Whether you follow the music industry or not, it has been hard to avoid the ongoing saga that is Taylor Swift. There are hundreds of articles out there about all of the particulars and specifics of Taylor’s ongoing fight with Big Machine, the Carlyle Group and, most publicly, Scooter Braun. (Here’s one.). While relating to a super star who has a catalog worth $300,000,000.00 may be difficult, ownership of your art is infinitely relatable to musicians.
Let’s start with the basics. For the purposes of this article, we will focus on a traditional label recording agreement. When you sign a recording agreement you are agreeing to sell your recordings (the “masters”) to a label. They label will require you to deliver a certain number of records or albums over a certain period of time. In exchange they may pay you an advance (a loan against the money that is earned from those records) and will agree to pay you a certain percentage of the revenue that is earned from the exploitation (sales, streams, licenses etc.) of those records. That percentage will only be paid after they recoup all of the money that they have previously paid to you as an advance as well as amounts paid to record that music and oftentimes, to promote or market the records.
So that is how the money part of a recording typically works (more or less). The term of a recording agreement is a whole other animal.
Let’s use Ms. Swift as an example. Her original deal with Big Machine was to deliver 6 albums. She completed that delivery at some point in 2018. She recouped shortly thereafter (obviously). So she was free to go explore the market as a free-agent. But here is where it gets interesting and where many of our clients get confused. Just because the term of the recording agreement expired does not mean that the label gives up ownership of the records that were already delivered. That ownership is perpetual (aka forever). On top of owning the masters forever, Taylor’s recording agreement (as with most of them) had a restriction on re-recording of the masters. That means that for an extended period of time, Taylor cannot re-record any of the songs from the albums that are owned by the label. This restriction has led to the current and very public dispute with Scooter over whether Taylor can actually perform any of the songs owned by Big Machine/Scooter/Carlyle at the American Music Awards where Taylor is being honored for her legacy as a recording artist. Why would she be prohibited from performing these songs? Scooter and his squad were making the argument that the AMA’s will be recorded so that the re-recording restriction contained in her contract prohibits the performance. This has since been resolved and Taylor will be able to sing her heart out on all of her past hits at the award show.
Again, Taylor’s struggle is not exactly one that most musicians face. Most musicians do not experience a major venture capital firm (Carlyle) headed by one of the most public and powerful music industry moguls (Scooter, who also happens to be sworn enemy of Taylor’s), purchasing their legacy of master recordings for hundreds of millions of dollars. However, anyone entering into a recording agreement should know that they are selling, assigning and transferring the copyright and ownership of her recorded music to a third party. Accordingly, they will not own and certainly will not be in control of their past art.
For some, selling their art is not an issue. It is a centuries old practice that extends beyond music (think paintings, sculptures, movies etc.). However, for others it can be a tough pill to swallow. For those musicians who are aware and informed of the current financial model for the music industry, they know that owning their masters is not just artistically important but financially significant as well. So what is an artist to do?
First off and most importantly, know what you are signing. Find someone who has experience dealing with this fact pattern. Whether that is a lawyer or manager or just a musician friend, consult with them and ask questions. Further to that point, ask the people that you are considering signing with what their intention is. If the language of the agreement doesn’t match that intention, you should probably run away; quickly. Second, know that there is no longer just one type of recording agreement. The days of standard completely one-sided recording agreements are dead. While labels will always try to get the most out of any signing, musicians have options. There are license deals where you essentially license your masters to a label for a set amount of time. Once that time is over, the master revert back to you. There are deals to be struck with distributors. Distributors of music will fund artist projects without taking any ownership and simply recoup off of the streaming revenue that they are earning by distributing your music. There are a lot of carve outs and exceptions that can be drafted into a recording agreement that can solve for the situation that Ms. Swift has found herself.
