John P. Strohm is a transactional entertainment and intellectual property attorney with the firm Johnston Barton Proctor & Rose LLP . John’s practice focuses on the representation of musicians, songwriters and independent record labels. Prior to becoming an attorney, John was a professional musician and producer for over a decade. He performed and recorded as a member of several notable alternative pop/rock acts, including The Lemonheads and Blake Babies.

 

The first recording agreement I had the pleasure of signing as a recording artist was a typical, label-friendly, multi-option contract. The anemic royalty, based on the “suggested retail price,” was further depleted by container deductions, deductions for so-called “free goods,” and paid on only 90% of net sales to account for records damaged in shipping (as they often were in the dark ages of shellac discs).  In essence, it was a scam, though a scam that had evolved and had become accepted as industry standard.  I had no idea how lousy the financial terms were for my band at the time. When I finally learned enough about the business to understand the deal terms, I felt duped and angry at our attorney for failing to adequately explain the contract to my band.

I felt much better about the terms of my next deal: a handshake agreement with a startup indie to split all profits from any releases 50/50. We didn’t address territory, ownership of the masters, mechanical royalties, what constitutes the label’s “costs,” or even exclusivity between artist and label. Not surprisingly, we eventually had to fill in some of these terms under somewhat less amicable circumstances.

Now that I spend most of my time representing artists and labels in recording agreement negotiations, I have realized that my experience reflects the two basic types of recording agreements in the late 1980s/1990s industry. On the one hand, majors and some independents insisted upon very formal, generally label-friendly and traditionally-structured deals, and on the other hand certain independent labels offered rather informal net profit split agreements, which were often verbal agreements striving to provide the antithesis of what was widely regarded in the indie community as the outmoded major label-style deal. Both of these models have flaws, and both basic structures exist today, albeit often in slightly more evolved forms.

The challenge that enlightened indie labels, career-minded artists, and counsel for both face today is how to structure and draft a workable written agreement that retains the independent spirit and intrinsic “fairness” of the aforementioned handshake deal. This article is the first of several I will write about net profit split recording agreements; future articles will focus on certain specific issues that are briefly addressed in this introductory piece. Below I will summarize certain key terms that should be considered and addressed in any such agreement.

Ownership of Master Sound Recordings

The question of ownership of the master sound recordings is a key term in any recording agreement. The trend today with independent labels is toward record companies licensing the exclusive rights in master recordings from artists instead of owning the copyrights in the underlying masters. Nevertheless, often a first draft of the contract – even in net profit split deals – is structured so that the label owns the masters. Thus, retaining ownership becomes a key negotiation point. Typical license terms for master recordings range from five to thirty-five years.

Significantly, under United States law any transfer of ownership of sound recordings must be in writing and signed by the transferor to be effective. Thus, any verbal agreement that purports to transfer ownership of masters is void. Furthermore, any license agreement with respect to sound recordings must be in writing or is terminable at will by either party. In a recent federal case, the Butthole Surfers won on appeal in a suit against Touch and Go Records to terminate a verbal license agreement with respect to numerous valuable albums recorded by the band. As such, it is enormously important for any label to insist upon a signed contract for any recording agreement.

Controlled Compositions Clause

In recording agreements, songs that are written in whole or in part by the artist are called “controlled compositions.” Traditionally, labels pay the writers of controlled compositions a royalty – referred to as a “mechanical royalty” in exchange for the writer granting a license to the label to sell recordings of the composition.

The typical approach under net profit split recording agreements to the controlled composition clause is that the artist waives mechanical royalty payments with an acknowledgment that mechanicals are a part of the artist’s share of the net profits. This becomes problematic for the artist/writer because publishers often rely on mechanicals as a guaranteed revenue stream. Without a mechanical royalty stream, the writer/artist is less marketable to publishers. It is often favorable to the artist to establish a separate, recoupable mechanical royalty stream to address this problem.

Definitions of “costs” and “advances”

In net profit split agreements, the difference between “costs” and “advances” can be unclear and confusing. Generally, costs are broadly defined to include all expenses of the label with respect to a project except general overhead. Sometimes, however, labels pass through general overhead expenses to artists on a pro-rata basis.  Costs are recouped “off the top” from the first sale. It’s important to note that the definition of recoupable costs under a net profit agreement can be far broader than a traditional royalty model. As such, the “fairness” of the net profit split can prove somewhat illusory.

In contrast, advances are generally understood to be monies that have been advanced to the artist, which the label recoups solely from the artist’s share of royalties once the label has recouped all costs. It is in the artist’s interest to have as many expenses as possible treated as costs that are shared by artist and label.

Non-Traditional Revenue Streams

The newest model for recording agreements, the so-called 360 deal or all-in deal, can pose problems for artists. It’s no secret in the music industry that it is becoming increasingly difficult for labels to sell sound recordings.  As such, labels may justify commissioning non-traditional revenue streams in their recording agreements, such as touring, publishing and merchandise by citing the generosity of a 50/50 net profit split. Whether or not these emerging deal structures make sense in any particular situation requires a factual analysis.  Depending on the strength of the label, existing fan base of the artist, and other issues, an all-in deal may benefit the artist. Nevertheless, there are many situations in which the all-in deal primarily benefits the label.

Conclusion

As the mainstream music industry struggles to find a new paradigm in the digital age, the indie business is quickly evolving – often to the artist’s advantage.  In the coming months, I will provide more in-depth analysis regarding the points mentioned above and others in future blogs. Please keep in mind, however, that any agreement transferring or licensing copyrights in sound recordings should be in writing, prepared by an attorney with music industry experience, reviewed by competent counsel, and signed by all parties. While I very much appreciate the spirit and intentions with which net profit deals are generally approached, it is crucial to carefully consider and review (and execute a writing with respect to) the material terms of these contracts.

