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 Bev

Hi John,

I just arranged a song which I thought was a pretty good cover of a popular song.  When I applied for a mechanical license, the publisher said it was a derivative.  I've had several people, including a musicologist, listen to the song, they all felt it was a cover.  My cover is similar to the Billie Jean cover done by Chris Cornell--no lyric changes, just slower tempo.  I'd like to know if Chris received a mechanical license  or was his version also treated as a derivative.

Thanks,

Bev

What Would John Doe Do?

Hey Bev,
   This is a tough one to figure out. It's similar to guessing whether or not I might like the arrangement that you've done, OR even like the song.  Chris Cornell is still really handsome but Billie Jean is sort of predictable & not the greatest song. At the same time, MJ did have a GREAT arrangement; wonder if that arranger got a writer's credit & share?  I've never proclaimed that I was a publishing maven, simply someone who knows the basics & has been to a few county fairs.
  If yr publisher & several others have deemed this a cover, it probably is, sorry. And to be honest I don't know where that dividing line is.  I would say that arranging a song while it's first being recorded is the easiest way to get a writing credit. Or to arrange a song that is public domain, that's a given.
   This is a similar situation as a drummer who creates a great part to a song & then wants credit for writing.  That is entirely up to the songwriter or courts.  I have heard that just recently musicians have been given been given writers' shares for a "musical hook" that didn't involve the chord changes or lyrics. That's an entirely different subject and seems very subjective.
hope this helps and as always, thanks for writing.
good luck, 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 .

 

 

Nick Fitzsimons founded Penny Distribution in 2007 and launched sister company Penny Black in 2010. Originally a physical and digital distributor, Penny Distribution and marketing services for its artists and labels.  Penny Black is a boutique music licensing and consultancy service representing independent Irish & UK labels catalogue to the media industries for sync and brand partnerships.  Nick also helped organize UnConvention Belfast and the NI Music Industry Meetup series, as well as the informal Open Music Media Belfast meetups

 

It’s something that anyone involved in music in 2010 will tell you is big business, and maybe the answer to dwindling (if not non-existent) recorded music sales.

The sync, or “synchronization” of your music with a moving image.

Indeed, the pursuit of that perfect sync (or even an imperfect sync) has been a focus of recording artists for years – closely coinciding in the past decades meteoric slide music sales.

Prior to 2002, it’s safe to say that most label’s sync strategy was “passive” – there’d be little to no active outreach, with content creators such as ad agencies and TV producers instead, upon hearing a record on the radio or through other promotion, would call the label directly and negotiate a deal. 

The tables have well and truly turned.

The sheer amount of pro-active music producers (labels, artists and music clearance houses) now pitching to music supervisors, creative directors at ad agencies and games companies is so huge that it’s having the natural market economy effect when supply greatly  outstrips demand i.e. less and less money is being made available to pay for music licenses. 

Whereas 10 years ago, a Hollywood picture would have about 10% for a music budget, that margin has slimmed to 6%, even as low as 3% in some cases.

That said, independent music has a significant advantages over music from other more “established” artists.  Stressing the “indie advantage” – that you can be more flexible, clear the license more quickly and allow for wider uses of the music – can be an attractive proposition for folks seeking that killer track that connects with their audience.

First things first:  before you can even think of a sync strategy, you need to get your tracks sync-ready.

 

1)     Register your songs with performing rights organization in your country.  Sounds obvious but I’ve heard some horror stories.  Some TV companies actually ask for a detailed songwriter split BEFORE a deal is signed, for no other reason but to make sure there’re no hiccups in clearance later.  Be sure to be explicit about song-writing splits during registration and keep a clear record of all communications.

 

2)     Instrumentals:  When you’re in recording the new release, think seriously about paying up for vocal-less versions of your mixes.  It’s the #1 most asked for variant of any commercial recording and could well be the difference in getting a sync or not.  Getting instrumentals after you’ve finished recording and mastering can be considerably more expensive – it’s worth keeping in mind.

