Understanding Copyright & Creating a Strategy
So, we’ve covered all of this metadata stuff and all types of registration, so now we’re going to briefly hit on what these all mean to you. What are the ‘RIGHTS’ of musicians and how are they related to all of this stuff? Understanding copyright is KEY to creating a great go to market strategy.
One thing to keep an eye on is the Promises of digital royalties for Producers, Mixers and Engineers. There are new bills in Congress that seem to guarantee a brighter horizon for many who have not enjoyed this type of revenue in the past. However, is this future so promising? We’re going to explore the details about the existing legislation and new bills (2018). We write and share our knowledge to help you, the musicians, so lets dive in and learn how to take advantage of underutilized or unclaimed revenue based on existing royalty, rights and trademarks. After looking at those rights, we’ll wrap up this article with a basic plan around ‘Go To Market’ strategies and what makes sense for a musician based on where they are in their career.
What is a musical copyright and how does it work?
Copyright is similar to a trademark or a patent and for a musician and it begins the moment the music and lyrics have been put down on paper, recorded or stored digitally on a computer; basically, when an original composition is placed in a format that it can then be reproduced from. This means that musicians are protected by copyright upon the initial creation of their musical works. The composer is granted exclusive rights to that piece of music, which includes the rights to reproduce, distribute and perform the song, as well as the right to create works deriving from that track.
It is considered common knowledge, in the music industry, that chord progressions cannot be copyrighted. That is because it is difficult to produce a series of chords that have not been previously played by another artist. The melody and lyrics of a song, however, are components that are protected under copyright. A copyright will continue to protect an artist even before their songs have been registered with the Copyright Office and will last for the duration of the artist’s life, plus an additional 70 years following.
While copyright is formed upon the creation of music, musicians will need to register their musical works with the Copyright Office in order to enforce these rights in court. If the musician discovers their music utilized in a manner that they have not authorized and want to claim damages through a lawsuit, the songs will need to have been previously registered.
But what does the copyright really consist of?
The copyright itself is made up of two halves:
- 50% is the songwriting portion, known as the writer’s share.
- The other 50% is the portion relating to the recording process, known as the publisher’s share.
When songs are written and recorded entirely by an artist, who is not signed to any label, this means the musician owns 100% of the copyright. The writer’s share of the copyright cannot be bought, sold, or taken away, however, the publisher’s share may be transferred.
DON’T WORRY if a publisher offers you a deal requiring you to sign away 100% of your publishing rights to them, this just means that you’re giving them one half of the copyright. The creator will always have control of the 50% writer’s share. Many publishers don’t begin making a profit on their artists’ music until they arrange for the placement of each song. Therefore, musicians will ultimately benefit from the publisher’s hussle to do so, because you will receive payments for their work, once the publisher begins to turn a profit on it.
For artists who prefer to handle all aspects of production and publishing on their own, without the help of a publisher, there are licensing companies that exist solely to pitch songs to music supervisors. These licensing companies do not own any part of the song, unlike publishers who control 50% of the copyright.
What rights does a musician holding the writer’s share of the copyright really have?
There are three main rights that are guaranteed through the copyright:
- Reproduction Rights
This is what allows you to record your songs onto a CD or Vinyl, use them in a film or make them available on the internet.
- Performance and Communication Rights
These rights ensure that you have control of any live performances or recordings of your songs as well as where they can be broadcast on the radio or television. The performance and communication rights are necessary when a radio station wants to broadcast your songs or if you want to do a cover of another artist’s song.
- Adaptation Rights
This grants the right to re-write a song with different instruments or added parts. The songwriter is responsible for granting permission or licenses for other musicians to do so.
These are the technical rights afforded to a musician by copyright, but there are also personal rights known as moral rights that protect the relationship between artists and their songs aside from the copyright.
There are moral rights guaranteed to a song’s composer whether or not they currently own the work or its copyright:
- Right of Attribution
This is your right as a creator to be identified and named as the author of the work in question.
- Right Against False Attribution
Consequently, this is your right to prevent another individual from being credited as the author of your work.
- Right of Integrity
This right assures that your work is not subjected to any derogatory treatment that may ultimately be harmful to your honor or reputation as the songwriter.
Fair Use Laws
Fair Use is an exception to copyright protection that will legally allow certain uses of copyrighted music without requiring artist permission --- but what is considered “fair use”?
Outside of educational use, the matter isn’t very straightforward. It is important to remember that fair use is not a right, but merely a defense, which often means that determining whether the unauthorized use of a creative work was fair, is on a case by case basis. However, fair use of music is extremely limited outside of private in-home listening, so ultimately it’s on you to decide whether to take legal action against an individual who has used your songs in some way without your permission.
Copyright Necessities for Licensing Music
Once your tracks have been recorded, mixed, mastered and sound how you want them to, it’s important to assure that each file has all of the necessary metadata, including track credits, which individuals’ licensing your song will need for their records.