Loren Weisman is an accomplished music producer and drummer based in Seattle, Washington. Having worked on over three hundred albums, Loren has also worked on numerous television, film, video game and radio productions, from New York to Los Angeles, Boston to Seattle. Loren is the founder of Brain Grenade Entertainment LLC , and the author of the Freedom Solutions Recording Plan. Loren has also written The Artist's Guide to Success in the Music Business, a book to help independent musicians achieve self sufficient and sustainable success coming in early 2010.

 

You need to professionally present yourself, your music and your career.  Your recording, promotion, marketing as all your soliciting materials and legal materials need to be done the right way. A strong professional package and promotional presence goes a very long way while a fake or weak presence will hurt you more than you know. Too many bands out there are trying to paint a picture they can't live up to and it is hurting much more than helping them.

Everyone wants to look a little more pro and a little more together than they actually are. Presentation is key, but the problem lies in the fake presentations that just don’t balance out. While you are trying to look a little sharper, stronger and better, you are actually doing exactly the opposite.

Think about what impresses you and why. Then think about what is considered strong in the industry. Think about what is impressive on a more professional and business level. Lean towards a mix of something in the middle. There are artists out there that brag about the cars, the jewelry, the money and the fame before they make it. They have major labels or investors that are giving them all the materials they are bragging about.

Now, when you talk about your “ride” being the best but you are sporting a broken down Toyota, this sends a negative message. The other artist you are emulating has the label or investors behind him to basically live up to the hype. You, on the other hand, are failing miserably.

It’s the same when a majorly invested artist brags about their sales and profits. There is a marketing campaign behind some of these artists that in turn will make these sales actually meet the hype. Now, for most people, when they talk about all the sales and are barely scraping by, it does not look strong.

You want to stand out, you want to appear professional, while at the same time showing your own personality to an industry that is full of copycats and liars. Yes, there are molds and templates, parts of which can be beneficial, but do you really want to be just another copycat?

For example …In the “do you really want to be that guy or that girl?” category..

Do you really want to take the promo shots of you on the phone?

Come on! How many poser looking people take shots of themselves on the phone looking like they are doing business while trying to pull off a “cool” pose at the same time? I don’t care if you are an artist, a manager, a label rep or anyone else, taking a picture of yourself on the phone is overused, overdone and only makes you look like a poser.

You really want to do that?

Instead….

What about shots of you on a typewriter, with a bullhorn, giving off the town crier vibe or something a little more original that might give off that cool business sense you are trying for, but adding a touch of something different.

Do you really want to be that asshole with the excessive bling?

The jewelry shots: because that is so original. It is so overdone. At one point, it was impressive, but now it's gone completely over the top.

You really want to do that?

Instead..

Go minimal, try something else clothing or accessory wise. Try something that will make your picture look like yours and not the carbon copy of a hundred thousands of others.

Do you really want to be the guys surrounded by the girls…like EVERYONE DOES?

What about all the scantily clad women around the artist? Because again, no one has ever seen thousands of these pictures.

You really want to do that?

Instead..

Come on, have your picture, image or ideas stick out from the bland and repetitive. Maybe go opposite and have a bunch of old men around you. I know, a little weird, but still, a touch different. 

Do you really want to be the band or artist to brag, put down and over talk?

Think of all the overly hyped intros of songs and all the shit talking in the blogs, on the websites and on the networking sites. So very unoriginal and so very annoying.

I am the best!

No one can touch me

We don’t sound like anyone.

All the girls want to be with me, all the guys want to be me.

 

You really want to do that?

Instead..

How about coming across confident and assertive without being arrogant.  That would be a serious breath of fresh air. Show and showcase your ability through the ability and not through trash talking, overhyping or, worst of all, putting other people down.

Do you really want to be the liar with the fake music business?

There are way too many people out there making one of the biggest mistakes you can make: claiming to run a label, a management group or be an agency when they actually aren’t.

People out there calling themselves CEO’s that are not even incorporated are trying to look all cool and hip, but to the industry, they look like morons. People implying that they have these intense and immense organizations that are looking to sign artists or have contacts to all the major labels put up a grat deal of red flags to the industry professionals. While a couple girls and a few fans might think it is cool. You are actually hurting yourself and your chances.

First off, the upper level industry may shy away from you thinking that you are either a real organization that will only make it harder to work with you and add additional middle men and additional trouble. Or they may take a quick look and realize that you are not a real company at all, losing you their respect.

Finding out whether or not a company is real is very simple.  All you have to do is go to the attorney general's website for that state or run a national search with the name of the company. As soon as it does not come up, you immediately have started up in fifth gear with the bad impression.

You really want to do that?

Instead..

Tell the truth or start an LLC, a small company or a sole proprietorship. Make it legal. Make your words match the facts and help make you look like a true pro, regardless of where you are.

 

Conclusion

 

It's funny how sometimes what we think is making us look really good or really professional is actually doing the exact opposite. What is lame to you when you are making fun of someone for doing any of the above is probably just as lame if you look in the mirror and realize you are doing the same lame thing yourself.

 

Take the steps to stand out as professionally as you can, as creatively as you can and as originally as you can. Use the ideas that work, but add your personal touch to them. In an industry where it has all been done and seen before, the more you can alter, adapt and add to anything and make it a bit different than others, you will display the truest level of professionalism and show how you are more than many by your actions and your truths instead of your lies and your fake presence.

 

© 2009 Loren Weisman

www.braingrenademusic.com

 

Watch out for Loren Weisman’s book “The Artist's Guide to Success in the Music Business” coming soon.

