Legal aspects of the music business Archive

PRO tips on Performance Right Organizations

By
Scott
 – December 22, 2010Posted in: Legal aspects of the music business, Music Business
PRO tips on Performance Right Organizations
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One of the first steps in getting your band’s business in order is to register with one of the Performance Rights Organizations (PROs). PROs are one of the most important weapons in your arsenal when it comes to getting paid for your music being played. The primary job for these groups is to collect royalty fees for your band, but they also provide music industry contacts and free or low cost seminars. Most are free to join, so the real decision is not if you will join a PRO but which one.
There are 4 major PROs that you need to know about, ASCAP, BMI, SESAC, and SoundExchange. You can only be a current member of one of the first three, but everyone should join the fourth, SoundExchange.

SoundExchange ensures you get paid for digital performances, like having your music played on Pandora or Satellite Radio. If you want to learn more about SoundExchange, check out this in-depth article about what SoundExchange is all about. An interesting aspect of SoundExchange is they collect money for digital performances even if a band has not registered yet. You may already have money waiting for you.

Choosing a Performance Rights Organization that is right may take a little research.

“[PROs] are the most misunderstood parts of the industry,” Tracie Verlinde, from BMI, said.

PROs have the very important job of finding when and where your music is being played so that they can collect royalties on song-writers and publishers. ASCAP and BMI are the most noted of the bunch, with SESAC only holding a small percentage (1% in 2010) of the artists and songs on the market.

Each PRO offers basically the same services. Most of the time the PROs are working directly with publishers on when, where, and which songs are being used, then paying out the collected licensing fees.

PROs are not going to dump piles of cash on you. If your songs are only getting a few plays a week on a local station, you are looking at a few cents. If you have an outside publisher, that gets split in half. If you are operating as your own publishing company, you’ll have to do much of the leg work yourself. Take your time with these decisions.

Verlinde said the PRO she works for, BMI, was started in 1939 to collect royalties for blues, country, jazz and other genres of song writers that were not covered by ASCAP. Yet now it’s not uncommon to find every genre of artist on all three PROs in the U.S.

ASCAP & BMI, the two largest PROs, are both non-for-profit and relatively easy to join. If you are a songwriter, BMI is free to join, and you apply online. ASCAP has a $35 application, but it is only a one time fee. ASCAP accepts online applications too.

SESAC is a for-profit company and have a reputation for working closely with their members. SESAC is also selective when it comes to memberships, so getting in may not be easy.

According to SESAC, “Unlike ASCAP and BMI, SESAC utilizes a selective process when affiliating songwriters and publishers, resulting in a roster of affiliates who have personal relationships with the SESAC staff. In short, SESAC’s creative staff provides affiliated songwriters and publishers with a level of service and attention unparalleled in the industry.”

It’s possible to work and record with musicians from other PROs. And you can always resign from one PRO and join another, but your old music may stay with the previous PRO.

When you choose a PRO your best bet is to contact a representative from each one, and ask how they could help your career. Each offer services beyond collecting royalties, like song writing seminars and industry contacts, so make sure you find a PRO that cares about your music.

DIY music placements in TV shows and more

By
Brett
 – November 2, 2010Posted in: Legal aspects of the music business, Marketing, Music Business
DIY music placements in TV shows and more
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Music placement is when your music is licensed to be used in a movie, TV show, commercial, video game, or anywhere else you might hear original music. There are few things more exciting than getting paid to have your music placed, but getting paid without having to share the profit is even better.

If you are an independent band making a few waves, eventually someone will tell you they can get your music placed somewhere. It sounds too good to be true. And in the music industry, when it sounds too good to be true, it’s too good to be true.

If someone offers to place your music, but they don’t require a contract, you should walk away. If they ask you for money up front, run.

There are legitimate placement agencies out there, like YouLicense, that can get you placements. The blog Passive Promotion has an excellent post, from musician Helen Austin, on getting placed with help from a third party. Austin has had great success, but it took her years to get to where she is today. Placement agencies are a valuable resource, though they are not the only option.

Music placement DIY

Recently we talked with Carrie Hughes, a music supervisor who places music for TV shows like “The Hills,” “Project Runway” and “From G’s to Gents.” She said she often deals directly with bands, managers and publicists.

