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
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
We have covered several topics on recapturing copyrights here at Lawyer 4 Musicians (see Recapture Basics and Heir’s Rights), as the clock started for copyright owners to terminate a record label or publisher’s grant of rights in 2013. But what if you granted the rights to your copyright before the Copyright Act came into effect (before 1978)? Are they lost for forever? What if I am an heir who has inherited hundreds of songs that are being controlled by someone else? Never fear, with just a gentle tweak in termination timelines, the Copyright Act addresses recapturing of copyrights pre-1978.
Section 304(c) of the Copyright Act allows the copyright owner or his or her heirs to recapture a grant of their copyrights starting on the 56th year from when the copyright was originally registered. Why is it 56 years instead of 35 like post 1978 copyrights? Glad you asked…A little history for you . . . prior to the enactment of the Copyright Act, a copyright was split in two consecutive 28-year periods (this means you could own a copyright for 28 years and then renew it for an additional 28 years) for a grand total of 56 years. Once the Copyright Act was enacted amendments were passed to extend pre-1978 copyrights for an additional 19 years and then again another 20, totaling a whopping 95 years (28+28+19+20). Section 304(c) allows copyright owners or their heirs to recapture for the remaining 39 years that were added by the amendments, (with a few rare exceptions).
The rest of the recapturing maze is the same as post-1978 copyrights . . . simple right? Sort of. The copyright owners or their heirs have a 5-year termination window after the 56th year during which the grant of rights may be terminated. But in order to exercise the termination, the owner must provide written notice to the grantee with an effective termination date falling in the termination window. The notice must be served between 10 and 2 years prior to the effective termination date. Here is an example:
Copyright Registered: June 15, 1950
Termination Window: June 15, 2006 – June 15, 2011
(1950 + 56 years = 2006 + 5 year window = 2011)
Now the tricky part . . . the notice is dependent on the date you want the termination to occur. If you take the above example and want the termination to be effective on January 1, 2010, the termination notice needs to be given to the grantee after January 1, 2000 (later than 10 years before) and before January 1, 2008 (prior to 2 years before). The notice needs to be signed by the owner or if the owner is deceased, those entitled to more than 50% of the copyright interest (see Heir’s Rights article). Then the notice needs to be recorded in the Copyright Office prior to the effective termination date.
A bit complicated, but if you can do the math and send the letter those copyrights are as good as yours! And, of course, we are here to help. Just ask!
Stay tuned for more posts on Lawyers 4 Musicians, after a long hiatus we are back, keeping you updated on all the ins and outs of the music biz!
Great question. With so many ways to get your music out to the public it should be easier to break into the music scene, right? Definitely Wrong!
We could write an entire book on the importance of your team as an artist. For the sake of brevity and sanity, let’s focus on networking and management for this post.
The number of individuals who post music to Soundcloud, YouTube, Facebook, ReverbNation, HypeMachine, Spotify, Pandora, MySpace (I think that site is still live), etc. is staggering. So while it is definitely easier to get your music on-line where it may eventually (randomly) be heard by the public, it remains just as difficult, if not more so, to actually get traction and make a career out of being a musician.
There is no one or best answer to this question. Unfortunately a lot of what permits an individual to “make it” in music depends on connections. So much of what happens in music is still based on who you know. While there are many stories of individuals grinding it out in coffee shops, selling cds out of their trunk, submitting demo after demo until, finally, someone with some clout (aka money) opens the magic gates to true exposure, the majority of musicians that have made it take a different route. Networking, schmoozing, pestering etc. are as important as great lyrics, production and stage presence. Going to panel discussions, meeting the right people or people that can lead you to the right people is hugely important. Please don’t mistake the necessity of having great music. You can be the best networker in the world and get your music in front of the exact right people, but if that music is not up to par, the door will quickly be closed.
Let’s assume your music is great and you just need the right people to hear it. What should you do? We at L4M consistently advise our clients to pick the best team members when embarking on a musical career. Try to find the right fit and figure out exactly who/what you need. A lot of artists assume they need a manager immediately. If the right manager is selected and he/she is utilized correctly by the artist, a manager can be an essential key for success.
Managers can quickly become a crutch or an excuse for an artist. Why am I not getting any gigs? Why am I not getting a publishing deal? My manager must not be doing something. While a good manager can secure some opportunities, a manager at the beginning of a musician’s career should be there to offer advice, tough love and help set up a plan for future success. Connections are a huge plus but having a level head and understanding the artist and his/her goals is equally if not more important.
Other key team members include a booking agent, lawyer and publicist. We could write long articles about the importance of each person, but in the very beginning of a music career, these people will most likely come with a certain modicum of success. L4M is obviously partial to lawyers being part of the team, but you will know when you need one (first deal, or band agreement or manager agreement). A good manager should be able to make introductions to all of the other team members you need. In fact, a good way to judge the skill set of your manager is to find out who he/she knows that can help build this team.
