I’m happy to have been quoted in this article by Paul Schrodt and the Business Insider.
Please take a look here: http://www.businessinsider.com/blurred-lines-case-music-copyright-2015-12
What if your now deceased spouse, parent or grandparent entered into a publishing or record deal and the termination period is coming up? Do you have any rights to the masters or underlying compositions? As we know, copyrights can be left to an estate (think Jimi Hendrix, John Lennon, Bob Marley, etc). So, the answer is “yes.” Let’s take a look at how this works.
First, remember, for post 1978 works the termination for an assignment (not a work made for hire) is 35-40 years after the grant was made. Feel free to take a look back at the first installment of this subject (Click Here for First Installment) to get reacquainted with the time frames. Assuming the time frame is coming up, what can you do?
Let’s look at who can terminate. The original author or creator can obviously exercise the right to terminate. However, a surviving spouse and children can also terminate an assignment. If the children are deceased then the grandchildren of the author or creator can exercise this right.
100% of the termination rights will be divided up between the spouse and children or the spouse and grandchildren, as the case may be. The way this is divided is 50% to the surviving spouse and 50% split equally among the children or grandchildren. Let’s look at a couple of examples, shall we?
1. Surviving spouse with no children.
2. Surviving spouse with four children.
3. Surviving spouse with no surviving children and three surviving grandchildren.
Again, in all of these scenarios, the spouse has 50% of the termination rights. In #1 the surviving spouse has 100% of the termination rights. In #2 the spouse has 50% and each child has 12.5% of the termination rights (50% ÷ 4) . Finally in #3, the spouse again has 50% and each grandchild has 16.67% of the termination rights (50% ÷ 3).
Why do these percentages matter? Well, to serve proper notice and to exercise termination rights, over 50% of the interests in termination rights must agree and serve notice. You see how this can cause some family strife, right? If you thought Thanksgiving dinner was stressful, can you imagine this conversation? “I am happy with the royalties we are getting, let’s just leave this alone.” Your sibling, “I want these copyrights back because I think we can do a lot more with them and preserve Mom’s legacy. Can you pass the dinner rolls?”
This is all assuming the spouse wants to terminate. What if the children or grandchildren want to terminate and the spouse does not? Or what if the spouse wants to and none of the children or grandchildren want to terminate? Pass the wine, please.
If the spouse wants to recapture the copyrights, he/she must convince at least one child to join him/her. More wine please.
Assuming everyone agrees to terminate, this would not be an issue. It is just something everyone should be aware of when dealing with copyrights and recapture.
Next up in the series is dealing with works written or recorded prior to 1978. Stay tuned.
Suppose you are a publisher or a record label and I am a 25 year old writer or artist. You are impressed with my music and we begin talking. After a couple of weeks of proper courting we decide to consummate the relationship. You present me with a contract. The language states you give me money as an advance; in exchange, I give you my music and the copyrights linked to the music for the life of the copyrights. This seems like an awfully long time, no? After all, life of copyright is 70 years after my inevitable death. You, as publisher or label, want me to assign my copyright to you, basically, forever. So, assume I sign the contract in ink (or blood or something). Is that it? Will my work remain with your company for the next 100 years or so? No. Not necessarily.
Despite what many think and despite the language of the contract, you may be able to get your copyrights back. There are strict time lines and certain formalities that must be followed; which, if done timely and correctly, will result in you getting your copyrights back. These guidelines are set forth in a little discussed portion of the 1976 Copyright Act (Section 203 to be precise). Note: This does not apply for works made for hire which we will discuss in a future post.
Section 203 provides a chance for authors to terminate their assignments and recapture their copyrights. For works after January 1, 1978 (the year the 1976 Act went into effect) grants, assignments and licenses can be terminated during a five year window starting 35 years after such grant was made. For the termination to be effective a letter requesting that the copyrights revert must be sent no more than 10 years prior and no less than two years prior to the effective termination date. There are certain other formalities such as recording a termination notice with the Copyright Office.