Hughes said she rarely works with placement companies, due to problems in the past. Some placement agencies have signed contracts, but they did not have the proper rights to the music.

Hughes finds music a lot of different ways, from going to shows, checking out new music on top music charts, and even the piles of CDs that get sent to her every day.

“I get anywhere from 20-100 CDs on a given day,” Hughes said.

If you want to stand out, you need to do your homework. “Really do your research. Find all the shows on television [you are interested in] that use music…that really feature music. Then research who is the music supervisor on that show,” Hughes said. “Then really focus on the kind of music they use on that show, and make sure that your music fits that show.”

One of the best resources we have found for finding members of the music department for a TV show is IMDB. We looked up “The Hills” and then clicked on the link Full Cast and Crew, there was a section for the music department. We were even able to find Hughes resume, which included contact information.

But before you start calling every music director in L.A., make sure you follow these guidelines we put together from talking with Hughes.

Tips to dealing directly with a music supervisor:

  • Get Your Rights. Make sure you have the rights to have your music placed. If you are a completely independent artist, this should not be an issue, but once you starting signing deals with publishers and record labels, things can get complicated.
  • Do Not Lie. Don’t tell them your song would be perfect for a show when it is not. According to Hughes, not only does this waste her time, but she now knows you have no idea what they are talking about.
  • Research. Explain what attributes of your song work for the show. If the last 30 seconds of the song is the best part, let them know. And if you can tell them what mood the song works best with, that’s even better.
  • Don’t Be A Pest. Music supervisors are busy, don’t ask them the same questions twice, and don’t call them every week asking if they want to use your song.

How to legally record and make money from a cover song

By
Brett
 – August 12, 2010Posted in: Distribution, Legal aspects of the music business, Music Business
How to legally record and make money from a cover song
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Playing a cover song live is one tool in a new band’s arsenal to get people’s attention. Having that song available to iTunes and Pandora audience increases that exposure exponentially. There is more than one way to get the rights to record a cover song, but the easiest is to get the mechanical rights through a company called The Harry Fox Agency (HFA).

HFA represents more than 46,000 music publishers, and has the right to grant licenses on behalf of its publishers to record songs to be distributed for money. Depending on the license, you can put your cover song on CDs, cassettes, records and even sell the music digitally in the form of Permanent Digital Downloads (PDDs), ringtones, limited downloads and interactive streams.

To record a cover song you will need to get the proper license, which is called a mechanical license. A mechanical license grants the right to copy and distribute copyrighted material. If you are a new band, and you don’t expect to sell a lot of copies of a song, you can use the super cheap and easy to use Songfile®. Songfile is HFA’s online licensing tool, you can use it if you plan to make 2,500 copies or less of your recording. It enables you to license for both physical (i.e. CDs, cassettes, etc.) and digital, including PDDs, ringtones, and interactive streaming.

Bands that are going to sell more than 2,500 copies can sign up with HFA as a commercial licensee, similar to record labels and online services. HFA issues licenses that cover most audio-only medium, but they do not issue licenses for audio/visual recordings like music videos.

The nice thing about using HFA is that not only do they issue the licenses for musicians to cover songs, but they also collect and distribute the royalties. There is no need to deal with more than one company.

Yet before you can get a mechanical license from HFA, you need to make sure your cover qualifies for a compulsory license. To qualify for a compulsory license the new version of the song has to follow a few rules:

It can’t be a derivative work. This means you can’t make major changes like rewriting the lyrics, taking out sections of the song, sampling a song or creating a new arrangement.

If you think your cover is going to be considered a derivative work, you need to go directly to the publisher of the work and ask them if they think it is a derivative work. If they do not, you can still get a compulsory license. If they do, you will need to get their permission before coming to HFA for a mechanical license.

According to Maurice Russell, Senior Vice President of Licensing, Collections and Business Affairs for HFA, you can tweak a song a little bit. And moving a song from one genre to another is not usually an issue. It becomes an issue when you start to change the melody or lyrics of the song or you add to the song and make it into a sample.

