The Golden Oldies – Recapturing Pre-1978 Copyrights
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!
Help Me “Clear” This Song
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.
Does Forever Really Mean Forever? Recapture Your Copyrights.
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…
Songwriters Take Note and How to Help Matthew Leone
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:
Team Building 101: DIY artists, you are not alone…
Ever since Napster and its sinister brethren appeared on the scene a lot of my peers (even those with the purest of hearts) have added to their music collection without spending a dollar. In addition to getting music for free, the actual method of creating and distributing music has fundamentally shifted. Threats of lawsuits from the RIAA may have slowed the free music exchange sites, but social websites, blogs and China have continued to make music available to the masses au gratis (that’s french for free or with cheese, not so good with the franscais).
It is far from original to state that the way the public obtains, shops for or even listens to music has changed over the past decade. Countless reporters, bloggers, industry experts and politicians have noted the fundamental shift in the music industry. Your humble author has also contributed to the rhetoric. But now it is time for musicians and their respecitve teams to stop talking about the change and adjust their own business models in order to succeed in this “all-access-all-the-time” era of music. Here’s my roadmap:
THE NEW TEAM MODEL FOR MUSICIANS AND THEIR MUSIC
1. Amazingly good music. If you don’t have number 1, there is no point in reading past this point. Because of the ease of getting music out to the public without the cost restrictive hurdles of cd manufacturing, warehouse and transportation costs there is more music available to the public than at any time in history. While the digital shift has seen many positives, the overhwelming result is an overly saturated market full of average music. No one likes to think of their music as average, so I’m assuming that you are still reading to see what else you need for your team. I don’t want to belabor the point, but seriously, if your music isn’t good, you are not going to get far (except for the aboritions of people like Lady Gaga, Soulja Boy and Nickleback). It all boils down to the music; and that’s a good thing.
2. Hire A Lawyer. Yeah, yeah, I know, I’m a lawyer and I’m telling you to hire an attorney. But it doesn’t have to me. As you will see in steps 3 and 4, you will be consistently entering into contracts. Hand shakes are cool, especially funky ones with fist bumps included, but they are not cool for agreements that will involve money and your career. A lawyer who understands new media, intellectual property protection and more importantly contract interpretation and law is essential. The new music model involves, digital distribution of music, corporate partnerships, website policies, copyright and trademark protection, royalty collection, license deal, etc. etc. A lawyer who you trust should be step number 2. (If a lawyer tells you she will “get you a deal”, you need to politely excuse yourself from her office and never look back. This old school model is as dead as Chris Brown’s Drink Milk ad campaign.)
3. Hire a Manager. Your buddy might be a fun guy and is good at working a guest list, but you need a professional that will not only manage your day to day career but find new opportunities for your music. The manager needs to think as creatively as the musician, but instead of making music, they should be making deals with new partnership opportunities, tour deals and promotions. A manager should get a percentage of the money that the musician makes for the work that the manager actually does. DO NOT sign a manager agreement that blindly gives your manager 20% of everything you make unless that manager used to work for U2 or Jay Z. Another old school tactic, managers should get paid for what they bring to the table and not just feast on all of the opportunities that come to the band without the managers’ help. Your agreement with your manager should spell this out in great detail (NOTE, having a written agreement with your manager is a mus. See point #2).
4. Get a PR/Marketing Firm. A firm that understands the music business is obviously important. But what is more important is a marketing team that understands your music and your niche. If you are trying to cross over from a hip hop audience to a more mainstream pop market, look for a PR firm that has both clients on its roster. PR firms can be expensive but if you have a budget to spend they can typically tailor their efforts to match it (see point #2, again). Posting your music on popular blogs and on social sites is definitely worthwhile. However, if you want to take it to the next level, you need the network and reach of a competent PR/marketing firm. Yes Fakeshoredrive.com is cool, but spin.com is better.