 

3)     Metadata:  Ensure ALL of your digital music files are correctly tagged.  You can use iTunes (“Get Info”) to edit meta-tags, but I find an audio editing software (like Audacity, which is free) is more suitable for editing tags. Including genre, bpm and songwriter information as well as contact information in the file will help people track back to you if they hear something they like.

Once your tracks are as sync-friendly as possible, the next step is to look at where to aim and who to contact:

 

1)     Film:  IMDBPro is a great resource here – most music supervisors will list their previous work and upcoming projects - a great way to start a conversation with them.

2)     Advertising:  Resources like FileFX (in the UK) list many key advertising agencies and their respective key players. The biggest problem can be getting your music to the right person at the right time – there are literally tens of people involved in the creative process of making an ad.  Developing a few relationships, rather than trying to contact everyone who might be involved, is usually a safer bet, but a good place to start might be the company’s Head of TV.

3)     Games:  A more difficult bet for commercial music – many games use a custom composed scores.  Certain game genres do use commercial music, and the major publishers (Sony, EA, Konami, Xbox etc) usually have a music supervisor who you can target.  The key, as always, is being relevant to their current projects.

4)     TV:  IMDB is a great resource here also.  Most TV studios have folks in charge of a series.  As these folks often move from show to show, establishing a good relationship can be advantageous here also.

There are many other routes to market for your music – coupling with a consumer brand or corporate communications being two that spring to mind – that are also worth considering as your sync strategy develops.

When you’re ready to reach out, keep a few things in mind:  as with any communication with folks you’re trying to get interested in your music, remaining personal in your communications, as well as persistent is important. 

 

1)     Be a real person: Rule of thumb – forgo any language in an email that you think sounds “professional”.  That doesn’t mean write emails in LOLspeak, but passion about your music and more importantly, passion about the project you’re hoping to get involved in, will take you much further.  Anyone today can be slick.  Be authentic.

2)     Be relevant:  NEVER pitch a song or album just because it’s something you’re working on at the moment – only pitch music that’s relevant to the individual you’re targeting and they project they’re working on.  The temptation can be to “carpet-bomb” supervisors with your new release – bad idea.  Quality, not quantity, of conversation will take you much further.

3)     Do it together: Consider forming a collective of artists or labels and pooling sync resources.  A wider range of genres will make it easier to match briefs .

 

Jessica Sobhraj is co-founder and Sr. VP of Production for Sir Groovy, an online B2B music search company, which focuses on helping film studios and TV networks expedite the process of finding and purchasing music synch rights. Sobhraj oversees pre-clearance procedures and relations management for new and existing content providers.

There are thousands of synch licensing opportunities created by hundreds of buyers that are seeking independent music in the United States. Yearly, this is a billion dollar market that is rivaled by an additional billion dollars generated by international buyers. So who’s buying? Television and film remain the largest purchasers in the industry, but new niches such as interactive usages are also appearing as new forms of media/content emerge.

Although the number of placements available to independent labels has increased, the budgets have not. However, that isn’t necessarily a bad thing! Stricter budgets translate into a world of potential for independent labels to dominate a niche that once belonged exclusively to major labels. Also, A demand for better quality music and branded artists has created an opportunity for independent labels to capture business from the (cheap) production libraries.

Many labels seek the perfect concoction of strategies to address the question of “How do I get more placements??”. There are a variety of tactics that you as a label owner or licensing representative can employ to capture a chunk of this two billion dollar market. The most common method is to use a third party to seek licenses on your behalf. There are many third party licensing firms, each with its own way of navigating the (sometimes) muddy waters of synch licensing. In order to find the partner that best accommodates your situation, take the time to assess what is crucial to your synch licensing strategy, assess which partner offers the greatest penetration in your target market segment, and which partner offers a suite of services that complement rather than impede your own efforts. Here are a few research tips to guide you during the decision-making process:

-       Call: Try to get a human on the phone. Employees can reveal much more information than automated voice dialogs and email robots. During the contractual process, ask a representative to go over the agreement with you. Should you feel that the terms are not clear, be cautious of signing anything.