Since compulsory licenses only cover non-dramatic works, they may not apply to covers of complete works such as musical plays or operas.

As long as the work has been commercially released on a record and your cover song qualifies for a compulsory license (i.e. not a derivative work), you can get the mechanical license to the song and pay a statutory rate. Statutory rates are royalty rates, set by the government, which you must pay for each time you distribute a song physically or digitally. It does not matter how much you charge for the song, the rates are always the same.

Now as this seems like a hassle, bands might be tempted to record a cover song and not get the mechanical rights to distribute the songs. This is a bad idea. According to HFA, even giving this music away for free does not make it exempt from copyright laws. If a musician gets caught distributing copyright protected work, even for free, they can incur a legal claim that amounts to much more than what it would have cost to get a mechanical license.

It may not seem to matter when your band is small and unknown, but if you make it in the music industry people are going to check out what you have done in the past. If your goal is to be successful in the music industry, you better play by the rules.

Book Review: The Musician’s Guide to Licensing Music written by Darren Wilsey

By
Scott
 – August 11, 2010Posted in: Legal aspects of the music business
Book Review: The Musician’s Guide to Licensing Music written by Darren Wilsey
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book The Musician's Guide to Licensing MusicLicensing your music is a great way to start an income stream and generate revenue for your band. Darren Wilsey’s “The Musician’s Guide to Licensing Music” is an in depth look at all of the facets of music licensing.

Not only does he explain all of the licensing terms and opportunities that exist for your music, he gives very good advice as to how to go about getting licensed as well.

With chapters about the players in the industry, agreements, and protecting yourself, Mr. Wilsey’s advice will give you the knowledge to be ready when you have that first meeting with an industry player or contract to sign. The book also gives some really good advice as to how and why to make contacts in the industry if you want to be successful.

Chapters on how to get your music into each of the different media markets are the gravy in this book. With opportunities in advertising, television, radio, internet, films, digital media, and a host of other outlets, the book covers them all and covers them well.

By providing his own knowledge with a mix of advice from players in the industry (quoted throughout the book), Mr. Wilsey’s book is a great place for all musicians to start once they decide it is in their best interest to license their tunes… which it is.

Image by Flickr.com user notsogoodphotography / Ibrahim Iujaz

The basics of music licensing

By
Scott
 – July 12, 2010Posted in: Legal aspects of the music business
The basics of music licensing
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Music licensing consists of giving permission to someone else to use your music or parts of your music. In today’s market there are so many places that your music can find a home beyond CDs, digital downloads, and the stages of the world.

Entering the world of music licensing can open up new ways for you and your band to make money doing something you enjoy – making music. With an ever-expanding cable TV universe, a huge onrush of independent filmmakers, a commercial world, and the internet, music is needed to help these projects convey their messages.

There are four basic types of licensing you should be familiar with:

• Master License – gives permission to someone to use a full song (one song at a time) from your original recording in their project
• Synchronization license – this license is specifically permission to use your song together with a visual image
• Mechanical license – permission to duplicate and sell your audio recording
• Compulsory license – permission to “cover” a song and record, duplicate, and sell it

It is very important to keep track of your music copyrights, who controls the master recording rights, and any licensing you have out on your music. Though these four types of licenses give the basics of what is available, there are many nuances to licensing that go beyond the basics; such as digital uses, ringtones, or importing.

These licenses can bring with them terms of exclusivity or non-exclusivity. Exclusive agreements mean that you cannot offer licenses for that song to anyone else during the term of the license. Non-exclusive agreements will specify if and where you can license your songs to someone else while still under other licensing terms.

With all of these types of licenses floating around, hopefully you can see how important it is to keep track of everything. Signing with a publishing company can help. Being associated with a Professional Rights Organization (PRO) such as ASCAP or BMI will assist in making sure you are paid your royalties if your agreement specifies those types of payments.

The world of music licensing offers your music a larger arena to be heard from. There are a number of resources on the internet that can also help guide you in the right direction if you are seeking to license your music. Sites such as www.filmmusic.com offer lists of classified ads where you can submit songs for films needing music. You can go to agencies like the Harry Fox Agency (www.harryfox.com) for all sorts of licensing needs. Good music business lawyers can find you licensing opportunities, as well as work the contracts for you. However, music licensing (if not done by you) will generally be done by your music publisher.