If you are Taylor Swift today versus Taylor Swift at 15 you not only are ridiculously successful and rich but you are operating without a tremendous amount of leverage. Her new deal with Universal/Republic undoubtedly contains language that allows her to share in the ownership of her new masters or at the very least allots her the ability to buy them back at the end of her term. So while you may not have her catalog and leverage, you can at least arm yourself with knowledge, understanding and a team to help you navigate your way to Swift-like stardom!
As we have explained we work with clients in every segment of the industry from musicians to managers to labels to distributors and more. Because of our diverse client base and years of experience, we are able to recognize certain trends, hot topics, common misconceptions, and red flags while working within the music world. Each month we are going to look to highlight one of these areas that, to us, have a deep impact on an artist’s career as a musician.
Sometimes speaking out works.
@SoundCloud listened and modified its new artist contract.
Thanks to some solid journalism (take that #fakenews), and the power of artists and their representatives (like yours truly), SoundCloud revised its new artist monetization agreement. The program introduced by SoundCloud four years ago allowed select artists to earn a share of ad revenue and subscription fees by monetizing the use of their music. Finally ready to go to the masses (and keep up with competitors), SoundCloud announced the ability for all Premier Members to monetize. With the announcement came a long form, click-through, agreement. That agreement left quite a bit to be desired.
The biggest outcry from the artist community was over a “Covenant Not to Sue”. Basically this means that if SoundCloud screwed you in some way, you would have no right to seek retribution in court. We were less concerned with that clause as we were with the completely ambiguous payment schedule, the improper method for notifying artists of changes to payment terms and the extremely short amount of time to review statements (if and when the statements were ever delivered). While the Covenant Not to Sue is concerning, there was arbitration language included which offered artists the ability to challenge any issues with SoundCloud through the arbitration process rather than in court. There is a definite difference between a law suit progressing in court versus a matter in arbitration, but it is not extremely unusual to have this type of clause in this type of agreement.
The ambiguity was far more concerning to us. How can anyone agree to enter into a business relationship where the party who is owed money has no idea when or how they are going to get paid? How could you agree to enter into an agreement when you aren’t sure if the agreement has been modified and you could actually be earning less than what you originally agreed to? To us, these types of unclear and unfair terms were the main issues with the SoundCloud artist monetization program.
With the help of @verge and others, SoundCloud, took heed and modified its agreement. Unlike our current government, when the people are outraged and nothing gets done, SoundCloud reexamined its agreement, agreed there were fundamental flaws and took the necessary steps to make the needed changes. Kudos to a company who caters to musicians for actually listening to musicians. I hope this trend continues.
Maybe it is a millennial thing or maybe it is just a product of the industry but we consistently hear several things from new artists that are trying to make it to the next level:
“I need a manager”
“I need a label”
“I need a publisher”
Sometimes there is a need for one of these. Sometimes there is a need for all of them. But when does an artist really need a publisher?
We think there are only a couple of situations where a musician who writes music truly needs a publisher rather than self-publishing:
1. You are a top-line (lyrics) writer or producer that needs a publisher to set up writing/recording sessions with other similar or more established writers or producers.
2. You are in need of a substantial check as a loan/advance.
Going in reverse, the only way you are going to get to #2 is if you have a previously released catalog of music that is making substantial revenue on the publishing side of things (actual record sales, licenses, performance royalties etc.). Obviously, easier said then done.
So in our opinion #1 is probably the best and primary reason that an artist should consider or seek out a publishing situation. If you are a writer/producer that either writes for him/herself or has written for another artist and your goal is to try to continue to do so or write with writers who have credits on gold/platinum albums, a good publisher should be able to facilitate this. They should be able to pair you with established and up-and-coming artists that have budgets behind them. Getting in with those artists and getting music actually released with a budget for radio/pr etc. obviously builds your own value and the value in your publishing.
As many of you know, getting tracks to the top artists is incredibly difficult. Even if you have a direct line to the artist you still have to get through the artists, management, publisher and label to even have a shot of getting a placement on that artist’s album. Getting a writing session with the artist is even more of a challenge.
