“Just ’cause they’re your manager don’t mean they ain’t jacking your ass.”
-Bo$$, former Def Jam artist (quoted from the book, Def Jam, Inc.)
Okay, so maybe there is a love/hate relationship between artists and their managers. But, at the end of the day, a (good) music manager enables the artist to focus on the craft of making music. The manager frees up significant amounts of time otherwise dedicated to administrative tasks. Having a manager, however, is not a free pass to be ignorant to the role of business. After all, the music business is two words for a reason. Music is a business. And if you are an artist serious about carving out a career from your music, you also need to be serious about the business side. Artists have a responsibility to understand the deals that their managers and lawyers negotiate for them.
One of the first legal contracts that many artists sign is the management agreement. Any artist signing such an agreement is best advised to seek legal advice on the terms of the deal. Not every management contract is created equal. But equally surprising, many managers and management companies don’t have a written contract protecting there own interests – a huge mistake given all the effort (and oftentimes, money) spent in developing an artist’s career. While a handshake deal is admirable, it can’t possibly account for all the legal terms necessary to ensure a manager is compensated for the front-end investment made in representing an artist.
The management agreement is a crucial asset for every manager. Once you have one in place, you can use it as your template for negotiating with artists at every level. The length of the term or manager fee might vary, but the overall language will not. Provisions in a management agreement (or any contract, for that matter) are generally based on the relative bargaining powers of each party. The following are just some of the provisions contained in a management agreement:
Length of the Term: While it is easy to specify that the term will last 1 year, 18 months, 3 years, etc… additional consideration is needed. Does the term automatically extend for an equal period of time? Is renewal of the term dependent on a revenue achievement (e.g. artist earns X dollars during the initial period) or entering into a particular deal (e.g. record label, tour, sponsorship)? From a manager’s POV (point of view), the term should be a reasonable amount of time to reflect the length of time it will take to develop the artist. It would be a shame to only have a one-year term with a new act (without built-in renewals), only to witness another manager swoop in and benefit from your hard work in that first year.
Manager Fee: A manager fee typically varies between 10-20%. But, a percentage of what? Gross monies? Are there deductible expenses? Is it limited to specific revenues streams? Is the manager fee firm, or does it increase/decrease dependent on artist revenues – for example, the manager fee is 10%, but it increase .5% for revenues exceeding $50,000, another .5% for revenues exceeding $100,000. A manager that simply agrees to a straight percentage could be missing out on additional earnings.
Sunset Clause: In the event an artist terminates the management agreement or both parties agree to sever ties, does the manager still earn the manager fee on the artist deals entered into during the term? At what base percentage? For how long? Collecting a manager fee after the term of the management agreement is known as a sunset clause. Though a manager should not collect a fee forever, a manager is justifiably entitled to a percentage of those earnings for a limited period of time after the end of the term. This is a crucial provision that should be in every management agreement – it might not stay, depending on the leverage of the artist; but a well-drafted sunset clause can be the difference of thousands of dollars.
If you are a manager that is serious about a long-term career in the music business, having a go-to management agreement is essential. Investing in one, and developing a relationship with a music lawyer that provides on-going legal advice as you negotiate specific terms of each artist deal, is a very important third step. First step, decide now that you want to be in the music business (and not just in music). Second step, find an artist you believe in. Then, hire a trusted legal advisor to draft the ever-important artist management agreement.
Long gone are the days when a band could just be a band – when the record label executive whispers in your ear, “I hope you’re ready, kid, because you’re about to go on one hell of a ride” (quote from Roulette Records founder Morris Levy, from the book “Me, the Mob, and the Music” by Tommy James). While the band recorded and performed the music, it was the record label behind the scenes transforming songs into hits – tour support (sort of), money for production (sort of), and most importantly, radio “promotion” (most definitely). The musician’s psyche was to play music, be a performer, find hit songs and record them; it was not directly focused on developing an identity, a brand.
And while there are always exceptions to the rule, the accepted paradigm has been that bands play music and companies (brands themselves) develop band awareness. But these days, the band is just another commodity to the company (record label, production house, corporate sponsor, etc…). Sure, if you provide a return on the investment, the company will keep you around; but fail to deliver financial returns, and you’ll soon be back in the land of anonymity. And while the DIY era empowered artists and bands to develop their own identities through access to relatively inexpensive recording equipment, online merchandise stores, and millions of fans waiting in the wings on the Internet, most DIY’ers and signed artists are still missing the most important aspect of these new found freedoms and abilities – b®anding.