If you have the “new team” assembled you are in a good spot. This team should be able to act in much the same way as the archaic labels once did. One remaining step is physical cd distribution. While the CD is dying it still makes up a large percentage of music sales. However, unlike the old days, your team can approach physical distributors after you have enough buzz and digital sales racked up. If a distributor sees good numbers, a deal can be inked for small distribution of physical copies of your album.
The DIY artist has a lot of opportunities now. But like many experts have noted, (click here for a great article on the perils of a DIY artist) just because an artist can produce and publish her work for the public to hear, does not mean that she will succeed. If your music is good (and your mom thinking it is good does not count), start building this team and you just may be able to achieve success in the music industry.
SHAMELESS SELF PROMOTION OF THE WEEK: FRENCH HORN REBELLION
Speaking of a DIY band, check out French Horn Rebellion. Originally from Milwaukee, now embedded in Brooklyn, these guys have made their own opportunities and have worked hard to get a foot hold on the indie electro pop scene. Good music and a sense of humor make them a popular band with cross over appeal. Now with a good TEAM behind them, you are undoubtedly going to hear a lot more french horn in your music.
Step Outs and Side Projects: Proceed With Caution
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.
Do you have a Publishing Company?
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.
How Can Q-Tip Leave His Wallet Without the Tribe?
Recently I attended the Q-Tip and Cool Kids concert at House of Blues. During a bumping version of Bointa Appelbaum, my friend Aaron, taking a brief break from bobbing his head off-beat, asked me how can Q-Tip play this song without the rest of Tribe? Relishing the opportunity to spread my music and law knowledge I began explaining to him how copyrights work and wondering aloud whether a Tribe Called Quest had a band member agreement. Aaron, much like most people I talk to about the law, immediately glazed over and went back to doing his version of the electric slide.
I figure, however, if you are reading this blog, you may want to know how Q-Tip was able to publicly perform some of Tribe’s greatest hits or how Roger Waters could sing Dark Side of the Moon or how Phil Lesh and friends can delight fields of the unshowered with Sugar Magnolia. These artists have the ability to dig deep into their former band’s repertoire for several reasons.
Most of us have been to a concert where the headliner covered another song. Bands can play other bands material at a concert so long as they register the performance (oftentimes after the fact) with ASCAP, BMI or SEASAC. But the Q-tip situation is a bit different. Q-Tip was treating the crowd to set full of classic songs made famous by his former group. If Phife Dawg was on tour, could he ask if he “Can Kick It” (click on the link to see who holds the copyright)?
The answer, unfortunately, is that it depends on how organized the band was. If they had a band member agreement (see https://lawyer4musicians.com/2008/08/ for more about band member agreements) it undoubtedly contained provisions for an eventual band break up. Issues that may seem unnecessary today may have a huge impact later. A leaving member or termination provision will have an invaluable effect on how your band’s brand is treated after the life the of the band is over. If properly written, the termination provision will ensure that the band’s name and its value are not diluted. It will set out who can use the songs, who can tour under the band’s name and who can re-issue recordings.
Think of it this way: Smashing Pumpkins break up (for like the 5th time) but James Iha and Billy Corgan want to tour with new members using the Smashing Pumpkins band name and the Pumpkins’ catalog of music. If there is no agreement between the members of the Pumpkins, and both try to tour under that name, they will both most likely fail or at least end up in court fighting for the right to use the name and songs.
For independent artists that are not quite at the band member agreement phase there are steps to take to ensure that this type of confusion and conflict do not occur. First, just talk to your band mates about it; get a sense for where everyone is on the issue of song ownership. Second, register your copyrights in your recordings. The copyright registration will allow you to designate the author of each song you register. That way, if there is a debate down the road you can at least point to the copyright to show who owns what and who has to get permission from whom before a song is performed or recorded. Third, trademark your band name. The trademark registration will allow you to claim ownership of your band name and logo. Finally, suck it up and put everything in writing. Keep in mind your first agreement can be amended and modified as many times as you want.
SHAMELESS SELF PROMOTION OF THE WEEK: WHATZISFACE
Check this MC out. Okey Dokey makes the stiffest of us bounce a little bit.