If you are at the point where you have the chops, you have a history of writing really solid music, your previous writing is actually earning you some money and you can write for other people, you want to make sure that you are doing everything you can to maximize your value and that of your publishing. We have so many stories of writers/producers that were involved in big songs that weren’t credited the right way or were left off registrations for some reason or the other. So making sure you are handling your publishing yourself is the first step in preparing yourself to even be considered by a major publisher.
Please don’t get it twisted (as the young folks say), if you self-publish you better be able to administer your works or have a lawyer/manager who knows how. Without registering your music with the PROs or securing correct split sheets or hounding labels for statements or hitting up independent artists who have used your music, you are essentially lighting money on fire. You have to know what rights you have in and to your publishing and how to go about collecting it. Registering works is not complicated. Understanding how and when you get paid from those works is.
There are several companies popping up that are offering admin services. Some are directly tied to the big publishers but then you have companies like CD Baby and Tunecore rolled out an admin service and functions a couple of years back. Songtrust is another one that offers a ton of services including administration of publishing. We have clients that have positive things to say about each one and those that have negative things to say about each one. So we will leave it up to you to decide if one of these outlets is right for you.
Remember, if you write a song and do nothing to register it or attempt to collect on it, it’s not really “published”.
Just like everything else in music (or most industries for that matter) you have to work your way up. You won’t get a publishing deal that makes sense unless you have already proven yourself as a writer. It is tough to prove yourself as a writer without getting a break in a very competitive industry. But you won’t get a break at all if you don’t treat your writing like an actual business and get the people you need to be in your corner to help you do so.
As you know, typically we write about protecting your rights. This post is about musicians, of all types, having the right to make music in any format he or she may want.
Every decade or so a new type of music becomes popular amongst the teen to twenty-somethings. With the onset of a “new” hot genre of music an inevitable reaction is harsh criticism. The thirty-plus-somethings who still are fond of the trend that was tops when they were of a “taste-making” age cannot help themselves and shred the quality, craftsmanship or artistry of the the music trend du jour.
I guess it is a right of passage; you get to a certain age and you automatically are permitted to present your opinons on why whatever is hot right now sucks compared to what you like. In my formative years, rap took shape and took over. When I started rolling around in my Chevy Citation with a sideways tape deck and front-only speakers blasting Poor Righteous Teachers, De la Soul and NWA (when I was feeling especially hard) I definitely got some nasty looks from inhabitants of my white-bread suburb of Minneapolis. I immediately dismissed my parents and other elders who disclaimed that Rap was nothing more than unoriginal shouting and noise. They (Parents) just didn’t understand (thank you Will Smith).
Every generation has a similar story. Elvis and Chuck Berry were nothing but trouble makers with all that electronic nonsense and rotating hips. The Grateful Dead, Jefferson Airplane and the Almond Brothers were pot smoking hippies who made noise that was only audible to people on acid trips. Ramones, Sex Pistols and the Misfits were screamers who couldn’t play more than one chord on a guitar. Hair bands came about, and well…I don’t know what to say about hair bands. The point is, every generation has its own thing, its own view point on music and society. That point begets the counter point that the preceding generations typically hate the succeeding generations music and viewpoints.
Enter Electronic Dance Music. EDM has taken the world by storm. DJs who seemingly have no traditional musical ability or knowledge are selling out tours and arenas with their version of music. Is it melodic or overly complicated in production and writing? No. Will it stand the test of time? Maybe. Is it actually music at all? Who cares?
Kids love it and are paying to see it. Yet, the music industry cannot help but get in the way of itself. Complaints by critics and label execs complain that it is destroying the professional musician and his/her chance at a career. Stories of musicians making less money because of the large number of computer programmers currently “acting” as imposter musicians are all over the industry blogs and postings. Complaints of so-called talentless button pushers are rampant amongst the “purists”.