A band is a business, an entity that needs to create, develop, and sustain a brand identity. There are three main reasons for creating brand identity:
Establish a consistent, uniform identity so that fans can remain loyal. This doesn’t mean that a band must be pigeon-holed into a particular style of musicality. Your music, first and foremost, and then your design features are what attracts and retains fans. They want to be a part of something bigger then themselves.
Separate your band from the clutter. The statistics are staggering: according to Soundscan, of the 200,000 album releases in 2009, only 1,319 sold 10,000 copies or more – a good benchmark for sustaining longevity. That’s .65%! Less than 1%. Its not good enough to simply distribute your album on iTunes or set up a website. No one will find you. The music business is very crowded right out of the gates. Your band needs to rise above the clutter – a brand identity (along with great songs) should be your driving force. And like success in any industry, developing your brand and, ultimately your band, takes time and consistency. The music business is a marathon, not a sprint. Start thinking long term.
Develop merchandise and endorsement deals. Great music and show performance assists in creating your band’s identity. It helps you sell your music. But these days, music sales aren’t enough. It is the music that enables your band to do so much more. Music = Band Identity = Brand = Merchandise and Sponsorships. While t-shirts, hoodies, and other clothing options are important, you have to begin thinking about merchandising opportunities that are unique, consistent with the brand awareness you are trying to establish, and will enable to you separate your band from the rest. It is also crucial that your band seek out synergistic sponsorship opportunities.
Think creatively. And while endorsements are best left to a band manager to work on, you might not have that luxury when first starting out. Back when Run-DMC recorded the song, “My Adidas”, Run asked all the fans at the concert to show him their Adidas. Run-DMC’s manager recorded it, sent the video to Adidas. Adidas offered them a $5 million dollar endorsement deal. The point, however, is not to sell out for money. It is to establish your band’s identity through brands that you already support, brands that have a loyal fan base, brands that you promote you to that fan base – its called natural synergy. And while it doesn’t start at Run-DMC levels, it should start somewhere.
This is the music business. Passion should drive your music. Branding must drive your business. It requires thought and planning. Focus on quality and appearance. Hire a graphic artist to select a distinguishing font for the band name, create a sick logo. You are responsible for your identity. Long gone are the days where you can sit back and wait to be taken on that “one hell of a ride”.
From a legal standpoint, a lot of thinking needs to be done before your band name is selected or a logo is pressed onto hundreds of t-shirts. The world of branding revolves closely around trademark law. In Part Two, we’ll take a closer look at the importance of obtaining a registration for your brand with the United States Patent & Trademark Office.
Disclaimer: The materials contained in this blog posting have been prepared by Beame & Mencher LLP for informational purposes only and are not legal advice or counsel. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Online readers should not act upon any information in this posting without seeking professional counsel. The information contained in this posting is provided only as general information, which may or may not reflect the most current legal developments.
This is a multi-part blog series, “§115 of the U.S. Copyright Act Overrides Controlled Composition Clause?”
In Part One, we explored a brief history of songwriters and songs in the record business, and introduced the potential impact that §115 of the U.S. Copyright Act may have on the application of record labels’ Controlled Composition Clause to “digital phonorecord delivery”.
Songwriters have always been an integral part of the recording process – most performing artists relied on the talents of songwriters to bring them hit songs. Songwriters (and their publishers that usually owned the songs) were the gatekeepers. They owned the songs, so they could control which performing artists recorded their songs. Then, with the enactment of the Copyright Act of 1909, Congress took that control away. Going forward, any third party could obtain the right to record a song (via a license through the U.S. Copyright Office) after the owner of that particular song made a “first use” – the compulsory or mechanical license was born. Along with this forced license (though the parties could still negotiate directly, sidestepping the government process) came a mechanical royalty rate fixed by the U.S. Copyright Office. From 1909 until the enactment of the 1976 Act (on January 1, 1978), the mechanical royalty rate was 2.0¢ per song made and distributed. When the 1976 Act took effect, the mechanical royalty rate increased for the first time to 2.75¢. Not wanting to pay the increased mechanical royalty rate, record labels drafted a clause in their artist contracts limiting the amount of mechanical royalties they paid to 75% of the then-current rate. This clause became industry standard, and is widely known as the Controlled Composition Clause (let’s call it a “Controlled Comp” for short).