-       Protect Your Rights: Ask if the potential partner will re-title your copyrights and retain a portion of your royalties (this is important!!). Some partners will require that you grant them the right to re-register your music with a new title, under their publishing entity in exchange for placement opportunities. In most cases, revenue from royalties amounts to more than the original licensing fee – this is definitely an issue that you will want to address with every potential partner you research.

 

-       The Importance of Brand: If you’re concerned about branding and making sure that your music is in good company, ask for a list of the partner’s top artists. Partner’s with larger names often attract more buyers. Having branded artists also indicates that the partner has generated enough sales, buzz, and happy artists to retain those larger names.

 

-       Prove It: Ask for potential partners for a list of clients and placements from the last 3 months. This will indicate whether or not the partner is selling music in volumes that are meaningful to you! Since numbers (and placement reels) don’t lie, you should be especially suspicious of partners that cannot provide this information.

-       Strategize: Ask potential partners how they plan to get your music to interested buyers and not stuck in a massive dormant catalog. A good rule of thumb is the larger the catalog, the less you'll be heard. Because of this, labels often find that partners with smaller selective catalogs are more appealing than larger production libraries.

-       Where’s The Money?: Ask potential partners how you will be paid, and how often. Will they notify you of each placement and when you can expect to be paid?

-       Personalize Your Experience: If having someone that will update you personally and work with you on a one on one basis is important to you, factor this into your decision process. Larger pre-cleared libraries may not be able to provide such a personalized service because of the sheer volume of licenses they execute. Although they do not generate as many sales as libraries, smaller partners (like song-pluggers) work very closely with labels.

Whether you go with a song-plugger or a library, working with any third party service requires a great deal of trust and understanding between both parties. For example, your partner needs to know that the information you provide is 100% truthful (especially concerning rights clearances) and you need to be able to trust that your partner will not license your music for pennies. Moreover, understand that despite the size of the industry and opportunities available, you may not achieve your desired outcome immediately. Synch licensing can be a tedious, drawn-out process, so work with your partner to craft and re-tool your strategy frequently. Most important of all, be patient and keep the lines of communication open!

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 Scott in Maine

Hi John, First off I'm a huge fan of X, and your solo albums/CD's.
'Forever Hasn't Happened Yet' is a favorite.
Now, I'm a drummer and have only been included in songwriting
percentages on 2 or 3 occasions by generous and realistic, non
egocentric individuals. The rest of the time I'm told to forget it,
you're just the drummer. I feel the drums add a vital and even
essential part to most songs you hear on the radio, and beyond. Why
has the system been set up to not include drum parts ?
Realistically, the drums are almost always 'Written' by the drummer
with his past experiences that led him to a particular session/gig or
whatever. I have been playing most of my life, gigging and recording
for 25+ years. Now, again, I'm in a dilemma. I was verbally told I
would be cut in on publishing/songwriting for a debut CD, then after
recording is over, I'm out. We mutually parted but no mention of
previous verbal agreement. (with two members). They want to pay me a
small fee for the recording, and that's it. Any suggestions?

Sincerely,

Scott 

What Would John Doe Do?

Hey Scott,

Hmmmm . . . this is somewhat of a moral dilemma.
First, I would suggest that you write words, music & melodies; that way you would be assured your writing & publishing percentage. That's sort of the legal bottom line.
Many bands, early on, split writing & publishing money to keep all the band members afloat. When they're more established, the non-writing members forego their cut because the gig money, recording fund, whatever, is paying their bills. IF, you were told your contribution was important enough that you deserved a credit, then they should keep their word & you have every right to speak up & demand your share.
I'm quite certain that, legally, even if an instrument has the "hook" to a song; they are not considered a writer and do not share that credit or publishing. Unless the writer gives them a share. We all play our instruments & develop the song the best we can. That's why people get paid for recording sessions and if they're great players, the pay reflects that ability or creativity. But if there was no structure (melody, words & music) then there would be no song to contribute your part to. For instance, would Greg Leisz be considered a writer for playing his amazing pedal steel parts on kd lang records? There were X songs that I wrote entirely but included Exene as writer because she either edited or inspired the song. On the other hand if it's a "jam" that turns into a song, I would say that everyone playing that jam deserves a writers' credit & therefore publishing.