How to copyright your music

By
Scott
 – June 15, 2010Posted in: Legal aspects of the music business, Music Business
How to copyright your music
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For musicians today, copyrighting your work has become easier with online filing. Once you have decided to file your music with the copyright office, the process is easy.

As mentioned in the “The basics of copyright protection for your band” article, you are afforded the protection of copyright without filing, but once you start dealing with record labels, publishers, licensing, or lawsuits, you are going to have to have your music filed with the copyright office.
At the U.S. Copyright Office website you will be able to find all the information you will need to file both electronically and by mail. Filing electronically will save you $30, however. As of this writing, the fees for filing your music are $35 for e-filing and $65 for mail-in submissions.
There are pdfs and PowerPoint presentations available that you can read and watch which will explain the process to you, but most of it is self-explanatory.

It may seem like a lot of work, but most of it is simple information like names and addresses. Be prepared before entering the filing process. If you are having trouble, either refer back to the tutorials or get help from a lawyer.
When you are ready to register your music, you will need:

  • the names of all the authors of the music (so, you will need to decide as a band who – if not all of you – will be listed as the authors)
  • to choose to whom the certificate will be mailed
  • the year of creation and/or publication (if you have already made and distributed copies of your songs, technically you have already published the works)
  • information regarding the origins of the publication
  • names of claimants or correspondents that you are either signing rights over to or that you are allowing to act in your behalf

All of these issues could be sticky subjects and should be discussed prior to filing. Depending on how you have set up your band as a business, whether you are operating your own independent record label, or working everything as individuals, the information you put on the submission forms may vary.
Once you have gotten to a certain point in the registration process you will have to pay for it either by EFT or credit/debit card.
Finally, you will upload your music files. These are the current file formats you by which you may submit your music to the copyright office:

  • .aif, .aiff (Audio Interchange File Format)
  • .au (Audio File)
  • .mid, .midi, .rmi (Musical Instrument Digital Interface)
  • .mp3 (MP3 Audio File or Layer 3 Audio Compression)
  • .ra, .ram (Real Audio File)***
  • .rmi (Resource Interchangable File Format)
  • .wav (Windows Wave Sound File)
  • .wma (Windows Media Audio File)

Luckily, you can file a complete album as a collection of music and only pay one fee. To obtain a paper copy of the copyright submission form, go here.
Here is one last note about how music copyrights work when you write music as a work-for-hire. Work-for-hire is when you write music for a company like a jingle. In this case, the company owns the music and will also own the copyright.

References
Copyright.gov. United States Copyright Office, July 2008. Web. 1 June 2010. .
Passman, Donald S. All You Need to Know About the Music Business. New York: Free Press, 2009. Print.
Twomey, and Fox. Anderson’s Business Law and the Legal Environment. Mason, OH: Cengage Learning, 2008. Print.
Wilsey, Darren, and Daylle Deanna Schwartz. The Musician’s Guide to Licensing Music. New York: Billboard Books, 2010. Print.

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The basics of copyright protection for your band

By
Scott
 – June 9, 2010Posted in: Legal aspects of the music business, Music Business
The basics of copyright protection for your band
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The legal side of the music business is probably one of the most ignored (or feared) parts of being in a band or being a musician. Even the basic laws that are designed to protect us are often overlooked or seem too confusing to bog ourselves down with. It really isn’t that difficult.

Copyright law is fundamental to all musicians (and all creative persons.) Learning and understanding the basic laws that protect your music should be a priority as you and your band progress through the steps of your music careers.

For this research, we will assume that all works are originating from within the United States. Cutting through the history and reasons behind the copyright laws, let’s get straight to what is and is not protected by the copyright laws.

A copyright is the protection given under the United States law to authors of “original works.” As the author of your songs, you are granted these rights and may pursue legal action against anyone who violates these rights. The protections you get with a copyright are the rights to:

  • reproduce copies of the work
  • produce alternate versions of the original (prepare derivative works)
  • distribute copies of the work to the public or transfer ownership
  • display the work publicly
  • perform the work publicly

One of the more confusing things about the law is whether you have to actually file with the United States government to obtain a copyright. The answer is that you DO NOT have to register your work to receive copyright protection. In the case of a song, it is considered copyrighted once you have recorded it (onto a tangible format.)