 

 

Martin Atkins has a 30 year career in the music business that includes touring with the bands Public Image Limited, Killing Joke, Ministry, Nine Inch Nails and Pigface, owning an independent record label celebrating its 20th anniversary with over 350 releases, and is an instructor at Columbia College Chicago teaching The Business of Touring, Applied Marketing, and Indie Label Management. He is also the author of the book Tour:Smart and a founder of Revolution Number Three - a school where students learn IN the business, not ABOUT the business.

It turns out that Nike is right.  You can JUST DO IT.  If, when faced with a less-than-ideal situation, you find yourself immediately getting defensive or rolodex-ing the million reasons (and people) who are responsible for your lack of action, movement forward, success, or blowjob - then STOP.  Stop everything. 

 

If you’re on this path the next thing that is going to happen is that I am going to start telling you motivating stories of triumphs without budgets, greatness without cash, groovyness in the face of everything.  You’ll start retreating and reinforcing your position that all you need is a manager, an agent, a producer, and several budgets (because now you have the hang of Microsoft Excel and can make a silly wish list pie in the sky budget why not make a few more!)  We’ll go back and forth.  Me, trying to convince you that the solution to everything lies within you, and you blaming everyone but yourself.

 

Well...., I'm not doing that any more.  No, I'm not giving up on you but I’ve come to realize that my time is better spent helping the few that get it (or at least a bit of it) rather than smashing myself in the face with a recently stolen parking meter. 

 

The glorious part of that is the amazing flower that blossoms and brightens the half dug up, oil slicked concrete pock marked car park (not the orchid that blooms in the temperature controlled hydroponic environment).  The other way of saying that (literally in a less flowery style) is:  triumph in the face of adversity!  Sounds like something you'd print on a coffee mug and recite over the cappuccino machine on a bright sunny morning, doesn’t it?  Like, “Triumph in the face of adversity - who wants the last blueberry bagel?" 

 

Actually, it’s a phrase that’s going to be much more useful in the very pits of a lonely, stark, harsh reality-check bio-hazard hot tub, bubbling with despair, defeat, and hopeless sadness.  Any fuckhead can survive an on-stage “catastrophe” of a broken string and waffle into the bar afterwards and recap in horrifying microscope detail: "...And that’s how I managed to clip on the strap right before the middle G on Dave’s bass solo!” 

 

No one really tells the story of, “....and that’s how I avoided killing myself in the middle of a really bad period of my life.”  It’s easier to share the epic tale of “How I Survived a Broken Guitar String” than it is talk about the “deep stuff.”  That is, I suppose, a weird part of all this too.  Music is a very powerful force in each of us.   People commit themselves to sounds, bands, and entire movements.  Sometimes (more often than we might think) the people making that music are awash in a sea of emotions and problems of their own unknowingly helping others whilst sometimes not emerging from the tunnel themselves. 

 

We are equipped with instructions, advice, and guidance that is at best flawed, but more often non-existent, misguided, deliberately obtuse or cloudy.  It sometimes feels like giving a soldier about to land in Afghanistan instructions for Pac-Man or a DVD episode of Dr. Phil to play to the enemy.  Maybe it’s like giving a shuttle pilot the ignition key, the location of the GO! button and nothing else......a fucking blender comes with more meaningful instructions than the desire to create a career in music or art.

 

So, yes, clearly, I “get-it.”  I’ve lived it.  I’m still living it.  I'm fond of saying, “it’s not rocket science” and much of it isn't.  It is a lot lot lot of hard hard work that you can do - easy peasy.  Then, of course there’s the other stuff.

 

The good news is that if you start doing the hundreds of easy tasks ahead of you, you might grab the tenacity, ingenuity, sense of humor, and resilience you are going to need for so many of the other not-as-easy things.  The bad news is...   Actually, there isn't any bad news right now - unless you want to make some up for yourself.

 

Coming to these conclusions on my own in the last few weeks has really helped me.  I met some amazing folks at Unconvention in Manchester a few weeks ago.  I’m still doing consulting, but I’ve put together a few other packages to make myself accessible to those of you who are ready to work.  Contact me if you want more info on that.

 

And for those of you who need a little bit more structure, maybe revolution number three is the place for you.  It’s a school that I’m starting. 

 

And, lastly, a new Pigface album just dropped.  Along with it comes some CD release parties, gallery shows, and all kinds of wonderful-ness. 

 

So, not the usual “ten ways to play drums faster!’ tips this week, more of an introspective, philosophical thing – but that’s the way it goes…….

 

See you on the road.

 

Upcoming dates:

 

Saturday, June 27 - Chicago IL

Time TBD Martin Atkins DJ set / Pigface CD Relase Party at Vampire Night at Lucky Number Grill 1931 N. Milwaukee Ave. Chicago, IL 60647

FREE ADMISSION if dressed like a vampire or $5 at the door.  more info: http://www.myspace.com/vampirenightchicago

 

Friday, July 10th - Baltimore, MD.
The Metro Gallery, Baltimore.  Martin Atkins Gallery showcase.  Showcase/sale of his artwork.  1700 N. Charles St.; Baltimore, MD 21201 sarah@themetrogallery.net
8pm to 11pm, Doors open at 7pm.  Free wine from 7pm to 8pm.

Saturday, July 11th - Baltimore, MD.
Orpheus, Baltimore.  Pigface CD Release Party.  Martin DJ Set from 11pm to 12am.  More details to come.  1003 E. Pratt St.; Baltimore, MD 21202.

 

Peers, Friends & Fans

It’s one of the most memorable scenes from “This Is Spinal Tap” and marvelously summed up the prima donna cock-rock superstar.  Tap’s guitar player, Nigel Tuffnell, draws his managers attention to the buffet plate back stage, complaining about the size of the bread, and that he can’t make a sandwich with tiny bread – “It’s a disaster!” he squeals like a 5-year-old.