Hope this helps. thanks for writing & as always,

best of luck,
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 .

 
 

 

 

Laura Williams manages SoundExchange’s communications strategies, including the new, better-than-ever www.SoundExchange.com. She holds degrees in Political Communications and Writing from Susquehanna University.

Imagine you’re at a busy metropolitan airport. The luggage carousel goes around, and people stop by, check the luggage tags, and pick up their belongings. As the day wanes, though, there are still lots of suitcases left on the conveyer belt with no luggage tags and no one to claim them. Now, what if I told you that those suitcases are all filled with cash – stacks of bills totaling millions of dollars – and some of it might be yours.

 

This is the problem created by the music industry’s awful lack of standardized, quality metadata. Before the late 1990s, copyright law offered no compensation to the recording artists or copyright holders of sound recordings – unlike songwriters and publishers, these creators of music didn’t earn a royalty when their work was used by music services. Now, that loophole in the law has been closed (at least for digital services – AM and FM radio are still unfairly exempt from paying their fair share, but that’s another story). As we discussed in a previous post, the Copyright Office appointed SoundExchange to collect those royalties and distribute them to the artists and owners. Before that happened, no one had an incentive to keep a database of contact information on recording artists – who played on which track, and how to reach them now – or copyright information – which label or artist owned the masters on any track. So when music services began sending royalties to SoundExchange for the tracks they’d played, we faced an enormous challenge.

 

There are three major areas of data failure along the path of getting money to artists and copyright holders. One: the failure of artists and copyright holders to register with SoundExchange. Two: the failure of the services which use music to properly report what they’ve used. Three: the failure of copyright holders and artists to provide good metadata with tracks before release, and to claim their repertoires after release. But there’s good news – all of these are problems we can work toward solving, so that artists and copyright holders can get paid faster and more efficiently. Let’s look at each data gap, and what we can all do to help fill in those gaps.

 

Artists and copyright holders fail to provide or update registration information with SoundExchange.

 

Services which use music pay SoundExchange royalties for each recording they play.

 

This happens whether the artist has registered with SoundExchange or not, whether they know about us or not, because it’s required by law. That money is then held in escrow for the artist or copyright holder until they register. An artist who registers today can claim their funds all the way back to the first collection in 1996 – but they MUST register with SoundExchange. SoundExchange can’t absorb or spend the unclaimed money – we’re a non-profit – but without the necessary payment and contact information, the money languishes in a marked account, waiting to be claimed.

 

There have been occasional grumblings in the media about SoundExchange being unable to “find” artists – as though having a website for someone is the same as being able to pay them. As an independently audited non-profit, SoundExchange needs registration paperwork, signed by the payee, a state ID to prove identity, and tax forms to be able to cut a check. Many artists do not register, even after being contacted four, six, or more times. Their money just sits here until they come and register.  After registering, all artists and copyright holders to make sure that they keep their contact information and payment information up to date.

 

2. Services which use music and pay royalties to SoundExchange fail to properly report the tracks they have used.

 

A huge percentage of this responsibility for providing good data falls on the music-using services, who must file the proper reports of use with the royalties they owe to artists.

 

Reports sent to SoundExchange which are supposed to tell us whom to pay often contain entries like “Playlist unavailable” or “Artist Unknown”. Sometimes this is because the services do not have accurate information on the songs they play.  For instance, a recording owned by one rights holder may be licensed to another for use on a soundtrack and the label who released the soundtrack may be incorrectly credited as the owner of that recording.  Sometimes this is negligence on the part of services that use the recordings. Under the law, services are penalized for paying royalties late, but there is no penalty for providing bad data, unusable data, or even no data at all. SoundExchange has millions of dollars which came in with no data at all attached. That means we don’t know who the royalties belong to, and we can’t send them out. Further millions are tied up in sloppy reporting: large sums held for “Various Artists,” “Playlist unavailable,” “Artist Unknown,” and “Station break.” Among our top 25 unpaid artists, you’ll find “Beethoven,” who never created a sound recording, and was reported instead of the orchestra who earned that royalty. Some of these funds will never be able to be sent out - there simply isn’t enough information to find out who earned the royalties. But in cases where the track-level information may be traceable, SoundExchange staff sort through millions of these lines of data to correct them, and get people paid. They correct misspellings, track down bad abbreviations and comb through the myriad other variations we receive. And that doesn’t take into account someone like Texas R&B/Gospel artist Kane West, (who may be earning or losing royalties due to misspellings in reported logs containing Kanye West) or hundreds of other near-duplicates which must be untangled with track-level corrections.