Here’s how Section 203 works: suppose a song was written and assigned on January 2, 1978; the writer could get his/her copyright back between the years 2013 – 2018 (1978 + 35 years + 5 year window). Termination letters could be sent beginning in 1993 and no later than 2016 (10 years prior to 2013 and less than two years before 2018). If done correctly and timely, publishers cannot deny these termination letters. As an added bonus you cannot waive your rights in advance. Thus, the contract you had me sign granting you my copyrights for life of copyright would not affect my right to recapture my copyrights. In fact, right now, there are writers and artists in this exact position requesting their copyrights revert back to them. However, if you do not send a proper termination letter during the proper time frame, the contract will then go back into effect and the publisher or record label would continue to own your copyrights for life of the copyright.
So what’s the big deal about getting your copyrights back? What do you do if you get your copyrights back? Suppose you don’t have any business experience and have no idea what to do to market and get your material out to the public? Fear not readers. You can use this as a negotiating tool. For example: suppose your contract allowed for a future advance of x dollars and a money split of x%. Well, you could renegotiate all your terms. You could ask for three times x and a money split of x+10%. I will let you fill in the x’s, percentages and numbers until you are happy because that is how you could (and should) handle negotiations of this type. You should see what would make you happy to stay with the same company. Another option would be to take your copyrights and move to another company on more favorable terms. Yet another option would be to recapture your copyrights and start a company to start selling or licensing your copyrights. There are countless options available if you decide to recapture your copyrights.
It is important to remember the value of a label or a publisher is the value of the copyrights it owns and controls. Think of how many albums the Beatles, Stevie Wonder, The Who, Led Zeppelin, Ray Charles, etc. still sell (click here to read about the revenue still generated by Ray Charles). Think of how many times you hear those same artists on the radio or in movies or on television or in video games. (Labels currently do not receive money for terrestrial radio play. Please see the post on the Performance Rights Act). Now, you may not be as well known as the artists just mentioned but think of how much you could do if you had the rights to. A label usually only pushes an album for about 12-18 months; after that the album slowly fades into obscurity. However, they still own the copyrights. If the label does not push it; no one can. Now, if you had your rights back you could go out and try to get your music placed on television shows, movies, video games and commercials and reap 100% of the money. There are several companies out there that pitch and place music in all these areas (for a fee or commission). Another source of income could be repackaging and selling your album yourself. Whether it is on iTunes or at the local indie shop; you could sell your own cds and keep your own money. No one will ever care about your music more than you. If you are back in control of your songs and master recordings, your music may get a new push and find opportunities you never thought possible.
This is an exciting time in the music industry. Every year new writers and artists start entering the termination period for copyrights. New business models, new marketing techniques and new interest in older songs are going to emerge. I, personally, cannot wait to hear a great song that some label or publisher forgot about back in 1978.
This is an extremely interesting and complicated issue. We at L4M will have many more articles about this issue and how it relates to you. Future posts will discuss pre-1978 works, sound recordings, works made for hire, heirs’ rights and the importance of record keeping. Stay tuned…
In the new era of the music industry, one of the most lucrative revenue streams for musicians and publishers is licensing. With the ever increasing number of media outlets (television stations, websites, web radio, satellite radio etc.), there is a matching need for advertisers to discover and use music. What was once a selective club reserved for big bands and huge songs has now become a way for virtually unknown artists to make an actual living writing music. Yet to most musicians, the mechanics of licensing remains a mystery.
Music supervisors are some of the most important and influential people in the music industry (and they know it). Supervisors are hired by networks, shows, movies, production companies, ad agencies, etc. to find the perfect music for their project, and get the rights to the music that they discover. Supervisors get hit up by labels, publishers, bands, managers, guys on the subway, your mom, etc., so grabbing their attention is not exactly an easy thing. As with most things in this business, relationships are super important. If you know a supervisor, or even know someone who knows someone, you have a marginally better chance of having your music heard and possibly used for a placement.
However, because of the changing attitudes and, more significantly, the changing budgets of networks and shows, supervisors are not the only way to get your music placed. There are a ton of productions that do not use a typical supervisor in the role of finding and placing music. Independent movies, lower budget cable shows, webisodes and more will have a producer, assistant or intern try to find music to fit into their production. Of course, these productions do not have a budget to spend thousands per track so they will not be shopping for label affiliated music. While the upfront money for these placements are not huge, the exposure and long term earning potential can be significant.