How do you find a good manager? Ask around. Don’t rely on websites (many of the best management teams don’t even have a website). Find an artist you admire and see who is on their team. Chances are that Scooter Braun isn’t going to take you on, but find out who he is taking on for clients. Those artists did not start with him as their manager. Reach out to people that know. Lawyers, publicists, other musicians should be your target when trying to find the best management fit.
Remember that there are two sides of a career in music: first and foremost the music followed closely by the business of music. If your music is great, your business skills and team need to be up to snuff. If your team is below par, your music will not get to the masses and you will sadly be lost in the (sound)cloud.
One of the most misunderstood areas of the music industry is publishing. Trying to explain that there are two equal halves of publishing each equating to 100% (getting you to 200%), you are bound to get some glazed over faces. We work with several publishers, administrators, writers and producers and think (brushing our shoulders off) that we have a pretty good handle of how publishing actually works. Our contributor, Lauren Schulz, does a great job of breaking it down in this straight forward article below. While this is by no means a comprehensive treatise on publishing, we hope that it can shine the light on some of they dark, mysterious and befuddling issues that is music publishing. Enjoy!
The Purpose of a Music Publisher; What Does a Publishing Contract Do For A Songwriter?
Many individuals in the music industry are aware that once a songwriter or composer starts to receive compensation for their compositions or work, they often sign with a music publisher. But what does a publisher actually do? And what are the various terms of a good publishing agreement?
In a nutshell, a writer signs with a publisher to have the publisher handle the rights to their compositions for the purpose of making the writer more money. A publisher is experienced in the business side of the music industry and often has the connections to create opportunities for the writer that they could not create on their own. Additionally, when a writer handles their own administration, accounting, and/or promotion of their work, there is often very little time to continue creating music, leaving the writer with a not so successful business plan.
To break it down, if a writer is signing a publishing contract, the writer is essentially hiring the publisher to handle copyright registration, licensing, collection of the writer’s royalties and accounting services. This is often referred to as administration. This is a huge job that often takes a considerable amount of time and knowledge of the music business. A publisher handles quote requests, license requests, monitors how a writer’s composition is used, delegates any fees or payments, prepares paperwork as well as often negotiates license terms. Additionally, publishers collect performance, mechanical and synchronization royalties on behalf of the writer. These royalties are paid in exchange for different uses and sales of the writer’s work and involve third parties such as performance rights societies or the Harry Fox Agency.
In addition to administration, publishers will provide writers with advances and career opportunities. An advance is similar to a loan, given to a writer so that the writer may have an upfront income for his or her work. Often once a song is released, it could take a year or more before it starts to collect any royalties, meaning the writer has to wait a long time to get paid. An advance allows a writer to have income so that he or she may continue to create music. The amount of an advance often depends on the writer’s popularity, skill and potential opportunities. The writer then recoups (or pays back the publisher) through his or her collected royalties. Publishers also create opportunities for the writer. Publishers are often the link to performing artists, record labels and producers that will help generate revenue for the writer. These opportunities help a writer to maintain a longstanding and successful career in the music industry; basically a stepping stone to help a writer reach the next level in his or her career.
The next question then becomes, if I am a writer trying to develop my talent and create a career for myself, how am I going to pay for these services that a publisher provides? A publisher is paid by owning a portion of the copyright to the writer’s compositions. This allows a publisher to receive a percentage of the writer’s royalties for the use of his or her works. The percentage of the copyright granted to the publisher varies depending on how much responsibility the publisher is given. A publisher who only conducts administration will receive a lower percentage than a publisher who provides all of the services listed above. Often when a publisher provides administration services, opportunities to develop the writer, and an advance, the writer will sign a co-publishing agreement. A co-publishing agreement grants the publisher fifty percent of the ownership to the writer’s work on the publishing side (or twenty-five percent of the ownership including the writer’s share). This explains why a publishing contract is exclusive. A writer will not want to assign any additional portions of the copyrights to their work, nor will they want more than one publisher to handle the rights to their work.
A publishing contract is limited to a term, or certain period of time. A publisher will only own a percentage of the copyright for the work the writer creates during that period of time. For example, if a publishing contract has a term of three years this means that the publisher will own a percentage of the copyright for anything the writer creates during those three years. Often writers will also give their publisher the rights to their work created prior to the publishing contract. This allows a publisher to promote a work created by a writer five years ago that was never released. In exchange, the publisher might give the writer a larger advance. It is important to understand that a publisher does not control or limit a writer’s creative process. A publisher does not control the type or style of music a writer creates nor does a publisher have the ability to force a writer to collaborate with other writers or producers. Instead the publisher will bring opportunities to the writer, and the writer and publisher often decide together whether the opportunity is a good fit for the writer.
Overall, it is best to think of a publisher as an agent for the writer. The publisher will handle the business work, promotion, administration and accounting for the writer while the writer can be left to do what the writer does best, create music.
L4M has been hard at work. Working so hard that we have neglected the site for a bit. To make up for it we have enlisted the services of our newest member, Lauren Schulz of Troglia Kaplan LLC. Lauren helps bring us back to the basics of Copyright law below. Enjoy!