In Part Two, “The Evolution of the Mechanical Royalty”, we’ll dig deeper into the evolution of the compulsory license and mechanical royalty rate and then look at how a Controlled Comp circumvents the royalty structure established by the Copyright Royalty Board (CRB). Part Three, “A Closer look at the Controlled Composition Clause”, we’ll discuss the details of this contractual restraint on mechanical royalties and ultimately, identify the effects it has on recording artists (and songwriters/producers that agree to it).
The Right of Reproduction.
When a copyrightable work is created, it automatically is copyrighted. Literally, lyrics written on to a napkin would qualify as a protected copyright. A song was traditionally created on sheet music – musical notation and accompanying lyrics; and now it is more commonplace for a song to be created simultaneously with the recording of the song. However created, it becomes a protected work. Under United States copyright law, songs are referred to as a “musical works”. And under the Copyright Act of both 1909 and 1976, the author of a musical work has rights over the reproduction and subsequent distribution of that work.
Prior to the enactment of the 1909 Act, however, protection of a musical work generally extended only to the right of performance and a narrowly defined reproduction right (i.e. copies of sheet music). The scope of the reproduction right was tested in 1908, when the U.S. Supreme Court ruled that a piano roll did not constitute a reproduction of the musical work since it could not be “read” similar to that of traditional notation – it was simply part of a device enabling a mechanical performance of a musical work.[1] The 1909 Act closed this loophole by granting authors of musical works the right of reproduction, including the right to make “mechanical” reproductions (such as the piano roll, and placement of a song onto “phonorecords”[2] such as vinyl, cassette tapes, and compact discs).
This right was not absolute. An absolute right would have prohibited piano roll manufacturers and recording companies from reproducing songs without songwriter authorization. Congress feared that this would grant songwriters (and those that owned songwriter catalogs) monopolistic control over the mechanical reproduction to their musical works. The 1909 Act carved out a major limitation to this reproduction right: once the owner of a musical work “made or authorized the recording” of a song – a first use – the owner no longer controlled the right of mechanical reproduction to that work. Alas, the compulsory license was born.
The Compulsory License to Mechanical Reproductions.
The compulsory license (also known as a “mechanical license”) remained intact with the enactment of the 1976 Act. The new act did, however, revise the meaning of “first use” to include any distribution of the song to the public embodied in a phonorecord (this was primarily to prevent the treatment of a demo recording not distributed to the public as a first use, as was the case under the 1909 Act). So while song owners still controlled all other reproductions of a particular song (sheet music, synchronization licenses, etc…), once an authorized and qualifying first use was made, any third party could obtain a compulsory license to reproduce that song and distribute it via a phonorecord (mechanical reproduction).
In exchange for granting this licensing opportunity to interested third parties, Congress ensured that song owners would be compensated for the use in the form of a royalty – a mechanical royalty. As discussed above, the mechanical royalty set by the then-empowered Copyright Royalty Tribunal (CRT) was 2.0¢ per song per phonorecord made and distributed. This rate endured for 68 years[3], until the 1976 Act increased the rate to 2.75¢. Through a series of administrative proceedings, first by the CRT then the Copyright Arbitration Royalty Panel (CARP), the mechanical royalty rate increased periodically.[4] The current rate is 9.1¢.
When the compulsory license was first enacted, Congress also included a mechanism by which third parties could provide song owners with notice of the intended mechanical reproduction and make the applicable royalty payments. While the mechanism by-passed the need to license directly with the song owner, it was (and still is) a fairly complex and bureaucratic process nonetheless. Most parties interested in obtaining a compulsory license would likely be better off seeking it directly from the song owner, or the song owner’s representative (such as the Harry Fox Agency, established in 1927 by the National Music Publisher’s Association (NMPA) for the purpose of granting mechanical licenses).
But a direct license from the song owner or its authorized agent did not have to match the royalty rates established by the CRT and CARP. The song owner could agree to a lesser rate (and could even ask for a greater rate, but in that case, the requesting party could bypass a direct license by obtaining it at the then-current rate through the compulsory license process). Of course, a song owner would likely never voluntarily agree to a lesser rate unless the requesting party had the upper hand…
Sources of Publishing Income.
