Songwriters’ Guild of America Pleads with White House Administration

    It’s a bad time to be a songwriter according to Songwriters’ Guild of America (SGA).

    In a recent letter to the IP Enforcement Coordinator, SGA suggests that the current administration hasn’t yet taken seriously the threat music piracy poses to songwriters and the U.S. Economy. SGA makes several recommendations, including more active criminal and civil enforcement by the FBI and the removal of Principle Number Five from the FCC Net Neutrality regulatory proceedings, which targets discriminatory practices towards content and services.

There is a strong belief in the music industry that piracy has wreaked havoc on the songwriting industry in numerous ways. According to the letter “every major music publisher has laid off at least half, and sometimes all, of their professional songwriters in the ten years since piracy began to decimate the music industry.”

“There are numerous economic crimes of much lesser magnitude (such as bank robbery) that are routinely and fully investigated, for which law enforcement agencies such as the FBI have significant resources. By contrast, online copyright piracy dwarfs bank robbery in causing economic loss…”

The magnitude piracy has on the U.S. market, however, is a squishy question. According to a year-long study conducted by the Government Accountability Office, at least three statistics frequently relied upon by content industries (RIAA/MPAA/etc.) can’t be substantiated or adequately tracked back to a reliable source.

It is clear, however, that piracy and the Internet Revolution have a significant impact on the music and publishing industries; although digital revenue has increased across the board those sales are cannibalizing brick and mortar operations. Absent adequate safeguards against piracy and file-sharing the shift to digital distribution will pose huge risks to record labels and publishers.

Pink Floyd wins out against EMI for song-bundling

A London Court has ruled in favor of Pink Floyd in the most recent dispute between the band and its label, EMI, concerning song bundling and unbundling on albums.

Pink Floyd brought suit against EMI to dispute online royalty payments and EMI’s practice of selling individual Pink Floyd tracks online. Much of the dispute concerns whether “records” and “albums” under the contract are limited to physical formats such as CDs, LPs, and DVDs. According to the London Judge, the answer is “no.”

According to the band, albums like Dark Side of the Moon are concept albums. In many cases tracks on any particular Pink Floyd album flow together, making distinctions from track to track difficult. The band claims that they intended consumers to listen to the albums as arranged by the band as opposed to the current practice of “unbundling” albums and selling each track singularly.

The Court concluded that a clause in the recording contract alluding to the band’s moral rights preserved the band’s interest in maintaining the artistic integrity of their albums. This includes the presentation of the music contained on each album, regardless of the album’s format. The judge granted Pink Floyd an interim judgment of £40,000 for breach of contract.

A dispute like this demonstrates a few things—first clarity and forethought in recording contracts needs to take greater precedence than ever before due to the evolution of recording and distribution technology. Also, artists should seek creative control and approval rights over how albums, regardless of format, are presented and consumed in commerce. This is particularly true in U.S. contracts, where moral rights are given far less consideration.

Performance Contracts and Playing Live as an Indie

Musicians go into the marketplace with the assumption that it’s okay to get screwed their first time out. I can’t say that this is a completely erroneous assumption; when you’re just starting out in the live scene you’re going to be operating at a loss because your number one priority is getting out there and getting out there often. This not only means worrying about how you’re going to afford to tour, but it also means paying for equipment, gas, and other expenses related to playing live. It’s a business builder and a way to get your name out there; it’s true that there are dues you’ll have to pay while you’re developing your fan base.

But there are plenty of artists out there who months or years after they’ve started pulling in 100-500 fans a show still won’t see a dime. This can be for any combination of reasons and it happens on both a local and new-market level; either you feel you owe it to the venue that gave you your first “chance” and trust the proprietor to get around to paying you “when they can”; you’re playing at a new club or in a different area and they will act like they’re doing you a favor by letting you play there; the club owner/promoter can’t pay you because the headlining act actually did things properly as far as making sure to get paid, thus making it impossible for said promoter to pay you; or if we want to take an example from “Almost Famous”, the club’s equipment may get damaged during the show and they want to hold you personally accountable for that damage. In fact there are dozens of excuses why you may not get paid.

But at no point in your career should this ever be the case, and there are very few circumstances where you should feel comfortable paying to play. Here’s a checklist of things to keep in mind when touring and playing gigs:

• Get it in writing. Nothing is more important that having something in writing to show that a) you’ve agreed to play and b) the venue or promoter has agreed to pay, even if it’s a nominal amount or the expense of promotion. No matter how personal a relationship you have with the promoter or club owner, once you’ve agreed to provide a service you’ve entered into a business relationship. Being professional at the outset of your career sets a good tone for your future. No matter what make sure there’s a contract.

   

• Read the contract.
  That being said, don’t sign anything blindly. A performance contract can range anywhere from 1-25 pages depending on the requirements of the promoter and the band’s rider. While you may never be in a position to demand a gallon of M&Ms with all the brown ones removed you will ALWAYS want to know what you’re signing. Typically promoters and club owners will have a standard one page agreement. They may have pulled it off the web or they’ve had their attorney draft it for them. Whatever the case you can be sure that they know what that contract says and it is weighted in their favor.