The key for musicians in copyright law is that your songs are not considered copyrighted until you have recorded them. Playing songs in your garage, basement, or live, does not constitute a copyright. You must record the song first before it is afforded copyright protection.

The above protections are for songs and lyrics (as well as a list of other creative works.) Other aspects of your band and image, however, are not protected by copyright laws. For some of the following, we will have to explore other aspects of the law and file for other protections such as trademarks or patents (which we will discuss in another article.) Copyright law does not cover:

  • works not fixed in tangible form (i.e. choreography that is not written down)
  • titles, names, slogans, phrases
  • ideas
  • works consisting of no original authorship

So, if you are afforded the rights to copy without filing with the government, why should you file? The quick and simple answer is that if you ever have any legal action concerning any of your songs, you are going to have to register anyway. This goes for someone trying to sell your music without your permission, possible licensing problems, or even piracy of your music. You will also need to register your copyrights when you get into record deals or distribution through other companies.

In a future article, we will discuss how to go about registering a copyright with the government. It’s pretty simple. If you still have questions or are confused about something regarding copyright law, check out one of the resources used for this article or contact a lawyer in the music business.

If you think your music career is at the point you need copyright protection, it is time to get some serious help. Below we list the most basic sources you will need (not including a lawyer) to understand the specifics of music law.

Image from Flickr user Horia Varlan

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Why you still want a record label (for now) even as they are dying

By
Brett
 – June 4, 2010Posted in: Interviews, Legal aspects of the music business
Why you still want a record label (for now) even as they are dying
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Music lawyer Donald S. Passman talked with us at Detone8.com about the current state of the major labels, getting their attention and the first thing every band needs to do.

Late last year Donald S. Passman released the seventh addition to his book “All You Need to Know About the Music Business,” and we interviewed Passman about the changes to the book caused by some dramatic shifts in the music industry.

“There has been a huge change from the last edition,” Passman said.

For fans, the most recognizable changes in the music business have been listening to interactive streaming music online with companies like Pandora, and it’s an issue the industry wrestled with right up to the publication of the book. Yet the biggest change to this version of Passman’s book is how the new 360 deals work.

The 360 deal is one of the last ditch efforts by record labels to stay afloat. Simply put, this new contract will not only split the profits from record sales with musicians and labels, but record labels now want a piece of every dollar a band makes. This includes digital sales, merchandise and even performance profits from live shows.

It’s an unprecedented way for record labels to stay afloat, although they have a strong argument in favor of the 360 deal Passman said. It’s not fair that record labels put up most of the money to get a musician off the ground and not share in all of the profit that comes with success.

And the worst part is that this maybe one of the best options for bands right now. As long as record labels are the key holders to major success in the industry, all other business plans are untested. Passman said he has yet to see any completely independent band break into the mainstream.

There is so much competition that even Internet sensations like Justin Bieber have signed with major labels to get mainstream exposure.

“There is what, 7 million bands on Myspace right now, so how do you break through that noise,” Passman asks.

Yet as much as the labels are hoping the 360 deal will save their business model, Passman has yet to see any results. “It’s too early to tell,” he said.

It seems even the experts like Passman are unsure of the future of the industry.

To sign or not to sign is purely academic if you are not even getting noticed by the labels in the first place. So, what is the first thing a band needs to do? Get it in writing.

You don’t need to cough up several hundred dollars it takes to create a business before you make any money, but Passman recommends putting an agreement in writing.

Before the band ever takes in one dollar you need to write down how the band will make decisions, who owns the name and assets of the band and how to kick someone out or bring a new person in. Then everyone signs it.

Passman warns it is harder than ever to get signed. There are less labels, less money and fewer deals made. But the keys to getting signed have stayed the same. You need to build a buzz, a story and learn to manage your fans.

Key Info from music lawyer Donald S. Passman: Before your band makes one dollar put an agreement in writing.

image from flickr.com user NobMouse

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