What we can’t seem to understand is why are all of these critics complaining about anyone in the music industry making money? Jealousy is the obvious answer. Laziness or stubbornness are additional answers. The point is, in an industry that has completely changed in the past 15 plus years, another change in popular genres or fan patters should not be surprising. EDM is just another example of a new generation making a choice of what it wants to party and dance to; nothing more. No one is saying you should listen to it and no one is forcing you to buy a dub-step or die t-shirt. Just don’t hate on the kids that do.
EDM has had a huge impact on recent sales from pure DJ’s like Skrillex and Bassnectar to the EDM producers like Guetta and Afrojack. The Pop world has embraced it with acts like Bieber, Usher, Britney and Madonna jumping on the bandwagon and incorporating Dubstep and EDM styles into their major label releases. New festivals and concert series are popping up all over the place and bringing in huge revenue for the promoters, vendors and, oh yeah, the musicians.
So whether you can get down to “wub wub wub” or it makes you stroke out, try to accept it as the natural evolution of music. If you make EDM music, do what you can to learn the ins and outs of the music industry. If you are good, no doubt the late to the party label folks are coming around. Know what you are getting into before you get into it. Your music, whether created on a piano or a keyboard, carries the same rights as any other music. Make sure you protect it and make sure you cash in before the next craze takes shape.
Update: Check out what Coldplay’s Manager has to say about the Spotify Conundrum: CLICK HERE FOR DIGITAL MUSIC NEWS ARTICLE
To stream or not to stream? That is the .0007 cents per stream question.
Recently top name bands like Coldplay, The Black Keys and Arcade Fire have spoken out against streaming. Citing the “gross underpayment” to artists per stream, bands are pulling their music from sites like Spotify or simply prohibiting the placement of their songs altogether.
Let’s look at some projected numbers from streaming on Spotify (courtesy of Digital Audio Insider):
Spotify Per-Stream Payouts August 2009 to March 2011
Smallest: 0.02056 cents
Largest: 1.1456 cents
Average: 0.2865 cents
These numbers are strictly estimates and we have heard that some of the deals that major labels have entered into with Spotify have the per stream at a MUCH lower number then those above. Regardless, to make some actual money through Spotify, an artist will need millions of streams. No problem for Justin Beiber and Lady Gaga, but what about the little guy? Apparently, it’s not just the little guy that is worried/pissed. As mentioned above, Coldplay and The Black Keys have been very vocal about their overall disdain of streaming providers. In a recent VH1 interview, The Keys drummer said the following:
“We decided for this album, to not allow streaming services to stream the entire album,” Keys drummer Patrick Carney said. “It’s becoming more popular, but it still isn’t at a point where you can replace royalties from record sales with royalties from streams. So it felt unfair to those that purchased the album to allow people to go on a website and stream the album for free whenever they want it.”
Independent labels and artists are outraged with the seemingly enormous underpayment to artists and there are consistent stories of indies pulling their music and catalog from the site. The question remains however, will their protest pay off or are they really missing out on a new untapped method of reaching millions of fans?
The founders of Spotify continuously hammer home the message that their’s is a music discovery tool. By having all the published music in one spot, fans will be able to discover deeper cuts or new artists or even new genres of music that they didn’t already appreciate. Following their logic, once you discover these things your are more apt to actually go out and purchase your new discoveries or better yet, go to a show the next time the “new” band is in town.
From personal experience, I actually tend to side with Spotify (probably not the most popular opinion on this site). You can stream virtually every song known to man somewhere on the Internet. Whether it is on YouTube (the new radio for kids), Pandora, blogs, hacker/torrent sites or on artists’ websites, you can typically find a song if you really work Google over for a while. Spotify puts it all in one handy dandy place for you. Then it takes it a step further. In its recently updated version the artists’ radio stations suggest similar music to that of the artist, album or track you originally searched. I have found this to be a great way (much better than Pandora) to discover new music that I like and then support.
This is not the first time that the music industry has had to deal with a game changer (not even close to the first time). As we have mentioned ad nauseum on this site, the Internet fundamentally changed the music industry. Moving at a painfully slow pace, the label infrastructure was not ready for the shift. Look what happened to them. Now that the Internet is out of its infancy and new and creative ways to bring music to fans are being created on a daily basis, will the existing labels and, more significantly, the independent artists be ready to play ball? Or will they stamp their feet and and cry “UNFAIR, DO OVER!”?