   

• Know what you need in your contract. This will vary based on the kind of leverage you have with the club owner, how many fans you can pull, and your clout or your agent’s/manager’s clout. A quick run through of what you should ask for, even if you’re new:

   

  • Payment. Payment can happen in a few ways. You can get a flat fee, a percentage of ticket sales (percentage of the gate), a minimum guarantee if your gate percentage cut doesn’t hit a certain threshold, or any combination or variance of those options. When starting out the two most likely payment methods are nominal flat fee or percentage (small, say 20-30%) of the gate. If you’re not the headliner that percentage or flat fee may go down.
  • Date and Schedule. Getting the right date is always important. So is knowing when you need to set up, when you can run a sound/line-check, and when you’re expected to go on.
  • Right to Terminate/Force Majure. In many performance contracts you will be asked to sign, the only party with a right to terminate will be the venue/promoter. If you don’t show up you may be liable for breach of contract. If that’s the case there are a few things you should request: a) make the right to terminate bilateral. This means both parties have a right to cancel the show within two weeks, a week, or 30 days in the event of an emergency or a scheduling conflict; b) include a “force majure” clause so neither party is liable if the show can’t go on due to an Act of God (the venue floods, a member of your band gets hit by a bus, etc.); c) if the venue terminates without cause or if they terminate too close to the date of the show (making it impossible for you to book another show on that date), try to recover either your entire fee or a portion of your fee.
  • Promotional Expenses. You need to determine who is responsible for promoting the show. If you’re getting paid a flat fee this is less of a concern for you, but if you’re getting paid based on a percentage of gate you want the venue to at least bear some of the cost of promotion, and if you’re not getting paid a dime your compensation should be the cost of promotion—why would you play for free if you’re not even getting publicity?
  • Liability. Remember the Almost Famous example mentioned before? You need to take steps to protect your business and your assets in the event of an accident or injury. This means having a registered business entity like an LLC or Corp. that protects you from personal liability, and carrying small business insurance with liability coverage and equipment coverage. You also need to make sure that the agreement doesn’t make you liable for ALL accidents, claims, etc. arising while you’re at the venue. The venue/promoter should be equally liable for any injury/claims arising from their negligence or from unsafe conditions on their property. Bear in mind that many state laws require venues to maintain insurance and abide proper fire safety protocols, so if they say “no” on this you may not want to play there for your own personal health and the health of your fans.
  • Details. Pay attention and make sure your names are spelled correctly if you’re signing as individuals, your band name is spelled correctly, the dates are accurate and the contract is signed by both parties. You’ll also want to check the jurisdiction in the unlikely event that someone sues over this—if the contract’s jurisdiction is New York and both you and the venue are located in Seattle there’s a good chance the promoter/venue owner pulled the contract off the net without checking these details. Don’t be afraid to point them out.

Being astute and diligent in everything you do in connection with your music will protect you in the long run. Don’t ask to ask and don’t devalue yourself at the outset—doing so makes it harder to take you and your music seriously.

Understanding Copyright in Music: The Basics

Of all the areas of copyright law music is the one people have the hardest time understanding. Not only are you dealing with rights that are intangible, but you’re dealing with rights that come from two different sources. So let’s clear this up, taking baby steps.

What is Copyright?

The easiest way to understand Copyright is to take the word apart: Copy Right. A right to copy. Copyright gives you an interest in the content of a physical product like a book or a CD as opposed to the physical object itself. That right in the content is the right to copy, distribute, display, create derivative works of, and perform that content.

In your case, your content is the music you write and record.

How is Music Unique When it Comes to Copyright?

Music is unique because your copyright comes in two forms. You have a copyright in your musical composition, including lyrics, melody, and arrangement, and you have a separate and distinct copyright in your sound recordings, or what you put on a CD or record. The content of your musical composition is the elements of the song itself, no matter who sings it or who performs it. The content of the sound recording, on the other hand, is the music as it is on the recording itself.

To make this easier to understand simply look at the structure of the music industry. On the one side you have publishers and on the other you have record companies. Publishers want the rights to your musical composition. If you’re a songwriter, you may consider working with a publisher so your musical compositions can be licensed to and performed by performing artists. On the other side of the industry you have record labels, who want the rights to your sound recordings (e.g., your albums). If you’re a performing artist what you perform on an album falls under the sound recording copyright.

If you’re a band that writes your own music you can stake claims to both your musical composition copyright and your sound recording copyright.

When Do I Get my Rights?

Your copyright triggers the moment you put your music down in a physical format, including digital format (this includes MP3). That’s all you need to do. If you write a song and record it in any medium you have rights in both the musical composition and the recording itself.

What About Registration?

Registration is $35 if you do it online. The earlier you register, the better off you’ll be. Statutory damages are significant and are only available if you register before or within three months of an infringement. You must register if you plan on suing anyone for infringement, and many of the people you want to license your music to will require proof of registration to show that you are the owner of the rights in question. Register early. If you want to learn how to register your work visit the U.S. Copyright Office website.

What About Poor Man’s Copyright?

Before 1976 this may have been relevant. Today mailing a copy of your CD to yourself may only be useful evidence of when you recorded. It isn’t a substitute for registration.

So What the Hell Does All This Mean?

It means that if someone pirates your work and distributes it without your permission, uses your song in a video without your permission, passes of your song as their own, or samples your song in their own without permission, you have legal rights against them. Any time someone uses your music without your permission they’re committing copyright infringement. This is actionable and you can enforce your rights in several different ways, whether by selling them a license for use or filing a lawsuit against the infringer and anyone else involved in the infringement.