The music publishing industry is a very lucrative business.[5] The U.S. Copyright Act grants the owners of musical works a number of exclusive rights – most importantly, the rights to public performance and reproduction – which enable them to assign value to their copyrights and accordingly, charge for the use of those copyrights. Sheet music reprints and mechanical reproductions of musical works onto piano rolls were some of the earliest “exploitations”[6] of musical works. And while there are various ways in which to exploit a musical work, the three major sources of income today include:
Public Performance. The public performance right in musical works grants song owners expansive rights to collect monies for numerous performances of those works. Most notably, the public performance right includes broadcast on terrestrial radio (AM/FM), television, and certain qualifying online performances. The right to collect these monies has been traditionally delegated (for good reason) to performance rights societies – in the United States, this includes the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC (originally known as the Society of European Stage Authors & Composers, but now no longer applicable). The monies paid directly to songwriters and their affiliated publishers can be substantial.
Synchronization. The placement of music over visual images is known as synchronization, and the license a synchronization license. The most common placements are in films, television productions, and commercials. And like public performance royalties, the monies earned can be substantial.
Mechanical Reproduction. From the piano roll to the modern-day digital phonorecord delivery (which is treated as a mechanical reproduction), songs have always played an integral role in the recording industry. Each reproduction offered song owners a guaranteed payment. Perhaps piano rolls didn’t bring inspiring amounts of mechanical royalties, but the more popular vinyl, cassette tape, and compact disc was a boon to the publishing industry. Place a song with a recording artist, sit back, and wait for royalties to begin rolling in. The mechanical reproduction really drove other sources of publishing income – get a song recorded, and then it will be played on the radio and licensed for synchronization rights.
Mechanical Royalty. Meet the Controlled Composition Clause.
Songwriters and their songs were highly sought after by recording artists and their record labels that were looking for the next hits. At 2.0¢ per song contained on each phonorecord, this was a small price to pay by a record label that stood to earns thousands (if not millions) of dollars on the recorded version of that song. To be clear, the party producing the recording (primarily a record label) had to pay the mechanical royalty rate.
When the mechanical royalty rate increased, for the first time in nearly 67 years, record labels didn’t want to absorb this additional expense. But, a song owner was never obligated to negotiate a license for mechanical reproduction at less than the statutory rate. Record labels couldn’t force the song owners’ hand. If a song owner refused to negotiate for less, the record label was stuck with the compulsory license process, at the then-applicable rate.
Record labels still had a few tricks up their sleeves… A recording contract is between a record label and a performing artist (or band). In return for recording a song, the artist was paid a record royalty. Simultaneously, the record label paid a song owner the mechanical royalty. While the record label couldn’t lessen the mechanical royalty rate ultimately paid to a third party song owner, it could insist on a lesser rate for a performing artist that was also a songwriter. If a performer/songwriter wanted a recording contract, they’d have to agree to a decreased mechanical royalty rate for the songs controlled by the artist. When the rate increased from 2.0¢ to 2.75¢, the record labels asked for a 25% reduction to the mechanical royalty rate (“75% of statutory” or whatever amount agreed to) for all songs controlled by the artist. This contractual power grab has become industry standard, and is commonly referred to as the Controlled Compositions Clause. And the “controlled” part extended beyond songs written merely by the artist – it included songs written or controlled by producers, co-writers, and any other parties wherein artist had a direct or indirect ownership interest.
But, the Controlled Comp didn’t necessarily impact an artist that wasn’t a songwriter or couldn’t get a “non-controlled” song owner to agree to the reduced rate. The record label still had to pay the full statutory rate. The Controlled Comp, while it couldn’t force a complete override of the mechanical royalty, could limit the amount of royalties a record label was prepared to pay out on behalf of an artist. Any amount above the limit set by the label would be the responsibility of the artist. And if the artist was not prepared to pay the overage up-front, the record label would simply reduce it from the record royalty otherwise payable (or add it to the unrecouped advance if the artist wasn’t entitled to a record royalty yet).
The recording industry successfully found a way to limit the impact of the increased mechanical royalty rate. It seemed as if the tables reversed between song owners and record producers. Songs are still highly sought after (especially for the first use), but record labels have the luxury of shopping around for a song owner that will agree to the reduced rate. And, if a song is already recorded and set for release (no turning back), the record label can always shift the liability for the mechanical royalty above the Controlled Comp rate back to the artist.