 

SoundExchange processed more than 7 billion performances last year. Even if 93% of the log entries we received last year were perfect, that still means 49 million had to be adjusted by hand by our staff. Incomplete and incompetent reporting continues to be a massive problem, as music services use music without providing the proper information to help get its creators compensated.

 

3. Copyright holders and artists fail to provide good metadata with recordings before release, and fail to claim their repertoires after release.

 

We have very significant sums of money held in escrow for “Promo Only,” “Self-Released,” and “White Label.” When sending your releases to all radio (AM & FM, Internet, satellite, cable), make sure that they contain all the proper data services need to report accurately, so SoundExchange can get you paid. We have developed an innovative system called “PLAYS” (Performance Log Archive of Your Songs) which allows any artist or copyright holder to access the performance logs provided to SoundExchange. If you see an incomplete or incorrect listing in PLAYS for your recordings, you can send a message to SoundExchange’s Customer Care department to make the correction. We’ll verify and adjust the performances accordingly.

 

As the first organization to really confront issues of artist and copyright holder data in its day to day operations, SoundExchange is proud to also be on the forefront of helping to resolve them. We have already had several meetings this year with copyright holders and directors of organizations at the highest levels to work on developing consistent methods of encoding and reporting metadata. We have met with the heads of international groups facing the same problems, and worked toward strategies to improve payments.

 

SoundExchange encourages any label or independent artist (anyone who owns master recordings) to join us in our upcoming webinar, a joint project with A²IM, The American Association of Independent Music, to address these and other concerns in getting independent artists and labels their proper royalties. The live webinar will take place Wednesday, February 10 at 2pm ET, and will include a demonstration of the PLAYS data correction mentioned above. Register to attend here: https://www1.gotomeeting.com/register/915090177, or check out our blog after the event for the rundown.

 

So before those suitcases full of unclaimed money go around the carousel another time, make sure you slap a luggage tag on what’s yours. Register with SoundExchange, and make you’re your friends, colleagues, bandmates and contacts are registered, too. Reach out to your favorite digital music services and ask them to report accurately on what they play. Make sure you send out your tracks with all the data you can, and follow up in our PLAYS database to claim your tracks if they’re misreported. Help SoundExchange help you get paid when you get played.

 

 

 

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

Question from Chris in Austin, TX

Hello Mr. Doe,

My name is Chris, and I am a struggling hack in Austin, Tx. Recently I have been involved in extensive songwriting with my chums, and the notion of publishing has come up repeatedly.

Here are my questions:

Is it worth the effort to wrestle through the stacks of paperwork required to maintain complete control over your works, or is it viable to give a publishing house 50% of your money to have them do the legwork?

If you were in my shoes... with a really strong band, really strong material, financial wherewithal and a vehicle, with no exposure outside of Austin, how would you start your assault on the masses?

Thanks for any advice.

Sincerely,

Chris B. Ware, Owner
Branham Amplifiers
Austin, Tx

our band: www.myspace.com/jeremynailmusic

 

What Would John Doe Do?

Chris,

Yes it is worth it to control the publishing. If you read any material on the subject (something every musician should do but most don't), they will all say the same thing. You don't have to worry about it until you release something & the publishing royalty actually matters. Some record companies don't even pay "mechanical" royalties any more, but they all are supposed to. If you are completely inept at working through the paper work you can register your song through a publisher as an administrator who normally takes only 10%.

