Legal Basics for Songwriters & Musicians
Robert Rosenblatt
The purpose of this column is to provide career guidance from the perspective of an entertainment lawyer. The information presented here is not intended to be legal advice nor an overview of how to write, negotiate or interpret contracts. Rather, each month's column focuses on career guidance and legal fundamentals, involving areas such as business relationships, considerations when seeking legal advice, and in general, a "backstage" informal dialogue about the realities confronted in pursuing a career in today's and tomorrow's business of music.
We recently wrote an article concerning songwriting and publishing basics. We will continue on that theme by pointing out some basic concepts in publishing you should be aware of if you are not already. Like any other discipline, knowledge is cumulative, and you should have a grasp of the simple basics before you try to tackle the more complex issues. For each one of you who may have previously learned this information, there is always someone new who is trying to grasp this information for the first time, so here is their opportunity to learn these concepts. So let's look at the basics of writing, owning, and being paid for writing songs.
The first concept is ownership, so let's start here:
Copyright Holders. Who Owns the Song? Most everyone is familiar with the word if not the concept, of "copyright," which in the business of music, refers to government sanctioned, legal ownership of the various types of intellectual property such as the song, lyrics and music. Copyright also extends to legally and contractually authorized arrangements and adaptations. The owners of the copyrights are referred to as the "authors." There can be one author or multiple joint authors, with ownership of each work apportioned by percentage by agreement of the joint authors. In other words, the originals writers ("authors") can agree exactly in what percentage they will apportion or "split" the song. If one writes lyrics, and the other the music, the split is often 50-50. If two write the lyrics and one the music, the split may be 50% (for music), 25% (for lyric), and another 25% (for lyric). It could also be a third-a third-a third. The "song-splits' are completely up to the writers, there is no rule. There is a humorous story we tell about a very successful rap crew. The star artist did his lyrics...he was owner of 50% of the song for that; plus, he wrote part of the lyrics, so he got another 25% of the ownership; the producers who usually did half the music would then end up with 25% of the overall song. However, in this case they wanted someone's lesser contribution to be rewarded for 5% and another for 5%, which was all fair, generous and decent of them. It's also possible that the delivery man who brought the deli spread to the session may have gotten 5% for showing up when everyone was hungry!
Four Major Sources of Songwriter Income. Income is earned by songwriters as a result of various licenses by which licensees are able to use the song in question. There are essentially four revenue sources for publishing rights.
Mechanical Income. This is the income derived from using a song on a record, CD, cassette or other form of release of the song. The name "mechanical" is derived from an earlier time, not so long ago, when piano rolls were commonly distributed "copies" of the song were piano rolls, and were mechanical reproductions of the song. To this day, then songs are reproduced for commercial release electronically on vinyl, tapes, and digitally on discs and DAT tape, these are still "mechanicals," and that is what the publishing royalty checks are for from record sales.
Performance Income. This is the income earned from "performances" of the published work from radio, television and live performance. It includes music played in amusement parks on background PA systems, and on music-on-hold (telephone) services, and in bars, restaurants and bowling alleys, as well as the stages of clubs and arena shows alike. Money is collected in the U.S. from licensee users by BMI, ASCAP and SESAC, which are known as performance rights societies.
Sheet Music Income. This is the income derived from licenses granted to especially the major print publishers, such as Hal Leonard, Cherry Lane and Warner (formerly CPP/Belwin). These are the individual sheet music and songbook folios you buy. The books range from Irving Berlin and Cole Porter to Nine Inch Nails and R.E.M.
Synchronization Licenses. This is income derived from uses of the published work utilized in television shows, movies, commercials. In other words the producer, or owner of the program licenses the right to use the music within the intended work. The respective "blanket" performance licenses referred to which allow the use of BMI's, ASCAP's or SESAC's catalogues does not grant the right to use the song "fixed" within a program. Howard Stern can play White Zombie on his radio show under the performance society's license, but if he wants their song in "Private Parts," the movie producer has to negotiate the "sync" license with the administrator/publisher of the song, which may likely be a completely separate company and not his friends at White Zombie.
Songwriter and Publishing Contracts. The contracts common to publishing relationships and situations are essentially some form of the following arrangements. If you or your self-owned publishing entity own the whole song and have not assigned any rights, you have essentially "self-published" and are entitled to all the income, half of which is the publisher's and half of which is the songwriter's share. Since you are both, you get it all.
If you legally assigned all publishing rights to a publishing company, large or small, you have likely changed your status from "owner" or original publisher of the song, to the writer of a "work for hire." You no longer own the copyright, but you are entitled to half of the revenue (after the publisher's administration fees, if any, and allowed deductions) as the writer.
A better situation would have been if you retained part or all of the publishing, so that you would be entitled to half the revenue as the writer, plus a share of the publishing revenue. In a "co-publishing" deal, you split the publishers share anywhere from 50-50 to any other split to the benefit of you or the publisher. These are co-publishing agreements and they are quite desirable. Of course, if you can own your own publishing company, and limit your grant of rights to the "administration" of the copyrights, that will generally yield more money, since you essentially will own the whole song, although you will be giving up 10 to 25% to a better equipped publisher who will "administer" your catalogue of songs.
So there you have a basic primer of the types of income, terminology and thumbnail descriptions to discuss (and ask questions) about publishing and to compare the various legal relationships. If you look at the credits on new or old recordings, you may see a story revealed for each artist at different career stages. Earlier in their career, the Beatles, Dylan and Stones, gave up publishing rights. As they went on they retained more and more. Publishing is perhaps the most common way people, creative and non-creative, get rich in the music business. Maybe you may want to read up some of our past articles about learning to write great songs. Most aspiring artists have a long way to go. In the music business, when someone says, show me the money, " a discussion of publishing will usually follow. "Show me the money?...Play me the songs!"
Those of you who think you can get around this or know a better way are California Dreaming. There is not much more worth knowing in this business except for learning to tune your instrument and playing it, too without driving the record executives out of the room before the song ends.
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Robert Rosenblatt
24/7 entertainment legal consultation at a low monthly cost…..at www.legalshieldassociate.com/hardys
