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Early in their careers, most musicians find it hard to believe that their band might ever make enough money to fight over. But sooner than you think, success may arrive, and without clear terms of how the band is organized and who controls what rights, your best friends and fellow musicians may become your worst enemies. Anyone who seeks to enter the complex world of the music business ought to know what to do in order to avoid derailing a high-speed ride to the top of the charts.
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About the Author
Lee Wilson is a Nashville writer, publisher, and intellectual-property lawyer. A graduate of Rhodes College, she has worked as a newspaper reporter, advertising copywriter and producer, and freelance writer. She is a graduate of the University of Tennessee College of Law, where she served on the board of editors for the Tennessee Law Review. In private practice in Nashville since 1984, she has served on the boards of the Sinking Creek Film Celebration, as president of the nonprofit organization that publishes the scholarly Cumberland Poetry Review, and was founding president of the Tennessee Writers Alliance. She is president of Magellan Press, Inc., the Nashville publisher of the Where the Locals Eat series of US restaurant guides and other nonfiction books. She has written several books herself, the most recent of which are The Copyright Guide, The Trademark Guide, and Making It In The Music Business: The Business and Legal Guide for Songwriters and Performers, all of which are published by Allworth Press of New York. She also periodically writes a legal affairs column for Communication Arts magazine. Her latest book, The Advertising Law Guide, was published by Allworth Press in 2000. She lives in Pleasant View, Tennessee. Lee Wilson offers a free fifteen-minute phone consultation to any Tennessee artist with a problem or question. Call her at (615) 746–4502 with questions.
Read an Excerpt
Making It in the Music Business
A Business and Legal Guide for Songwriters and Performers
By Lee Wilson
OPEN ROAD INTEGRATED MEDIACopyright © 1995 Linda Lee Wilson
All rights reserved.
Many songwriters believe that copyright law is simply tedious stuff that nobody except lawyers and maybe music publishers needs to know anything about. In fact, copyright so permeates the music business that a working knowledge of copyright law is essential for anyone who hopes for any sort of music career. Since copyrights are their stock-in-trade, songwriters especially need to know plenty about copyright law, both to protect their own rights and to avoid violating the rights of others. That's why the first four chapters of this book explain copyright law and the business practices that surround the exploitation of music copyrights. Don't think that four chapters on copyright is overkill. In fact, unless you read and understand these chapters on copyright, you can skip the others, since without a working knowledge of copyright law you'll be too uninformed to create a career in music anyway.
The rights of all U.S. copyright owners are created by the U.S. copyright statute (a statute is a written law), which is the latest in a long series of copyright statutes passed by Congress. (There is no such thing as a state copyright statute; there is only one copyright statute in the United States and that statute is a federal statute.)
Our copyright statute exists because of a provision inserted into the U.S. Constitution by the men who wrote it. Article I, Section 8, Clause 8 of the Constitution gives Congress the power to make a law that "promote[s] the Progress of Science and useful Arts, by securing, for limited Times to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries." This section of the Constitution is the origin of both the U.S. patent and copyright statutes. The idea behind this provision was to encourage American citizens to create books and inventions by giving them property rights in their creations.
Congress passed the first American copyright statute in 1790; it protected only books, charts, and maps. Musical compositions were granted copyright protection in 1831, photographs in 1865, paintings, drawings, and statuary in 1870, movies in 1912, but sound recordings were not granted protection until 1971. The newest U.S. copyright statute became effective January 1, 1978. It aims to encompass both existing and emerging technologies for creative expression by stating simply that copyright protects "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." (The new copyright statute refers generally to all copyrightable products of the imagination as "works" and to the creators of these "works" as "authors," even when the "work" created by the "author" is something besides a book. We will occasionally adopt the terminology of the copyright statute in our discussion of copyright, and that discussion will focus on musical compositions, since those are the sorts of "works" that primarily concern songwriters.)
The implications of the phrase "fixed in any tangible medium of expression" affect every songwriter. Since the new copyright statute became effective, copyright protection for any song you write begins the moment your song is recorded on tape or written on paper, but not before, even if you've carried your tune around in your head and sung it in the shower for months. Since the "fixation" of your song is the trigger for copyright protection, you should record your song on tape or reduce it to a lead sheet before performing it live in a club. You don't have to rent a studio and hire musicians to produce a 16-track tape of your song or hire an arranger to reduce it to a completely notated score to trigger copyright protection. All that is necessary is that your music and lyrics be recorded in sufficient detail that your song is accurately represented. A guitar-vocal cassette recorded on a boom box or a simple lead sheet with the lyrics and melody of your song will do it. Copyright begins once your song is "fixed." Unless you write a song as a "work-for-hire," because you wrote it, you own the copyright in it until you transfer ownership of the copyright to a music publisher under a song publishing agreement. (We'll talk more about work-for-hire and transfers of copyright in Chapter Four.)