TIP: Having all of the meta-data compiled in a text file will be helpful for including this information in e-mails or other required forms once you begin licensing your tracks.
Performing Rights Organizations (PROs)
Before songs can be licensed, they need to be registered with a Performing Rights Organization. The PRO will help with tracking down and collecting royalties for tracks and performances. If you are not affiliated with a PRO, you will not be paid for the “composition performance royalties” that are earned once your song has been licensed and is being played.
The two largest PROs (the ASCAP and BMI) represent over 90% of the songs that are currently available for licensing in the U.S. and operate on a not-for-profit basis.
In addition to the larger PROs, there are some smaller for-profit PROs (SESAC and GMR) that license performance rights outside of government oversight. While the big not-for-profit organizations are subject to decrees prohibiting them from excluding potential members, the for-profit organizations do not face such restrictions and add new members by invitation only.
So, now you have a general idea about what PROs are available to you in the United States --- but how do you go about choosing one to register with?
On the most basic level, all of these organizations will do exactly the same thing: protect you and your interests and get you paid. In general, it’s wise to do your own research on the PROs available to you, to determine whether one has a stronger presence in the genre or music scene you prefer working in. You should also consider reaching out to each of them by phone or email making them aware of your interest in them and request to meet with a representative or even tour their office; this way you can feel out each organization and see if one seems to fit your needs and desires more than the others.
Licensing Musical Works
There are different entities that the music industry relies on to license and administer rights, in musical works, as part of traditional industry practices and legal restrictions. In the days before digital, it was much more cut and dry because determining the boundaries between rights was more straightforward when radio and record distributors represented different commercial channels with distinct licensing needs. Now, digital providers tend to merge these roles, blurring the lines between traditional licensing categories.
Musical Works versus Sound Recordings
There is often a lot of confusion surrounding the idea that a musical work and a sound recording are two separately copyrightable works.
- A musical work can come in many different forms, including sheet music containing notes and lyrics or the recording of the song.
- A sound recording is simply the fixed sounds that make up the recording.
- A musical work and a sound recording are separately protected and can be separately owned under copyright law.
The owner of a musical work owns the exclusive rights under the Copyright Act, which includes the right to authorize others to make use of the rights to create and distribute copies of the work (ex: sheet music, CDs, digital audio files-- the “mechanical” right), to create derivative works (ex: a new work based on an existing composition), to display the work publicly (ex: posting the song lyrics online) and to perform the work publicly (ex: in a venue or broadcast).
The role of a record company is to finance the production of sound recordings and promote the music, and the artist, in addition to arranging the distribution of the recordings through physical and digital copies. It’s widely known that signing on with a record label is a great way to get your music circulating in hopes of reaching consumers, who might just become loyal fans of your work, your tribe.
There are two classes of record labels:
- “Major” labels --- the top 3: Universal Music Group (UMG), Sony Music Entertainment (SME), and Warner Music Group (WMG)
- “Independent” labels --- not entirely owned by one of the three major record labels, account for ~35% of domestic recording industry revenues
When a record label wants to record a song they do not own the rights to. They ALWAYS have to get a mechanical license from the people that do.
A “mechanical” license is what gives a record label the ability to release songs on a phonorecord. This is any format that contains music from vinyl, to cassette, to digital streams, in exchange for royalties paid to the musician.
Statutory Licensing under section 115
In addition to giving musicians the ability to license their music, U.S. Copyright Law also gives legislators the authority to create license standards that allow outside sources to license music in exchange for royalties paid to the copyright holder(s). This is why they are known as statutory licenses because they were put in place by law or statute rather than the parties involved in the licensing of a work.
Anyone looking to make and distribute any form of reproduction of a musical work would need to obtain a license to do so; this can be done simply by serving a notice of intent (NOI) to the copyright owner no later than 30 days after making any phonorecords and before their distribution. Once an individual has served an NOI, that person must provide statements of account and pay the necessary royalties to the artist on a monthly basis.
The Copyright Royalty Board (CRB) is the administrative entity that is responsible for establishing rates and terms for mechanical rights licenses, which is done every five years complete with inflation calculations for the years to come. The CRB is made up of three judges that are appointed and serve staggered six-year terms; the main role of these individuals is to determine the rate that services pay for statutory licenses to establish a standard going rate.
Voluntary Licenses under section 115
Licenses can also be voluntarily negotiated between a copyright holder and potential user instead of abiding by the rates and terms set by the CRB. Mechanical licensing is still largely accomplished with voluntary licenses issued through a mechanical licensing agency, such as the Harry Fox Agency (HFA), or by the publisher. HFA and other licensing agencies tend to incorporate the main elements of section 115 into their licenses, but those terms may vary to some degree. The above terms for statutory licenses effectively establish the maximum amount a copyright holder can seek under a negotiated mechanical license.