Rightly or wrongly, the mythos exists that being in a “successful” band means being waited on hand and foot, being lord over all you survey (labels, partners, peers and fans) and that hissy-fits and difficult behavior can be excused because you’re an “artist” – some would even say that being difficult is a pre-requisite of being a true artist.
 
The truth is that working in music is essential working with people.  Despite the appearance that a musician has single-handedly conquered his particular domain, there is a subtle and intricate network, usually numbering into the hundreds of people, who’ve all played their part in propping up this particular house of cards.  

If you operate under the assumption that success in this industry can be achieved by you alone, you’ll probably last as long as one of Spinal Tap’s drummers.

And this applies to music businesses, too.  Working as a label or promoter is such intensive work that it can be far too easy to become absorbed with your work, never looking up or taking time to see if there’re other businesses or individuals involved in similar or possibly complimentary activities.

With that in mind, I think we can divide the types of people that really matter into 3 groups.

Peers:  

These include artists, songwriters and other music businesses.  The myth exists most strongly here – other businesses are the “competition”. (for the sake of this piece I’ll call all artists & music enterprises “businesses”).  They might steal your ideas.

In today’s music business, I think we need to blow this thought out of the water.  Ideas are so numerous people are giving them away.  Whatever the idea, it’s the execution, not the idea , that matters most.

Not only that but interaction with other businesses is begun in the spirit of co-operation with the goal of mutual benefit or the achievement of common goals.  

Of course you need to work with people you trust, with companies who share your outlook and ethos – but pulling down your shutters to the outside world because the chance exists that things may not turn out well is a sure path to failure.

Get out to networking events or start your own.  Anything that gets your peers into a room together, talking to as many people as possible is of benefit.  That was a main motivating factor behind UnConvention Belfast (and, I believe, Un-Convention in general) as well as the now-monthly Northern Ireland Music Industry Meetups in Belfast that followed on from UnConvention.

It’s not a question of competition or stealing ideas.  It’s simply a question of optimism (think of what we could achieve together!) versus pessimism (they’ll abuse my trust and betray me somehow).  Where do you stand?

Friends:  

These include bloggers, interviewers or radio – anyone who, for whatever reason, is interested in your music and is taking the time to talk to you about it.

Research the company behind the interview, find out who listens or comments on the content but above all else be enthusiastic.

I’ve heard so many stories from people in radio where the rock ‘n’roll ethos is so prevalent (among established and emerging acts alike) that the band or songwriter treats the interviewer with indifference, or worse, with “don’t-you-know-who-I-am?”-style contempt.  

The truth is, no matter how successful you are, every person you interact with as a business has the potential to change the game for you and your endeavors.  The problem is that there’s no way to tell who that’ll be – by acting like a Rockstar you’re basically destroying any chance that one of these people will help you in the future.

Fans:  

I’ve talked quite a bit about how to treat your fans, but the basic tenet to understand is that they have as much control over your success as any writer from Pitchfork or WOXY.

The amount of times I’ve seen bands treat their audiences with contempt is beyond count and, although disasters like Wavve’s recent meltdown in front of an audience of potential fans at Primavera are rare, there’re plenty of other missed opportunities.

Most bands will say “thanks for listening” after a show, but are they really thankful?  If they are, how are they showing it?  How about writing an email the day AFTER the show to thank attendees, including a demo of the new track you just wrote?  Or making sure fans leave with some music as a tangible “thank you”?

The goal in all of this is that the next time you’re working on a new business idea / have a tour to promote / playing a show in someone’s town, you’ve earned the loyalty of people you interacted with the last time you were there.
 
Do you think you’ll have that loyalty if you run step-by-step through the Rockstar playbook?   

I’d say if you toss aside the Rockstar shit, if you act with genuine enthusiasm, humility and with a sincere recognition that it’s a privilege to work in music, you’re much more likely to have that loyalty.

 

John Doe is the founder of the seminal Los Angeles punk group X, a solo artist and actor. John answers questions from our community members in the WWJDD? blog. Photo by Autumn de Wilde.

A Question from Donna in Princeton, NJ

Hi John, 

I love your blog. I'm a writer and this morning I was thinking about how I strive to reach this ideal with my words...this fantasy vision inside my head...I'm wondering if that's what you have inside your head when you write a song and which of your songs come closest to that vision? I'm also wondering, what do musicians talk about when they get together? Different venues? Life on the road? Management? I've found that writers talk more about business than art, but maybe that is different with the people you know? 

Thanks for your time, 

Donna

WWJDD?

Hey Donna,
  To answer "what do musicians talk about" totally depends on what genre yr referring to.  From my experience it usually revolves around other tours, preposterous situations, war stories, diva demands, amazing venues, bragging about how many states-countries-gigs completed in the shortest number of days, etc. Only musicians who know each other well will ask advice on business matters but that does happen. There also is a fair amount of exchange regarding other bands, records or performances so that people are informed or turned on to something worthwhile; new or old.  Then I suppose there are others who just talk about drugs, food & sexual conquests or how much they spent on "bling".
  I've found that attempting to realize a "vision" is usually disappointing.  I tend to begin w/ a moment or thought & let it become what it's going to become as it takes shape & hopefully is complete. Here it's best to know when something is "done" & when it needs more attention to be the best song it can.  I'll take a certain piece of writing & elaborate on that or some music that has stayed w/ me for a while & complete that. That's specific to writing a song or piece of music.  Then there is a whole other layer of creative process that happens during recording. This involves the beauty or trials of working w/ other players, singers, engineers, producers & finally mixing; etc.  This is where the "vision" thing can get particularly contentious.  It seems more rewarding to allow room for the unexpected to make the piece better than what you might've envisioned.  Expectations are most often impossible to realize.
  I hope this helps.
and as always, thanks for writing,
yrs, JD

If you have questions for John Doe about music, the music business or life feel free to email them to wwjdd@knowthemusicbiz.com.

