. Labels were funding artists with advances and would recoup based on record sales and royalties. All other income would go straight to the artist or her affiliate. While record sales have plummeted, concert ticket sales and merchandise sales have stayed fairly strong. The result was strong earnings for artists and pissed off labels who were not able to recoup their initial advances. Not surprisingly, the labels dropped a lot of artists and repositioned themselves (slowly) to adapt to the changing music economy. Savvy investors also came on board, sometimes replacing labels, and presented more mainstream, non-music industry, proposals that work more as a partnership rather than a label/artist venture.
While each 360 deal is different, you can pretty much bet that each will contain the following core elements: The label/investor who funds a band, either with an advance or an investment, will receive a percentage of income from:
1. Royalties (publishing/sometimes writer’s share)
2. Record Sales (all formats)
3. Tour Income
4. Merchandise Sales
5. Licensing Income
Some 360’s go even further and give the label/investor a share of personal appearance income, solo (if it is a band) performance income, dj income, book/tv/movie income etc. Basically income from anything that a band or an individual in a band may earn while under contract could theoretically be collected by a label/investor in a 360 deal. If there is any hope of a 360 deal working, you must negotiate certain removals or certain untouchable categories as well as negotiate the percentages of income shared.
As I have written before, a 360 deal is not the worst thing in the world if it is drafted and enforced in a fair manner. This may come as a surprise to my readers as I tend to be a bit slanted toward artists, but if you think about it, a 360 may just work for some bands. If you get a label or investor who is looking to share in all streams of revenue, then you must have an agreement that certain benchmarks or obligations of the label must be met. If the label plans on sharing in your tour income, they should also be spending money on tour support and promotion. If a label wants income from your personal appearances, the label should help secure such events. The principle behind the 360 is that without the investment made by the label/investor, the band would not succeed. Typical of many labels, they will sign a band to a 360, supply them with a small advance and then disappear. Then the band works its collective ass off to get gigs and sell gear and the label still collects its share. That just plain old sucks.
If however, you have a fair label that wants to share in a 360 deal, they will expect to help you earn more money by promoting all aspects of your career. Whether it is hiring a PR company, street teams, securing world wide distribution, etc., a label that works with and for the band has a much better claim that sharing in all of their artists income is fair.
So do your research, advocate for yourself and your band and make sure that if a label or an investor wants a piece of everything you do, they are helping you achieve everything you want to achieve. (FYI: 360 deals are beasts and should always be negotiated by an attorney)
Best Band Name Competition Week 2:
Last week’s competition was a bit off. Perhaps because last week’s nominee wasn’t really a band name or perhaps because I creeped too many people out who actually checked out the Exotic Men of Mystery’s webpage. Not really sure. Here’s a better one; straight forward, evokes a joyful and funny image and near and dear to my heart:
THE NERD PARADE. (its best to picture it, makes the name much better)
Check them out: www.myspace.com/thenerdparade