The Copyright Act grants recording companies the right to supersede the provisions of the compulsory license through contractual agreement. Hence the Controlled Comp. But what if Congress, through the Copyright Act, precluded such a practice for mechanical reproductions made by “digital phonorecord delivery”?
In Part Three, we’ll explore the intricacies of the Controlled Comp as it applies to traditional forms of mechanical reproductions. And then Part Four will introduce §115(c)(3)(E) – a provision buried in the Copyright Act purporting to prevent contractual agreements that reduce the mechanical royalty rate for digital phonorecord deliveries.
[1] White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1 (1908).
[2] A “phonorecord” is defined as “re material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed”, and generally understood to include vinyl, cassette tapes, compact discs, and even hard drives. 17 U.S.C. §101
[3] The 1909 Act took effect on July 1, 1909 and the 1976 Act took effect on January 1, 1978.
[4] 37 CFR Part 385 – Federal Register Vol. 74, No. 15 Pg. 4509
[5] It remains even now, though current profits appear to be flat lining among the major publishing companies in the United States.
[6] The use of the word “exploitation” is an industry term with a positive connotation.
Brian Mencher is a partner in the law firm of Beame & Mencher LLP. He is one of the foremost experts on §115(c)(3)(E) of the U.S. Copyright Act of 1976 (among many other areas of the law!). Beame & Mencher LLP is a boutique law practice based in New York City providing legal advice and counsel primarily in the entertainment industries. We are forward-thinking, outside of the box, attorneys. Our firm focuses on the representation of creative and entrepreneurial people and companies involved in music, tv/film, theatre, dance, entertainment, new media, and technology.
Beame & Mencher LLP recently submitted our Songwriters Law Seminar for consideration to SXSW2011. We made in through the 1st round! Read the description below, and then go to the SXSW Panel Picker to give our panel a “thumbs up”. Coming off a great NYC debut, the Songwriters Law Seminar is an informative presentation given by two very cool music lawyers. Visit the SXSW Panel Picker here.
Highlight from SLS: The Songwriters Agreement
The Songwriters Law Seminar is a comprehensive exploration into the business of music, songwriters, and music publishing. The presentation begins with an introduction of the role the U.S. Copyright Act plays in the music industry, including an explanation of the often-confused differences between songs and recordings. We will then identify the function of the music publisher in representing and promoting songs. This discussion will also outline the different publishing deals and the material terms of music publishing agreements. The seminar next advises attendees on how to establish their own publishing companies, from registering with a performing rights organization to creating a business entity from which to operate from; and then presents the material terms of music licensing opportunities (e.g. motion picture synchronization, video games, commercials). From here, we’ll discuss the role of the various music organizations – performing rights societies, the Harry Fox Agency, SoundExchange, and others – and learn how to take advantage of their services. Finally, we’ll examine the interaction of the recording contract on the rights of a songwriter, including the impact of the “standard” controlled composition clause on a singer-songwriter’s royalties and new rights demanded by record labels via the 360 deal that involve music publishing. This Songwriters Law Seminar is an excellent introduction into one of the most lucrative areas of the music business.
How does Copyright Law apply to songwriting and collaboration; and how can I protect my ownership in my creations?
What is a music publisher, when do I need one, and what are the material terms of a music publishing contract?
Can I start my own publishing company, and what are the material terms of particular licensing opportunities (e.g. motion picture synchronization, video games, commercials)?
Who are the various music organizations (PROs, Harry Fox, SoundExchange) and what role do they play in my career?
How does a “Controlled Composition Clause” in a recording contract affect my rights as a singer-songwriter, and what is the impact of 360 deals (if any)?
Disclaimer: The materials contained in this blog posting have been prepared by Beame & Mencher LLP for informational purposes only and are not legal advice or counsel. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Online readers should not act upon any information in this posting without seeking professional counsel. The information contained in this posting is provided only as general information, which may or may not reflect the most current legal developments.
What?
The title of this post alone raises many issues; issues that could have a significant impact on songwriters, publishing companies, and performing artists (that are songwriters) in a mostly positive way, and a potentially not-so-positive impact on record labels, big or small, major or independent. As we dig deeper into the affects of §115 of the U.S. Copyright Act on the recording industry, we’ll learn why and how a few paragraphs within this one provision could mean the difference of millions of dollars. So buckle up and prepare for a bumpy ride through a brief history of the recording industry’s “standard” business practices, and how the digital revolution and the laws that are trying to keep up with it are challenging the ways record labels prepare to do business in the future.