Now, let’s say you were lucky enough to have your music selected, what can you expect? You probably won’t have a lot of negotiation power but you should check with an attorney or your manager to see what you can get from the license. A typical license will pay the writer and performer of a song a fee for use of the song. The sync and master fees vary depending on the type of license. For example, a license that uses a track in a tv show may be $2,000 ($1,000 for the sync and $1,000 for the master). 2k for the use of a song is not bad, but where the writer stands to make additional money is with the performance royalties that accrue every time the show is aired on television. Your ASCAP or BMI statements will definitely increase if you land one of these licenses. Oftentimes, the performance royalties will generate more income than the upfront license fees.
There are more benefits than just the money your license will generate. If you land a song on a heavily watched tv show (think Jersey Shore) the exposure can be tremendous. Millions of people that may not otherwise hear your song will have plenty of chances to hear it, as Jersey Shore seems to be on eight times a day. Additionally, if you can get your name and the name of the song on screen as well as the show’s website you can significantly increase your fan base. Song downloads, cd sales and show attendance can grow exponentially from a good tv placement.
So keep doing what you need to do to promote yourself (touring, publicity, marketing) but add licensing to your arsenal.
Songwriters and producers need to take note. Our friends at Songwriteruniverse.com certainly did. Follow this link to an article penned by L4M (Ajay and Josh). The world of copyright and recapturing your own copyrights is massively confusing. Stay tuned to L4M and our friends for more guidance.
L4M have a close and personal relationship with the band Madina Lake. Recently, Matthew Leone was a victim of senseless violence. Just moments before Matthew was beaten up, he successfully stopped the criminal from beating his spouse. His story is all over the news and tons of fans, colleagues, friends and other good samaritans out there have come to his aid. Click here for an NME story about the incident.
As part of the effort to help Matthew get back on his feet please follow the link below
or go to:
What happens when an artist decides to “help out a buddy” or lend a verse or bass line on the whim? Most of the time not much, but sometimes, the song ends up in places you never imagined; like in a movie, the internet or as a commercial jingle for a new adult diaper.
The more popular you or your band get. the likelier your friends or your acquaintances will start asking you for stuff. Everything from showing up to their concert, to posing for pictures, to recording a song. Think of it like a lottery winner finding out that he has third cousins, twice removed, that are in desperate need for money to fix their trailer. An endorsement or involvement from a popular musician is worth a dozen or so trailer repairs.
Here’s the problem, if you don’t set out the terms of the music that you nonchalantly give away, it may not be clear who owns it. Lending your voice to a song might qualify as a “featured” artist or it might be it is your creation which actually “features” your buddy who asked you help out. Without clearly stating whose song it is and what percentage split you will receive you are asking for trouble (usually in the form of a law suit).
One easy way to fix the problem is to simply register the song with the copyright office either before (as a pre-registration) or immediately after recording and release. Both the lyrics and the sound recording itself can and should be registered with the US copyright office (www.copyright.gov). The fee is only $35 and it can all be done on-line. The form is a bit tricky but with a little experience and guidance, it’s a no-brainer.
Registering the song as a copyright not only provides statutory protection in case the song is ripped off, it also clearly identifies the author of the song, the performer of the song and if there are any other entitled people involved (samples/publishers). The approach for any musician who is asked to participate in someone else’s song is that she will not lend her voice until the copyright registration is filled out.
The next step is to register the recording with your publishing rights organization. This will also allow you to identify who owns what for an individual track. Whether it is BMI, ASCAP or SEASAC, registering a title with a PRO not only allows you to collect every time the song is publicly performed (not in a concert but over the radio, tv, internet, etc.) but will end any debate as to who actually owns the song.
Creating music is clearly a creative process. Collaborations bring about some of the best music. Think of the hip hop and R&B world. How many songs are currently featuring Lil Wayne or have Ciara singing a verse? The formula for featuring another artist is a time tested winner. But just as with everything else in the music industry, set out your creative collaboration in writing before you enter the studio. It will allow everyone, especially your lawyers and managers, to sleep better at night.