For more information on John Doe check out theejohndoe.com or YepRoc.com .

 

 

 

Garry Velletri is Senior Vice President of Bug Music. He has been with Bug since 1985 and is based in New York.

Music Publishing Terminology

The ownership and management of exploited music copyrights by licensing and registering certain rights and the collection of the resulting royalties and fees including mechanical royalties, performance royalties and synch fees.

Huh?

The world of music publishing is littered with obscure, misleading, and archaic terms; some of which have more than one meaning depending on the context. No wonder it all sounds confusing if not downright intimidating. Understanding the meaning of these terms and phrases will provide a useful base for understanding music publishing in general.

Copyright

Is it copyright or “copywrite”? Yes you wrote a song; but a copyright is never, ever referred to as a copywrite. There are two general rights covered in a music copyright: the authorship of a song and the ownership of a song. According to Copyright Law, you are the natural owner of every song you write until you assign the ownership to someone else. Every song is made up of two equal parts; not the lyrics and the melody but the writer share and the publisher share.

The writer share is semi-sacred. It represents the authorship of the song. While a copyright can change hands many times; the writer share remains the property of the author.

The other fifty percent, the publisher share, is the equitable share. It is what you can sell or buy. In this context it is known as the “copyright”. When a publisher acquires a copyright, it is acquiring the publisher share.

Control

The Publisher controls the writers share. The publisher licenses mechanical , print and synch rights on behalf of itself and the writer. These royalties and fees are collected by the publisher (the owner of the copyright) for both the publisher share and the writer share. It is the publisher’s responsibility to pay the writer. Performance royalties are the only royalty type where the writer can collect his writer royalties directly from the performing rights organization. Control means the publisher has the right to negotiate and execute all licenses.

Royalties

Ongoing earnings of licensed songs from each sale or broadcast.

Exploitation

In music publishing, exploitation is a good term. You want your songs to be exploited. Landing a song in a film or television show is an exploitation; somebody recording your song is an exploitation; releasing a record is an exploitation. When one of those songs from your record becomes part of a greatest hits package down the line - that's an exploitation. An exploited song that is licensed and registered opens revenue streams.

Royalties don’t just magically show up in your mailbox; It is the result of the publisher executing licenses and filing the proper registrations.

Registration

You or your music publisher registers your songs with a performing rights organization (ASCAP, BMI or SESAC) to get the song details in their database so the correct percentages of performance royalties can be attributed and paid to the correct party.

Your music publisher registers your songs with a ‘local’ publisher in a foreign territory so they can, in turn, register the songs with their local mechanical and performing rights societies (society being a fancy term for foreign mechanical and performing rights organizations) so the correct percentages of foreign mechanical royalties and the publishers side of performance royalties are attributed and paid to the correct party.

Licensing

The music publisher doesn’t sell songs to another artist to record or to be used on a TV show or film- they license it. There are four primary rights to license:

Mechanical rights — Back in the early twentieth century, there were two methods of distributing music: sheet music and player piano rolls. To differentiate between the two, early copyright law defined the royalties generated by the sale of these player-piano rolls a “mechanical” royalty for which you needed a mechanical license; after all, piano rolls were a mechanical contraption. The definition of Mechanicals through time went on to include Edison rolls, 78 rpm vinyl records,45 rpm records, 33 1/3 rpm long play records, cassettes, 8track tapes, cds and now digital downloads. It’s like calling your iPod a Victrola but the term stuck. A good way to think of it is mechanical royalties are for the sale of music.

Performing rights — Think broadcast. There are three performing rights organizations in the United States: BMI, ASCAP and SESAC. They are not music publishers or administrators. These “PRO”s have blanket licenses with radio stations, television stations, clubs, restaurants, stores, digital streaming services like Napster and so on. You should belong to one if you have any exploited songs. For the price of these blanket licenses (which vary depending on the size of the broadcaster) the broadcaster can play all the BMI, ASCAP or SESAC songs ‘til their heart’s content for a measured period of time. These ‘plays’ are tracked and the pool of blanket license money is divvied up proportionate to the number of plays and the value of plays. In other words, for example, a play on a major radio station is worth more than a play on a college radio station. Another example: a featured play on a television program is worth more than a background play on the same program. Performance royalties are generated from the broadcast of music.

Synch rights — short for synchronization this is the licensed right for a film or other audiovisual medium to use your song, to synchronize your music to recorded visuals, in an audio-visual product. It can be a commercial, a videogame, a film, a TV show or a website. A synch license usually produces a negotiated fee for certain rights depending on the usage. Yes, we are talking about rights within rights. For example, say it’s your lucky day and Mitsubishi wants to use your song in their new car commercial. With your approval your music publisher negotiates a synch fee with the music supervisor for the Mitsubishi spot which will allow them to use your song for, say, one year for national television plays for one flat fee. If they still want to use it after the one year or if they want to run it internationally or stream it on their website or put it on a promotional DVD for give-away, all of these uses are rights within the basic right and should most likely carry additional fees. (Since the Mitsubishi spot is broadcast it also produces a performance royalty)

Print rights — Sheet music, song folios: it’s pretty self-explanatory — but be careful-the term ‘publish’ has a few different meanings depending on how it’s used. Once a song is released or exploited in some way it is considered ‘published.' Once a song is filed with the Library of Congress for copyright it is considered published, it does not necessarily mean the song‘s notation and lyrics are published in print form. However, if the song’s written notation and lyrics are published in print or digital form for purchase, it will earn print royalties from the print license your publisher negotiated.