First I question your phrase "assault on the masses". How about trying to create a small buzz in your own town? Continue to build your fan base in Austin, using all the usual means to do that. Play as many shows as possible. Stay away from small town politics. Try to get opening slots on shows w/ touring/national acts. And above all, make friends w/ other bands/singers etc. As you may already know this biz is built on relationships w/ others. Having strong attendance is the only way you'll have a chance at getting a booking agent, which is the best way to get out of town. Obviously you can start by playing in cities nearby. If you have some sort of buzz in more than one area, so much the better.

good luck always. life is struggle.

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

Paul Chodirker is an entertainment lawyer at Heenan Blaikie LLP in Toronto. He is also featured on the “law boys” radio segment which can beheard every Wednesday night on the Toronto-based radio station, 102.1 The Edge.

Are we there yet? So, you’ve recorded your music, found a producer interested in using your song in a film or television series, and negotiated a price for a synch and/or master-use license…so, now what? Well, everything else.

What else should you be weary of before signing a synch and/or master use license?

Limited Media and Internet Rights

The film or television producer is going to want to use your song in all forms of media. So, the licenses they have you sign will most likely contain a clause which states that the song can be used in any and all media. Basically, this means that the producer can use your song in a film or television program that is released theatrically, over the internet, through video-on-demand, free TV, etc. – all media – get it? This is very standard and a producer will unlikely agree to anything unless they can exploit the song in all forms.

Terms of Rights

A producer, unless they are receiving very bad legal advice, will never license use of the song for a limited period of time (e.g. 10 years). They will almost always ask for a perpetual license. This allows the producer the right to use the music forever, or for the duration of copyright. Otherwise, they will have to renew the music license when the term expires, which they don’t want to do.

Sales and Mechanical Royalties

This probably wont be applicable to indie musician’s who are not in great demand. However, once your music becomes popular, or if a producer absolutely needs your particular song in his or her film, you may want to negotiate additional royalties on top of the license fee. For example, you can ask for royalties based on a certain number of DVD units sold.

So, what about the inclusion of your song on a soundtrack? If a producer wants to include your music on a soundtrack, they’re going to have to do two things:

1. They will need soundtrack album rights to either be included in the master use license, or obtain a separate agreement for such rights. Remember, only the owner of the master recording(s) has the right to license the use of a master in film.
2. Either the producer or the soundtrack record company will need to obtain mechanical licenses from your music publisher or yourself (if you haven’t assigned your compositions to a publisher), in order to make mechanical reproductions of the underlying composition contained on the masters.

That’s it. You’re done! Go ahead and sign that synch and/or master use license and prepare to hear your music in the background while Matthew McConaughey and [Kate Hudson/Jennifer Lopez/Meg Ryan/ Jennifer Garner/or Jennifer Aniston] finally tell each other how much they mean to each other.

Remember, I never said you had to agree to every movie deal.

A graduate of the University of Texas and Harvard Law School, Passman is listed in The Best Lawyers of America. He is the author of the nonfiction bestseller All You Need to Know About the Music Business , which has sold more than 150,000 hardcover copies in print. Passman has lectured extensively on the subject of the music industry, including teaching a course at the University of Southern California Law School's Advanced Professional Program, and lecturing for the UCLA Entertainment Law Symposium, Harvard Law School, the American Bar Association, the Practicing Law Institute, the USC Entertainment Law Institute, and the Los Angeles Copyright Society.

 Question:

Assuming an independent musician has no record label, is the sole songwriter and owns their copyright and has digital distribution for a flat annual fee - How would they earn royalties from the sources below? Who collects and pays the royalties for each?

- Non interactive radio (Pandora) 

Answer: There’s some question whether Pandora is “interactive” but for now, a court has held it is not. Assuming that’s correct, there is a compulsory license under the copyright law for the masters, and the monies are collected by a nonprofit company called Soundexchange.

ASCAP / BMI (performing rights societies) collect for the songwriting.

The artist (who is also the record company and publisher in this example) affiliates with each of these companies for payment.