Rather than complaining about the system in place and the uber small price per stream (which we agree is way to small and should be changed a bit), we suggest that bands get creative with streaming networks. Give fans extras and incentives to stream. Be discovered and it should lead to better results for your music.
Perusing the local trade magazines or attending a music based conference can lead a musician (or someone who works with musicians) to believe that Armageddon is truly here. If we hear one more speech or read one more article about the end of the music industry as we know it, we will certainly collectively go nutso.
The truth is the entire economy is in the crapper. We don’t know one industry that hasn’t been touched (well, maybe crime, if that is an industry). Music has certainly not been immune. However, we here at L4M are here to say that Debbie Downer needs to turn her frown upside down. While the days of multi-multi platinum records and huge advances are certainly on death’s doorstep, the savvy musician can do more than just eek out a living. Here are some things we think musicians should be happy about:
1. The Internet. Long hailed as the assassin of the music industry, the world-wide web offers more opportunities than it does problems if you know how to ride the waves. Not only has the internet introduced the fan to new (and mostly legitimate) ways of finding new music, collaborative websites now allow musicians a means to create, promote and distribute their music. Sites like TopSpin, BeatPort, BandCentral, SoundCloud and Facebook have become essential and typically inexpensive methods for sharing talent, ideas and product. If utilized properly, the internet’s social media platforms can completely replace a label based pr system. Access, affordability and a global reach are definitely something that the Internet provides to the musician willing to navigate it.
2. Music Festivals. Music festivals breath new life and huge opportunities to major label talent as well as emerging bands. Bringing great music to enormous crowds coupled with innovative festival organizers oftentimes bring great results. Not only are festivals bringing tremendous revenues to musicians and the organizers, they offer great opportunities to buzz bands to play in front of huge crowds and important taste makers. On top of that, every festival brings with it industry parties, opening slots for after shows, and tons of press. Emerging bands who strategically plan ahead for a visiting festival can really cash in (maybe not as much as Perry Farrell, but still…).
3. Music Licensing. It used to be that in order to get your music licensed your label or publisher would have to cozy up to a music supervisor. With the amount of media content around the world growing at a record pace (think tv, radio, satellite radio, internet programming, commercials, film etc.) there is a matching need for quality music. Jingles are a thing of the past. Ad agencies with unlimited budgets for music is also rare at best. Quality music that may originate from lesser known musicians but do not carry with it the rigors of publisher and label demands has become imperative. Musicians who work to get their music to savvy music libraries can make money on both up front music licensing sync fees as well as the oftentimes lucrative performance royalties.
4. The Remix. Want to resurrect an old single? Want to make some money as a producer by resurrecting that old singer? Never before has the remix been more important. DJ’s like Skrillex and Guetta have become über rich by making a name for themselves as talented remixers as well as great djs. For popular musicians, remixes by producers or other bands can lead to revitalized sales of a falling single. The remix is a handy promotional tool as well (Lady Gaga will be ever-present again for a while as she announces the release of an entire remix album). Another means of collaboration, oftentimes between artists who would not otherwise work together is definitely a trend that we can all be thankful for in 2011.
5. Vinyl. The LP appears to be back for good. Collectors as well as a new generation of music purchasers appear to be favoring holding something cool in their hands and not just in an electronic file living in an Ipod. While still expensive to manufacture, vinyl sales in 2011 continue to defy the rest of the industry. A positive trend that began several years ago, there does not seem to be a slow down to the sale of the old school vinyl record.
What about you? What are you thankful for as a musician or a music fan in 2011? Please comment below. Let’s stay positive and bring in the joy during this holiday season. Having trouble doing so, slap on the collector’s edition of Justin Bieber’s Christmas album. We have no doubt that you will soon be smiling!