Once upon a time…
Performing artists couldn’t didn’t write their own music. They relied on songwriters, composers, and the music publishing companies that represented songwriters and composers to provide them fresh material. When a song was recorded, the performing artist (through its record label) had to pay for the inclusion of that song on a phonorecord (vinyl, 8 track, cassette tape, compact disc, etc…). This specific use was (and is still) known as a mechanical reproduction. Under the U.S. Copyright Act of 1909, the price for a song was 2¢ per phonorecord “made and distributed”. Accordingly, if one songwriter placed two songs on an album (uh, a phonorecord) and the record label pressed and distributed 1,000,000 copies, the record label would have to pay the songwriter $40,000 (2¢ x 2 songs x 1,000,000).
And that was the rate songwriters were paid for mechanical reproductions of their songs for 68 years. Enter the U.S. Copyright Act of 1976. (Note: For those good with numbers, you’ll catch that there are only 67 years between copyright laws. While the current Act is referenced by the year 1976, it did not take effect until January 1st, 1978.). Guess what? For the first time, the statutory rate for mechanical reproductions increased – starting in 1978 the new rate per song was 2.75¢. Under our example above, a record label would now have to pay $55,000 or a difference of $15,000. This was just for two songs on one album that only sold made and distributed a million copies (despite the “made and distributed” language, record labels were insistent on paying mechanical royalties only on album “sales”.)
It was then that the light bulb went off! Record labels figured that if they only paid, say, 75% of the then current mechanical rate, they would be able to keep costs on mechanical royalties to near-1909 levels (based on a 75% rate in 1978, payment due on the above example would have been $41,250). The controlled composition clause, that placed limits on the statutory rate for mechanical reproductions, was born.
This clause is one of the most important provisions of a recording contract. It’s impact can be disastrous to performing artists (whether those artists write and own their own music or not). It also reduces the monies payable to songwriters that agree to license their songs at less than the minimum statutory rate. But lurking within §115 of the 1976 Act is language suggesting that a controlled composition clause in a record contract will not apply to sales of albums distributed via “digital phonorecord delivery” (the exact paragraph is §115(c)(3)(E)).
The language of this provision, however, raises numerous uncertainties about its application to controlled composition clauses and the general business practices of recording companies. The stakes are high enough that those affected by this provision will push back from it, making every argument for why it does not apply in various situations. This Blog Series, “Welcome to the Digital Revolution - §115 of the U.S. Copyright Act Overrides Controlled Composition Clause?”, is going to jump head first into this topic. In case you haven’t already, check your seatbelt!
Brian Mencher is a partner in the law firm of Beame & Mencher LLP. He is one of the foremost experts on §115(c)(3)(E) of the U.S. Copyright Act of 1976 (among many other areas of the law!). Beame & Mencher LLP is a boutique law practice based in New York City providing legal advice and counsel primarily in the entertainment industries. We are forward-thinking, outside of the box, attorneys. Our firm focuses on the representation of creative and entrepreneurial people and companies involved in music, tv/film, theatre, dance, entertainment, new media, and technology.
Singer-Songwriters & Recording Agreements: Implications on Publishing
On July 17th, please join the law firm of Beame & Mencher LLP for Part Three of the Songwriters Law Seminar. The event will take place at The Living Room in New York City from 4:30p-6:30p. To register, click here.
Part Three of the Songwriters Law Seminar focuses on songwriters that are also recording artists. This part explores the interplay between songwriting, publishing deals, and recording contracts – examining the differences in copyright protection between musical compositions (songs) and sound recordings (masters), highlighting the impact of the controlled composition clause of a recording agreement on a songwriter’s publishing, and looking to the role of the “360 deal” on the future of music publishing (if any).
Musical Composition & Sound Recording – Knowing the Different Rights and Organizations.
Which Came First?: Publishing Deal or Recording Contract.
The Impact of the Controlled Composition Clause on Publishing.
“360 Deals” and their Impact on Music Publishing (if any).
Beame & Mencher LLP is a boutique law practice based in New York City providing legal advice and counsel primarily in the entertainment industries. We are forward-thinking, outside of the box, attorneys. Our firm focuses on the representation of creative and entrepreneurial people and companies involved in music, tv/film, theatre, dance, entertainment, new media, and technology.