- Streaming services (Spotify) 

Answer: Interactive streaming requires a license for the master from the company; there is no compulsory license, so they can charge whatever they can get. There are “aggregators” (like Tunecore and Orchard) who put together small companies and re-license the digital rights to masters. That would make sense for an owner/user like this example, because it’s hard to get streaming services to make one-off deals.

Songwriting is collected by ASCAP / BMI.

-  Digital downloads (iTunes) 

Answer: Master rights are also licensed directly, or through aggregators, as above.

Publishing rights are done directly, or through Harry Fox.

- Subscription download service (eMusic) 

Answer: I assume you mean a streaming subscription with a number of downloads included? If so, they need all the licenses above.

- Video streaming (YouTube) 

Answer: The record company makes a deal with the site. Songwriting isn’t totally settled. Mostly, the record company gets paid by the site directly, then pays the songwriter / publisher.

Paul Chodirker is an entertainment lawyer at Heenan Blaikie LLP in Toronto. He is also featured on the “law boys” radio segment which can be heard every Wednesday night on the Toronto-based radio station, 102.1 The Edge.

So You Still Wanna Do The Show Business? 

The title to this article comes from a lyric in a song called, “Show Business”, by A Tribe Called Quest. It’s one of the best songs that deals with the business of the music industry. This article deals entirely with the business side of having your music featured in a film. In the first part of this article, we dealt with the legal side of licensing music in film. Now, it’s time to negotiate the deal.

As stated in the first part of this article, the producer of a film is going to need a synchronization and master-use license if they want to use the master recording of a song in the picture. So, who issues these licenses?

• Synch licenses are issued by the entity that owns the musical composition; usually the composer, or more often, a music publishing company. However, synch licenses can also be obtained from various licensing agencies such as the Harry Fox Agency in the US, or the CMRRA (Canadian Mechanical Reproduction Rights Agency) in Canada. These agencies may have the non-exclusive right to issue the license on behalf of the publisher or owner. Many music publishers use these groups to administer the reproduction rights of the copyright holder in the underlying composition.

• Master-use licenses are issued by the entity that owns the master recording (typically a record company, or the artist…if they’re lucky).

So, how much will it cost the producer to acquire a synch and master-use license? This question is difficult to answer because the cost of licenses will be dictated by market value, the popularity of the song, and the budget of the production. A song can be purchased for use in a film for anywhere from $1 to over $50,000. It’s not uncommon for a publisher to charge a synchronization fee of $15,000. However, film producers are becoming much more savvy when it comes to licensing songs in their films. As discussed previously, many of the most popular soundtracks feature independent artists that have little or no exposure to the public-at-large. The fact is, indie music is becoming increasingly popular for use in films because they’re cost effective and provide the movie with cultural cache…it’s cooler to use a song from the new album by Band of Horses than it is to use a song by Def Leppard (with the exception of using “Pour Some Sugar On Me” in Coyote Ugly).

Far too many indie musicians and publishers care about the money they might receive from licensing their music in a film. There are several advantages to putting less emphasis on the money and simply getting your song in the picture. Some of these advantages, include: 

1. Exposure/publicity – having your song included in a film is one of the best ways to expose your music to a larger audience. This is especially important if you’re lucky enough to have your song released on a soundtrack.
2. Public Performance Royalties – Worldwide exposure of your song (if you wrote it), whether it be in theatres, or free/pay TV, will mean public performance royalties from ASCAP in the US and SOCAN in Canada.
3. Loyalty – if you negotiate a fair deal with a producer, the chances are very good that he or she will come back to you for more songs.

Quick. What was the song used for the end credits for the major blockbuster movie, “Wedding Crashers”? It was a song called “Aside” by Winnipeg’s Weakerthans. Surprising, isn’t it? The paradigm is shifting and indie artists need to get on board because no matter how obscure your band might be, there is always a place for music, popular or not, in film.

So, once you’ve agreed on a price and you’re ready to see your name in lights, what should you be weary of when signing the synch and master licenses? This topic will be included in part 3 of this article.

 

 

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.