Functions of a Music Publisher

So now that you are armed with a basic understanding of these terms, you will see that a Music Publisher performs the following:

Administration

Secures copyrights, controls copyrights, executes a variety of licenses, causes songs to be registered with a variety of organizations and societies world-wide, collects royalties, disburses royalties, and more.

Creative Services

The Creative exploitation of copyrights or causing songs to be exploited by pitching songs to other artists and securing placements in Film, TV and commercials; networking and promoting its writers (further explanation invites a whole blog topic in itself)

Publishers are often able to provide critical funding in the form of advances against your future royalties and by covering the costs of recording demos of your songs.

Loren Weisman is an accomplished music producer and drummer based in Seattle, Washington. Having worked on over three hundred albums, Loren has also worked on numerous television, film, video game and radio productions, from New York to Los Angeles, Boston to Seattle. Loren is the founder of Brain Grenade Entertainment LLC , and the author of the Freedom Solutions Recording Plan. Loren has also written The Artist's Guide to Success in the Music Business, a book to help independent musicians achieve self sufficient and sustainable success coming in early 2010.

 

Seriously. It's time for some artists to get a clue about social networking sites, specifically MySpace and play counts, page views and friends. It has gone from ridiculous to completely freaking insane.

For those of you who might not be aware, there are a number of artists out there that actually spend money on “marketing firms,” as they have been calling themselves, to get more Myspace hits, friends and plays. This is foolish. This does nothing positive for these artists' careers. 

In fact, it hurts them. Now while a few people might think they look cool because they have hundreds of thousands of friends, the industry as a whole is recognizing it for what it is: an artist who is wasting time trying to present a false fan base and a presence that truly does not exist.

Yes, at one time lots of hits, friends and play counts on MySpace had a small level of significance. These factors stood as something that people paid attention to some four or more years back when MySpace was new and these “add or play bots” did not exist. As MySpace was in the forefront and more artists were joining, there was a large and wide differentiation of who was being looked at and who was not.

These were contributing factors to some artists even receiving deals, but only contributing factors. NO ONE--repeating here--NO ONE has gotten a record deal or contract based solely on the amount of friends and plays they have on MySpace. Yes, the stories are out there, but at most it was only one small factor that added to a number of other factors and justifications that got the artist a deal.

Getting a deal just based on Myspace stats sounds much cooler though, doesn’t it?  Just not true though. Think about it: who with the money, the means, the understanding of the industry and the resources would sign an artist off of just those facts alone? NO ONE.

You want friends? Plays? Hits? Then earn them. Personally add a few people a day to your Myspace, Facebook, Bebo, etc.  Add a message and market yourself by reaching out to people and groups on these sites. Take the right and professional path to truly get people to hear you.

Sometimes, and those times are few and far between, these bots and programs can cause a few real people to find out about you and create new honest friends and download sales.  Most of the time, however, it is not like that. Instead of real fans, bots and programs play your songs, ping your site and push to spam up your friend count. Some of these spam additions are people that will just approve and never even check you out. That makes it a worthless contact and nothing that is helping you at all.

Now, let's really do the math.

Yesterday, I was on a Myspace site of a really shady artist I came across and had never heard of before.  I found this artist while searching a genre and a few keywords. This artist had 765,781 page views, even though the pages was very weak and the music weaker. Yet every song had over 100,000 plays. RED FLAG ONE! All the songs had over one hundred thousand plays? So over one hundred thousand people decided to listen to every single song on their page?

BULLSHIT.

Let's add to the equation that they have almost six thousand friends. But if every person checking out this artist also listened to every single song and added the artist as a friend, wouldn't the artist have a lot more friends? For the 765,781 visits that of course must have been from all different people, only on person, that’s right, Houston, one person in every 127 decided to add this artist as a friend?

Umm, uhh, let's see here...and NO.

And then it gets even worse!  The industry is completely aware of these bots and programs to add friends. The people you want to listen to you often do not have that much time. So, when they immediately see the traits of someone faking popularity, instead of impressing, you are immediately discrediting yourself. Think about this when writing your press kits as well. Do not highlight friend counts, page visits or song plays. Highlight the things that matter, like show attendance and  sales. Highlight your logo, your professionalism, your music and how you are ready to go to the next level based on your efforts and achievements, not your contrived appearance.

Also… Stop using quotes from Facebook, MySpace and other online sites where any one can review. It may good a good review but at the same time, you could have written it.

It takes more time to professionally and honestly achieve your goals.  It is more challenging, but it is worth it to appear strong and solid in front of your fans and industry professionals alike.  You will shine brighter than most others.

Conclusion

Spend the cash on advertising on MySpace or Facebook. Spend the money with the pay-per-click advertisements or the small localized marketing ads. They are worlds more effective. Keep track of your actual sales instead of hits in order to show potential labels, managers, and talent buyers your viability and profitability.

Take the steps to appear as professional as possible to leave a lasting impression on those you are really trying to impact. It will help you move forward productively and effectively, while also bringing you more exposure, creating a better buzz and, hopefully, deriving profit.

You are an intelligent person.  Act like it. Spend your money on things that will actually help your career and not things that give the appearance that your career is more than it really is. 

 

© 2009 Loren Weisman

www.braingrenademusic.com

Watch out for Loren Weisman’s book “The Artist's Guide to Success in the Music Business” coming soon.

 

I’m a firm believer that the longer an artist can manage themselves the better off they will be in the long run. I wrote a blog post last year titled “Build It and The Music Biz Will Come ” I encourage artists to read before rushing out to find a music management “team” early in their career. Once an artist has done all the hard work required to build a dedicated fan base they may want to consider hiring management to help grow and manage their business. Below is an overview of some of the traditional management roles in the music business.