But what, exactly, is a copyright? A copyright is a set of what are called "exclusive" rights. Exclusive rights may be exercised only, or exclusively, by the owner of those rights. Although copyright protection does not begin until a work is "fixed in [a] tangible medium of expression," copyright itself is intangible; that is, you can't see a copyright or hold it in your hands or put it in your pocket. It is invisible, but valuable. In essence, a copyright is your admission ticket to participate in a complicated system based in federal law that exists to ensure that you as a songwriter get paid for any use of your songs. Even the lowliest unpublished, unrecorded songwriter can count on the full majesty and power of the U.S. government to help perfect and protect his or her song copyright, even if it is a bad song, because the copyright statute is a federal law, administered by a federal agency, the Copyright Office, and the courts that hear copyright suits are federal courts.
(Consequently, however, all this law ends at the border, because U.S. laws have no jurisdiction outside the United States or its territories other than the more or less reciprocal recognition other countries grant U.S. copyrights under the various copyright treaties to which the U.S. is a party. Under certain conditions that are too complicated to explain here, the copyright statute also limits the right of some foreign nationals to enjoy the protection of U.S. copyright law even if they create otherwise copyrightable works within the United States. If you're not a U.S. citizen, you may want to ask a copyright lawyer to help you determine under what conditions your songs are protected by U.S. law.)
Under the present copyright statute, copyright protection automatically begins when you first fix a song in tangible form. No formalities are necessary to acquire the protection of copyright law; you don't need anyone's permission to protect your new song with copyright and you don't have to file anything with any government agency. Copyright protection follows automatically, by action of federal law, from the act of creating a copyrightable work.
Many songwriters assume that their songs are unprotected by copyright until they send off application forms and fees to the Copyright Office to register them. This is not the case. Neither is it necessary to use copyright notice to secure the protection of copyright. The existence of the song as written in lead sheet form or recorded on a cassette is sufficient to trigger copyright protection. However, although copyright protection actually begins the moment a song is first fixed in any tangible form, the full range of benefits of copyright are not secured until the song is registered and unless proper copyright notice is used, as we will discuss at greater length in Chapter Two.
In short, the vast federal copyright machinery is like a bulldozer standing guard over the rights given you by the copyright statute, ready to help you squash anyone who would disregard them—but you have to set it going. Your key to federal copyright protection is the set of exclusive rights the government grants you, as a new copyright owner, whenever you write a song.
The exclusive rights of copyright applicable to musical compositions are:
The right to reproduce the copyrighted song in "phonorecords" (a term that includes vinyl records, cassette tapes, CDs, and all other "material objects," except audiovisual recordings, that embody recordings of copyrighted works) or otherwise make copies of it
The right to distribute copies or phonorecords of the copyrighted song to the public
The right to create "derivative works" (alternate versions) of the copyrighted song
The right to perform the song publicly
With certain narrow exceptions, no one but the owner of a song copyright may exercise any of these rights. Any unauthorized exercise of any of these rights by anyone but the copyright owner is called copyright infringement, because any poacher on the copyright owner's territory is said to "infringe" upon the owner's rights, or violate them.
It's easier to understand these four exclusive rights of copyright if you consider them in terms of the ways songs are used.
Because the copyright statute gives you the exclusive right to reproduce your song in "phonorecords" and the exclusive right to distribute any such phonorecords to the public, only you may record it and sell copies of the recording in the form of vinyl records, tapes, CDs, and other phonorecords. This is true unless your song has been recorded previously with your permission and the recording was distributed in the form of phonorecords to the public within the United States. In that situation anyone can issue another recording of the song, subject only to the obligations imposed by law to notify you in advance of releasing the new phonorecord, to pay you royalties at a prescribed rate, and to furnish you with monthly royalty statements. This provision of the copyright statute is referred to as the "compulsory (mechanical) license" provision. Although you, as the owner of the song copyright, are the one who (theoretically) grants permission, also known as a "license," to record your song, the law makes the granting of such permission compulsory. That is, the law decrees that you must issue such a license. (There are three other, less important, uses specified in the copyright statute for which compulsory licensing is prescribed. Compulsory licenses also apply to uses of songs by PBS television broadcasters and in jukeboxes, and to some cable television uses.)
As a practical matter, however, because the copyright statute sets out strict and specific accounting regulations by which record companies must abide when they record songs under the compulsory mechanical license provision of the statute, record companies prefer to obtain permission to record songs by "direct license" rather than exercising their right to record the songs under a compulsory license. A direct license is a permission to record a song obtained directly from the owner of the song copyright. Record companies like direct licenses because they usually can persuade copyright owners to agree to more lenient accounting obligations and lower royalties than the copyright statute imposes for compulsory licenses.
The right to reproduce a song in the form of records, tapes, CDs, and other phonorecords is referred to as the "mechanical rights" to the song. The royalties paid by record companies for the use of songs as phonorecords are referred to as "mechanical royalties" or "mechanicals." (Most reproductions of songs have been electronic rather than mechanical for many years now, but when phonographs were invented they were mechanical, so we're stuck with the term "mechanicals.") Mechanical royalties are currently fixed by the Library of Congress at 6.6¢ per song for songs of five minutes or less or 1.25¢ per minute of playing time for songs longer than five minutes, per phonorecord sold. These rates are periodically adjusted for inflation; the statutory rate will increase again on January 1, 1996. (It is very common for record companies to pay even less than this small royalty for songs written or owned by the artists who record them, through the "controlled composition" clauses found in most contracts between recording artists and record companies.)