New Bills for the Future of Music Making
What could the Music Modernization Act (MMA) mean for the future of digital streaming royalties?
This is a bill that would create a new government agency dedicated to issuing licenses to digital services as well as collecting and distributing royalties to the copyright holders. This formal body is to be run by publishers and will administer the “mechanical licensing” of songs streamed on digital service providers (DSPs) such as Spotify and Apple Music.
Surprisingly, the MMA has support from most songwriters and publishers as well as the DSPs, entities who rarely agree on this type of legislation. As the name suggests, the act would totally modernize the process of music licensing, which has not been altered since the days of player piano rolls. The paper trails formed by letters of intent to every publisher for every share of every song would be eliminated as all of the licensing will be done electronically.
This benefits you as a musician because unclaimed royalties will no longer be held onto by the DSPs and will reach you and every other content creator. The plan is to have the DSPs pay for the formation of a comprehensive database that will finally place all mechanical licensing information in one universally accessible location to eliminate any discrepancies.
Is there a catch?
Usually, when a new bill sounds this good for musicians, there are some downsides to it, but the Music Modernization Act would not only end up benefiting creators as the process of receiving royalties from digital streaming. It will be simpler. It would also allow the streaming services to license all the music on their service accurately to avoid a billion dollar lawsuit. So, the MMA will be a win for both sides and has no foreseeable drawbacks.
‘Go To Market’ Strategies
Now that you have a better understanding of what copyright entails, you can begin planning how to further your career based on what you’ve learned.
See which statement below best fits your current situation and you can find out what we think is your ideal course of action should be.
I have songs that are ready to be recorded.
In this digital age, there are many technologies that allow artists to record music on their own without having to pay for studio time. Independent Ear’s artist Dylan Lloyd released his album ‘The Midnight iPhone Sessions’, which he recorded entirely on his iPhone 7 Plus with the GarageBand app. Musicians can record professional quality tracks without expensive studio equipment.
Once you’ve got some raw recordings of your songs, you can pay to have them mastered by preparing a portfolio of the recorded files and then locating a reliable service to work with. After you’ve received the mastered tracks, you can work on finding a publishing agency and send your songs in for production.
I’ve recorded some tracks and I want to license them to music providers.
The first thing you’ll want to do is, get affiliated with a Performing Rights Organization (PRO) to make sure you’ll be earning royalties for the licensing of your songs. Conduct your own research on the PROs mentioned earlier and look into smaller independent PROs as well to see which organization will best suit your needs and career goals.
Next, look into getting signed on with a record company to help you record and distribute more music. Make sure that you have established a brand for yourself that is represented in your online presence. When a label listens to your music and is deciding whether they want you to sign with them, they will probably do some online searches to see how you’ve presented yourself as an artist. Set up accounts under your artist name on Facebook, Twitter, YouTube, and SoundCloud, ideally you will want them all under the same username to obtain matching URLs for your profiles.
After doing some research, make a list of the top five labels that you’d want to sign on with the most, based on compatibility with your style of music and research them through their own online presences. Once you know enough about the labels and how they function, search the labels on LinkedIn and find employees that you can follow on other social media platforms from your artist accounts. The idea is to get your name out there enough to be recognized and remembered, so when you send a pitch your name and brand will be familiar to the employees there. Try to form, some type of, relationship with these individuals. Ultimately, you want to send your pitch to someone who respects you and has an interest in helping you further your career.
I have a PRO and/or I’ve signed on with a record label, now what?
You probably know that there’s money to be made by getting your music on television, in films, video games and commercials, but to do so, you’ll need to get in with a music supervisor. Music supervisors are the individuals who seek out songs to put alongside filmed content. They negotiate with the song owners, to come up with a fee, to allow them to sync up songs with the media. Unfortunately, emailing or tweeting at music supervisors has rarely gotten any musician very far, so you’ll be better off finding a licensing company, sometimes known as a “song plugger”, as they will have pre-existing relationships with music supervisors.
Some reputable licensing companies include Pump Audio (a division of Getty Images), Rumblefish, CDbaby and YouLicense. These companies can often be reached on their company websites where they allow musicians to submit their songs.
I’m already affiliated with a licensing company, but I want to know what more I can do on my own.
It may be to your own benefit to release some of your music for free on websites like YouTube and Soundcloud to create a presence for yourself as a musician and get your music out there. It is not uncommon for YouTube creators and other filmmakers to reach out to artist they’ve come across on these platforms. Putting your songs out there, in the digital space, is the best way to draw potential licensees of your music. Depending on your page’s popularity, YouTube offers partnerships that could end up earning you a sizable amount of dough, if you increase your presence and following enough to make it worthwhile for them to advertise on your videos.
Also, get your music onto streaming services such as Spotify and Apple Music as you will get paid royalties when your songs reach a set number of listens. Digital streaming has become the most popular way that people enjoy music, so establishing a presence on these platforms is a great way to get your music out there and get paid just for having it out there.