 

Manager

 

Traditionally, managers have spent much of their time getting their clients signed to a record label deal then working with their client’s record labels to coordinate publicity, radio promotions and retail marketing budgets and programs. Today, the desirable skills for a manager in the music industry have changed fairly significantly. Managers need to be specialist in direct to fan relationships, social media, online marketing, licensing and sponsorships. They should be generally knowledgeable in ways artists can be successful with and without a record label.

 

Managers should handle all the artist’s personnel issues with the band and crew members and work with the rest of their management team including the attorney, booking agent, business manager and tour manager as needed.

Managers are typically paid 15% to 20% of the artist’s gross earnings. That means they get paid their percentage on all the artist’s earnings including, royalties, publishing, touring, merchandise, or sponsorships before the artist gets paid. Some managers have multi-year contracts (that can be quite complicated) with the artists they represent and some just work on a handshake.

Attorney

Given the uniqueness and complexities of recording contracts, management agreements, publishing deals, sponsorship or licensing agreements and the various other music business related agreements attorneys can play a critical role in protecting the interests of the artists they represent. The most important thing to look for in an attorney is experience in the music business. Just because someone has a law degree (even from a top school) does not qualify them to adequately represent artists in the music business.

A good attorney with experience in the music business can keep you from making contractual mistakes they have seen that have happen to other artists. Attorneys usually charge by the hour or by retainer (a set monthly fee) and in the music business it’s fairly common for them to charge well established artists a percentage of gross earnings, 5% is typical. 

Business Manager

A business manager is the person or firm that collects monies owned to the artist from royalties, publishing, touring and merchandise sales, pays the bills, band and crew, invests the profits and files the tax returns. They handle the artist’s general accounting related needs, royalty collection & auditing and tour budgeting & reporting. Many good business managers are either CPA’s or employ CPA’s on their staff due to the complexities of the music business accounting and the challenges of dealing with multiple state and international tax jurisdictions that come into play when an artist is on tour. They also handle all financial aspects of the artist’s personal life including insurance, loans, mortgages, investments and estate planning.

 

Business managers typically charge 5% of the artists gross earnings in the music business but some an hourly rate or flat monthly fee. 

 

Booking Agent

Booking Agents play an important role in the success of the artists they represent by planning and booking their tours with promoters and venues. They will make sure you are playing in venues that are known for your genre of music or booked as an opening act for bigger band. Booking agents negotiate the fee structure (guarantee,  % of the door, meals, etc.), determine ticket prices and ticket availability in the market. Thoughtful route planning is critical to the financial success of a tour and a good booking agent should make sure you are not playing in Atlanta one night, Chicago the following night and Jacksonville the next.  Route planning can be a challenge for even a seasoned booking agent due to the large number of competing tours and the limited availability of quality venues in highly desirable markets.

Booking agents typically collect a 50% deposit on the show guarantee from the promoter once the show is booked. They usually charge 10% of the money the band gets paid for the show for their services. For example if the booking agent negotiates a $2000 guarantee for a show, they would collect a $1000 deposit, keep $200 (10% of $2000) then send the band $800. The band or their manager / road manager would collect the balance ($1000 in this example) from the promoter or venue after the show. 

Tour Manager

The Tour Manager handles all the details of life on the road for the artist during a tour. They will arrange transportation, hotels and meals for each stop, make sure the equipment is accounted for and maintained plus manage the crew. The tour manager makes sure the venue has the stage, sound and lighting set up as requested and that the band is paid per the terms arranged with the booking agent. They manage and safeguard the cash collected while on the road. The Tour Manager will work with the tour publicist to make sure the artist shows up on time for scheduled interviews, appearances and promotions in each market. It’s the tour manager who puts out all the inevitable fires that come up at each stop during the tour.

The tour manager is also responsible for maintaining the tour plan and budget set up by the manager, business manager and booking agent. They are typically paid a salary, per diem or a set amount per tour.

John Doe is the founder of the seminal Los Angeles punk group X, a solo artist and actor. John answers questions from our community members in the WWJDD? blog. Photo by Autumn de Wilde. Click here to check out John Doe's new release with The Sadies, Country Club.

A Question from Michael in Brooklyn:

Mr. Doe,

I stopped in to ask a familiar question. I was in a contract agreement with a manager and he said he didn’t want to be my manager because we had an argument over him canceling a show because he didn’t trust the producer’s ear (mixing). The manager didn’t come to the studio for a month and didn’t hear the music we recorded. See the manager did hear the music before he cancelled the show. But now he’s not my manager and all the music I recorded is on his computer.  The producer made the majority of the beats, does he only get the producers fee of 2%? He didn’t write but one verse on one song. Does he get publishing or writer’s rights besides that one song?

Peace,

Michael

What Would John Doe Do?

Hey Michael,

Give all the songs new titles & re-record them w/ someone that you trust (maybe leave out the one w/ the verse written by the "producer").  Never sign manager agreements before you actually have something to manage.  Those "managers" are just trying to take advantage of you & yr art.  In this ridiculously litigious society people need to keep their music on their own hard drives, a very sad but true situation.
onwards & upwards
 thanks for writing,
Jd  

If you have questions for John Doe about music, the music business or life feel free to email them to wwjdd@knowthemusicbiz.com.

For more information on John Doe check out theejohndoe.com or YepRoc.com .