Because the copyright statute gives you the exclusive right to make and distribute other sorts of copies of your song, only you may synchronize the song with visual images, as for a movie, television program, commercial, or other audiovisual project, and only you may print and sell sheet music or make and distribute other visual copies of it. The right to use a song for a television or movie soundtrack is called the "synch (or synchronization) rights" to the song; the right to print sheet music is referred to as the "print rights." (But remember not to call the right to use your song as the "soundtrack" for a radio ad a "synch license," because there are no visuals in radio with which to synchronize your song. A radio commercial license is called a "transcription license," for some reason that nobody remembers anymore.)
Because the copyright statute gives you the exclusive right to create "derivative works" from your song, only you may change its words or music or create other versions of it or derive other works from it, such as a television script based on the characters and story of the song. Another common sort of derivative work that often produces bags of money for songwriters who agree to allow such uses of their songs is the reworking of a song into an advertising jingle by means of new or altered lyrics and/or a revised or shortened melody. (For instance, Mega Airlines could rewrite the lyrics of "The Wind Beneath My Wings" to refer to the joys of flying with Mega Airlines.) The right to prepare alternate versions of a song or create a derivative work from it is referred to as the "derivative rights" to the song.
The copyright statute also gives you the exclusive right to perform your song publicly. The "performance rights" to a song are divided into "small performing rights" and "grand performing rights."
The small performing rights are primarily the right to perform a song on radio and television, in clubs, concert halls, and parks, and in restaurants and other businesses on public address systems. The "performing rights organizations" (BMI, ASCAP, and SESAC) exist to collect the royalties created by these sorts of public performances of songs because it would be next to impossible for individual copyright owners themselves to collect the royalties due them from the many end users of their songs. These "public-performance royalties" typically represent one of the largest sources of income for songwriters.
The grand performing rights to a song are primarily the right to perform it in a musical play or as part of a television show or movie in a way that advances the plot. (In practice, however, the performance of a song in a television show, for instance, will create royalties for the small performing rights, and the grand performing rights will be included in the synchronization license issued by the copyright owner.)
Of course, the exclusive rights of copyright are exercised every day, legally, by people who didn't write the songs they use. How? These users obtain permission from the owners of the song copyrights, who are usually very happy to allow their songs to be used in return for appropriate payment. In other words, it's not trespassing if you have permission.
The exclusive rights of copyright apply only to what is actually protected by copyright. It may surprise you to learn that certain elements of your songs are not protected by copyright, no matter how hard you worked to come up with them. In fact, to understand what copyright protects, you need to know first what it does not protect.
The most basic premise of copyright law is that copyright protects only particular expressions of ideas, not the ideas themselves. This is a hard concept to grasp; it confuses even lawyers and judges. Nevertheless, it is logical, if you think about it. Our Constitution empowered Congress to pass a copyright law "to promote the Progress of Science and useful Arts." In other words, the goal of our copyright statute is to encourage free expression and creation so that all of society may benefit from the insights of the creators among us. If our copyright law allowed people to monopolize ideas, which are the building blocks of all literature, art, and music, free expression would be stifled.
Instead, copyright law gives you exclusive rights only in your own particular, original expression of any idea. Therefore, anyone else's expression of the same idea is equally protectable by copyright, even if that person's expression duplicates yours. In fact, if two people independently come up with identical expressions of the same idea, both own valid copyrights in their expressions of it. The key to understanding this concept of copyright law is the word "independently." No one can copy your expression of an idea without risking a lawsuit for copyright infringement, but if another songwriter coincidentally duplicates the melody of your song, the law says he or she owns the copyright in that duplicate melody just as you own the copyright in yours.
Excerpted from Making It in the Music Business by Lee Wilson. Copyright © 1995 Linda Lee Wilson. Excerpted by permission of OPEN ROAD INTEGRATED MEDIA.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
II. Copyright for Songwriters,
Chapter 1: Copyright Basics,
Chapter 2. Copyright Protection,
Chapter 3. Copyright Infringement,
Chapter 4. Copyright in the Marketplace,
III: The Business of Making Music,
Chapter 5. Partnership Law for Musicians,
Chapter 6. The Name Game,
Chapter 7. Naming Names,
IV: Lawyers and Other Strangers,
Chapter 8. Booking Agents and Managers,
Chapter 9. Lawyers, Guns, and Money,
A. Copyright Registration Form PA,
B. The Songwriters Guild of America Popular Songwriters Contract (model single song agreement),
Appendix D: Trademark Cease and Desist Letter,
Appendix E: Trademark Search Opinion Letter,
Appendix F: Designer's Agreement and Assignment of Copyright,