On June 4th, 2010, David Beame was invited to speak at the Florida Chapter of the National Academy for the Recording Arts and Sciences (the organization that hosts the Grammy Awards). The panel, entitled “Brave New World: Music in the E-Marketplace” explored the use of new technologies and creative promotions for making it (and breaking it) in this new world of music.
Check out the following excerpt:
(from L to R) Ted Cohen, Melanie Masterson, Jessica Bailis, David Beame, Neill Crilly
Beame & Mencher LLP would like to congratulate William B. Wingfield for starring in the Tony award winning musical, In The Heights. On June 6th, 2010, Will completed his 9-month tenure as principal dancer and featured performer, Graffiti Pete. He was a finalist on Season 4 of the Fox hit show, So You Think You Can Dance, and was recently featured on the front page of Dance Magazine (January issue) as part of the Top 25 Dancers to Watch in 2010.
The Public Performance Right in Musical Compositions
On June 12th, 2010, Beame & Mencher LLP held Part One of the Songwriters Law Seminar at The Living Room in New York City. Part One, entitled Copyright & Collaboration, explored issues of copyright that affect songwriters and the mechanics of songwriter collaboration. During our discussion on the bundle of rights granted under the Copyright Act, we focused in on the right of public performance. To register for Part Two & Part Three, go to bmlawgroup.eventbrite.com. The following is a short clip from that part of the seminar:
The Songwriters Law Seminar is a three-part series exploring the business of music, songwriters, and music publishing. In part two of the seminar, we’ll introduce the role of the music publisher. This part explores the different types of publishing agreements and the particular deal points to be negotiated. We will also discuss the major deal terms of any licensing contract, focusing on licenses for film, television, commercial, and video games. At the conclusion of this seminar, we’ll discuss the importance of treating your career like a business and walk you through the steps for creating your own business as songwriter/self-publisher; and we’ll present the additional factors a business person should consider in creating a full-fledged publishing company.
The role of a music publisher.
Material contract terms of a co-publishing and administration agreement.
Other music licenses and the important deal points to negotiate.
Starting your own music company – business formation 101.
And entertainment lawyers are some of the most connected professionals in the industry. An established entertainment lawyer can streamline your demo direct to the decision-makers… but too often, musicians overly rely on the role of lawyer in “shopping” the music deal. A lawyer’s connections alone will usually never get you a record deal (of course, there are exceptions). First and foremost, the music industry is a business – if you cannot prove that you will be a return on a business’s investment, it is very unlikely that a lawyer can get you a deal. The lawyer does, however, play an integral role in a musician’s career – and this does include introducing the musician to record label executives when the musician has some leverage.
I get at least one e-mail or demo submission every week (usually more) from a band or musician asking me to shop them to a major label. There are plenty of lawyers that will agree to shop an artist for a fee – in this case, shopping merely means submitting the artist’s demo along with a letter from the attorney on official letterhead. We do not do this. Our law firm does not shop.
Artists need to understand that connections or talent alone will never equate to a record deal. Record labels want to see independent record sales, real MySpace numbers (or other online music sites), a touring schedule, merchandise sales, and general media buzz (whether it be from local sources or via online social networking). The role of the lawyer (along with the manager) is to assist you in developing these components into a viable and sustainable business – we are here to form a business entity for you, protect your intellectual property, negotiate license deals, create a solid infrastructure for you from which to take your career to the next level, and yes, get you in front of label executives.
But consider this: if a lawyer has the option to “shop” an existing client that has developed a relationship with the lawyer OR shop an artist that only wants to be shopped, the answer seems obvious. Maintaining and protecting one’s reputation is crucial in this industry, and that means being extremely selective about when it makes sense to leverage contacts for a client. So the next time you think about sending a lawyer your creative materials to be “shopped”, think instead about sending your statistics and sales numbers.
Music is about creativity; the music business is about spreadsheets and returns.
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Beame & Mencher LLP would like to congratulate William B. Wingfield for starring in the Tony award winning musical, In The Heights. On June 6th, 2010, Will completed his 9-month tenure as principal dancer and featured performer, Graffiti Pete. He was a finalist on Season 4 of the Fox hit show, So You Think You Can Dance, and was recently featured on the front page of Dance Magazine (January issue) as part of the Top 25 Dancers to Watch in 2010.