 

Kevin Cole is the Senior Director of Programming at KEXP 90.3 FM in Seattle, and KEXP.ORG worldwide.  He is also the host of “The Afternoon Show” on KEXP, and the host for “Wake Up” on Radio New York, 91.5 FM in New York.  Kevin's musical experience extends back to being the in-house DJ at Minneapolis's legendary First Avenue/7th Street Entry nightclub, working as the Music Director at one of the nation's first commercial alternative stations (KJ104), launching Revolution Radio (Rev 105), and serving as the Senior Music Editor at Amazon.com.

 

KEXP is an unusual radio station.  Our DJs have the freedom to play anything they want along with the privilege and responsibility to curate their own shows.  While we have a rotation for our variety freeform mix, our DJs aren’t forced to play anything they don’t want from rotation.  

 

KEXP is also rare in that we'll play demos and unsigned bands.  Vampire Weekend gave our morning show DJ John Richards a burned CDR demo of their songs.  We liked it so much, we added it into rotation, and it became our number one record.  Before we knew it, Vampire Weekend were getting signed to a major label, landing the cover of Spin Magazine, and playing Saturday Night Live.

 

About 75% of KEXP’s programming is freeform/variety shows.  The other 25% genre specific specialty shows—14 of them, covering modern global, roots, reggae, electronic, hard-core country twang, hip-hop, jazz, punk rock, avant garde noise — pretty much everything but classical/opera.

KEXP has over 40 DJs, a blog editor, blog writers and contributors, as well as volunteers and staff, from the person at the front door to our underwriters, admin folks, and bean counters, all dedicated to finding and sharing music they love, not to mention a community of thousands of listeners, bound by their enthusiasm for music, who play a role in getting music played on the air as well. Finding and sharing great music is our daily quest.  KEXP’s mission is to enrich the lives of our listeners by championing music and discovery.  I believe, that if your music is great, we’ll find it, and it’ll get played. Help us find it!

 

The Basics: get us your music!

 

There are lots of ways to get your music out there.  I’d recommend using them all. You never know how someone is going to connect with your music!

 

CDs: At present, we still prefer CDs.  Send with full artwork, if you have it. Include a  "one sheet" designed to outline what you're sending and why it should be listened to.  That’s a one sheet, not a two or three sheet!  Avoid cramming it with too much info, but include the following essential information:

• A list of any songs the FCC wouldn't like, such as those with obscene language.
• Recommended tracks (3-5 of your strongest)
• A description of what your music sounds like, or the genre of music
• Information on when and how the music will be available to consumers.

If you send a CDR, make sure you put your band name/contact info on the CD.  Every couple of months we have to throw out hundreds of unmarked CDs that have long since been separated from their packaging.  Seriously.  I’m very happy Vampire Weekend put their name on their CDR.

 

MP3s: e-mail MP3s or links to your MP3s, with the basic “one sheet” information. I listen to lots of MP3s as a quick, effective way to review music.  One thing to consider, though, is that most MP3s tend to be smaller files with inferior sound quality, and you want your music to sound as good as possible, right?

 

Post your music on your website, blogs, and social networking sites (MySpace, facebook, etc.).  Also, get your music to key blogs.  In fact, get it to anyone you think would like it.  We started playing what became our biggest album of 2004, the Arcade Fire’s “Funeral,” after listeners started requesting it and e-mailed us songs before we even got promotional copies from the band! I tend to play a couple of songs on my show each day from MP3s I downloaded the night before in a music safari.

 

Things Not To Send: 

Don’t bother sending promotional knickknacks or other items intended to get attention.  If your band name is The Hot Dogs, don’t send a promotional package with a hot dog in it.  This actually happened to John.  He was on vacation.  The smell sure got his attention when he got back.  A yo-yo won’t make your music sound any better.  Trust me.  Save your money and invest in your music.

 

Who To Send Your Music To:

 

• Get copies to our music director, Don Yates. Don listens to music all day for KEXP airplay consideration.  Not only does Don have one of the best jobs in the world — he also has some of the best ears as well.  The CDs Don can’t get to he distributes to a staff of volunteers for review.

 

• Get copies to our key weekday variety mix DJs (or all our DJs if possible): John Richards, Cheryl Waters, and yours truly (Kevin Cole).

 

• Get copies to our specialty show hosts that make sense for the type of music you’re creating.  We have 14 different specialty shows featuring almost every  type of independent music from jug bands to punk rock created by jugheads.  Check out the program guide here. 

 

Send music to Jim Beckman, who edits the KEXP blog and helps coordinate the content for our podcasts (jim@kexp.org).

 

What Next?:

 

Once you’ve sent in your music, following up is a good thing.  And, patience is a virtue, for all concerned.

 

Follow Up:

Most music directors have call hours a couple of hours each week devoted to stepping away from listening to music and actually talking to people. Feel free to call Don during his call times, Wednesdays from 10am-Noon, though it's easier to just email: don@kexp.org. Follow up via e-mail as well, and don’t take it personally if you don’t get a response.  I currently get several hundred e-mails a day.  I look at them all, but can’t respond to all of them.

 

Patience: 

Kurt Cobain once brought a demo of his band Nirvana down to the station — He dropped it off to the late night DJ and called a couple hours later wondering why he hadn’t heard it yet.  So, even Kurt had to wait and give the DJ time to check out the CD.  A couple of weeks is usually a good time frame.

 

In Closing:

The basic formula for getting airplay starts with creating great music—after that it’s getting someone at the station to hear it and champion it.  And that can happen in many different ways, from formally submitting music via our Music Director, to getting CDS to all the right DJs, posting your music online, working with promotion companies, and having listeners e-mail in MP3s.  Every avenue you take increases the chance of getting airplay.  Be persistent, have patience, stay positive, trust it’s going to happen, and keep making great music!!!

 

For more information about getting airplay, check out a piece on our site John wrote that includes some useful information on promotional companies.