Everyone from major movie producers to ad agencies to independent business owners all have the desire to incorporate music into a film, commercial, sampling or other production. Unless you have some serious skills to create your own musical composition, the majority of the time you already have that “perfect song” in mind to use in your new spot. While it may be tempting to just borrow a song from the internet or your own library, we all know (or should know) that that would be a big no-no. So how do you go about getting the permission to use that perfect song?
In music publishing world, this is called ‘clearing a song,’ which basically means that in order to use Queen’s “Bohemian Rhapsody” in your new commercial, you need to get the okay from its copyright holders. But how do you go about doing this and how do you find out who owns the rights to a particular song? The tricky part is that each song has two separate copyrights and you need to get permission from both of the right holders in order to use it.
The two copyrights are for the rights to the musical composition and the sound recording of the song. The musical composition consists of the actual written music, think notes on a bar staff. It makes sense that this is owned by the writer(s) of the composition, which is then usually assigned to a publisher. Be careful, if there is more than one writer to a song this could mean several publishers might split ownership to the copyright as well. The other copyright is for the sound recording of the song. This is the performance of the composition. This is often referred to as the master recording and the right holders are referred to as the master owner(s). Think of the master recording as a person in a studio recording a track to put on a CD. Usually the copyright to the master recording is owned by the record label, which generally finances the making of the album.
Now that you know about both copyrights, how do you find out who owns the rights to those copyrights, and then ask them for permission to use the song? First, start with the copyright for the composition to find out who the publisher(s) and writer(s) are for the song. The best place to look is the performance rights organization’s (“PRO’s”) websites. The most popular PROs in are ASCAP (American Society of Composers, Authors and Publishers), BMI (Broadcast Music Inc.) and SESAC (Society of European Stage Authors and Composers). The majority of artists register with a PRO in order to receive performance royalties. (see the post below for more discussion on PRO’s). So all you have to do is search for the song or artist on one or more of these websites and it should tell you who the publisher(s) are. If the song does not appear, look for songs on the same album. Although the publisher might be different for the song you are looking for, generally that publisher will know who owns the rights and who you should contact.
The more complicated task is finding out who the master owner is. This becomes difficult because there is no database or website that lists the master owner(s) for each song, so it might involve some trial and error. Remember, the majority of the time the master copyright belongs to the record label, so your first step should be finding out which label produced the album that the song you’re look for is on. A few places to start your search are the U.S. Copyright Office website, Spotify, iTunes, Wikipedia, or any site that includes a biography of the performer. Often the biographies will include which label the performer was signed to at that particular time the song was recorded.
The next step is to contact these publishers and master owners and send a request to license the use of the song. Make sure to tell them the purpose of the use, how much of the song you want to use, the type of media you are incorporating the song with, the length of time your production will be available for public view, and an estimated quote. The quote usually depends on the popularity of the song, the term, and the type of media you are using. For example, an unknown jazz instrumental used for the background of a TV commercial set to air for one year, will be considerably less than Queen’s “Bohemian Rhapsody” used in a commercial distributed on the internet forever. Therefore, pick your battles when you have a strict budget.
Although this process can get discouraging, it is something that everyone who uses music has to do. Once you start getting the hang of it, it becomes easier. Know that the process could take from one week to several months, so plan accordingly. Thus, be patient and in the meantime let us know if there are questions we can answer to help you along the way!
Check out this article by our friend, Chris Rucks for the biggest mistakes people make in music clearance.
A few years back it appeared as though every state in our fine Union was scrambling to get some sort of tax incentive or tax credit on its books. The “Runaway Production” (film productions moving to Canada or beyond to save on production budgets) panic that spread across the nation caused state government officials to introduce and fast-track a wide variety of new legislation. The calm after the storm has left a rather muddied landscape with certain states eliminating their programs while some continue to thrive, albeit under the radar.
Most of the existing state film tax incentives require all aspects of production of a film or television production to take place within the state borders. Depending on how much is spent, how it is spent and the type of production, certain states provide incentives that can result in tremendous savings or “free” returns on investment (depending on your viewpoint).
A great chart of the remaining state tax incentives and the applicable requirements can be found HERE.
Coupling the various state tax incentives with the mysterious but enticing Federal Tax Incentive, Section 181 (which still exists) and you can potentially see upward of 50% of your overall investment returned in the form of credits and write-offs.
If your film or television production qualifies for one of these programs you can use it as a great way to entice investors. We don’t have to tell you how hard it is to get financing for independent film projects. Not only do you have to convince people that your film is the one that will succeed, but you have to scare the pants off them by telling them all of the risks and ways they may lose their investment through your investment documents (PPM/Offering). Throwing a few pages in these documents describing the various tax credits and incentives offered by the federal and state governments can be just the thing to get an investor off the fence and into your film production.
So this one keeps getting more and more interesting and worrisome (depending on your viewpoint). Check out this article from The Verge: http://www.theverge.com/2013/6/13/4428106/bmi-sues-pandora-calling-radio-station-purchase-a-stunt
We’ll continue to monitor and let musicians and rights holders know what it means for them (other than lower streaming rates).