by John Degen — @jkdegen

Article originally posted here: http://www.ascap.com/playback/2016/09/daily_brief/dailybrief_2016_09_01.aspx

Every year around Shakespeare’s birthday, which has also been declared World Book and Copyright Day, I see articles popping up here and there repeating some howling inaccuracies about the legal and economic concept of copyright. I get it — copyright is complex and, frankly, not all that gripping. Also, there’s that free culture movement that says all sorts of truthy-sounding things about how copyright might just be a bad thing. And we’re pro-freedom, right? On the other hand… Shakespeare!… plus all those still-alive authors I love to read, and who need to make a living.

How is anyone supposed to do the work of truly understanding copyright?

I offer this short list of seriously dumb copyright myths to help you through the clutter of free culture bunkum. Hope it helps:

---

Myth #5. Artists Feel Restricted by Copyright

Right… and cyclists feel restricted by bike paths. Drivers feel restricted by the network of roads and highways. Pilots feel restricted by lift and drag.

Truth: Professional, working artists who respect their own work also respect the work of others. Ask one — you’ll see.

Anti-copyright crusaders love to shout about remix culture and how copyright aims to stop it. Real artists understand:

a) Remix culture was not invented by the Internet. Original works of art have been referencing and remixing other original works of art since the dawn of… well, art.

b) There’s a difference between creative remixing and uncreative copying. That’s a line all professional, working artists recognize by instinct, and it’s a line professional artists are happy to have defined by law.

Myth #4. Copyright Harms the Public Domain

First of all, there is no “public domain” without copyright. By definition, the cultural public domain consists of those works of art and expression that have for one reason or another fallen out of copyright protection. You can’t really have one without the other.

Secondly, can we please stop conflating copyright with a lack of access? Anti-copyright activists are weirdly proud of how they “liberate” books into the public domain when copyright terms end. The Little Prince fell out of copyright protection almost everywhere but France at the beginning of this year. Was it more difficult to find, obtain or read a copy of The Little Princebefore January 1st, 2015 than it is now? Are the French suffering culturally because the book — one of the most popular books in the world — is still protected where it was written, and income is still flowing to the estate of the brilliant man who wrote it?

Truth: Just because a work has its economic and moral interests protected by law, this does not mean it’s unavailable to those who wish to access or use it. Works outside the public domain are simply still economically alive, which means folks still believe they’re worth being economically alive. In other words, there’s a functioning economy for cultural works. That’s a good thing, right?

Myth #3. Copyright is an Attack on Artistic Freedom

I have been a working, professional writer for close to thirty years. I’ve felt my artistic freedom threatened by a great many things — state censorship, all manner of fundamentalisms, Internet bullying and shaming… to name but a few.

Copyright law is not on that list, and it will NEVER be on that list. The very foundation of copyright is the insistence that if I create an artistic expression, I own that artistic expression. And if I own something, you best believe I will protect it from those who want to impose their restrictions on it.

Truth: My right to own and profit from my free expression is part of the Universal Declaration of Human Rights. Enough with the Orwellian doublespeak about copyright attacking my rights. Copyright IS my right, dammit.

Myth #2. Copyright Costs Consumers

In a recent, weakly researched piece on copyright, Canada’s National Postpublished without challenge the claim that copyright term extensions for music in Canada will cost “the public billions of dollars in the long term.”

Well, duh. We call that “the economy.”

You know what else will cost the public billions of dollars in the long term?

a) all jobs

b) the continuation of human existence

c) time

Truth: Paying artists for works we want to consume is how we have a cultural economy. As long as we live in market-based economic systems, the exchange of money for works, goods and services is going to be an essential mechanism. Oh well.

Myth #1. Copyright only helps Corporations

This is the whopper of anti-copyright mythology.

Anti-copyright activists love to invoke the specter of “big content” in their relentless drive to weaken artists’ rights. They claim protections under copyright really only help the bottom lines of huge corporations who grab rights from working artists. As a working artist, I am concerned about my contract terms with large corporations, absolutely — but at least there is a contract. The existence of a contractual offer for my rights means my right of ownership is being acknowledged and respected. I sure don’t remember being offered a contract for the use of my work when it was pirated online.

Guess who profits the most from this ridiculously inaccurate and misleading line of anti-copyright reasoning — giant corporations who have built a business model on free content.

Truth: Say what you want about large media corps, publishers, music and film companies, etc. — they’ve made way, way more of a tangible contribution to the livelihoods of the working artists I know than Google ever intends to.

---

There you have it. I hope this quick list has helped my friends and colleagues in the media who may be hurrying to file a story on World Book and Copyright Day. Here’s a final, simple, rule of thumb for writing about copyright.

If you want to understand how a working artist feels about copyright, talk to an actual working artist.

The last time I checked, ivory-tower legal-theory departments and digital-utopian advocacy groups were not the best places to look for actual working artists.

---

John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organization representing more than 2000 professional authors. He is also Chair of the International Authors Forum, which currently represents close to half a million professional authors worldwide. Reach him on Twitter @jkdegen

The following post comes from Alex Heiche, CEO and founder of Sound Royalties, a company working to transform the entire way that songwriters fund their creativity.  Sound Royalties has just partnered with DMN as part of our new, educational series on songwriter financing.

Just like performing artists can chart their path without a label, songwriters also have a lot of different options outside of the traditional publishing deal.  The only problem is that many of the game-changing possibilities for songwriters are still emerging, while musicians and performing artists have enjoyed access to dozens of competing services and platforms for nearly a decade.

Now, all of that is starting to change, with the promise to transform the entire way that songwriters create music and capture its value.  Traditionally, songwriters couldn’t get any financial support outside of publishing agreements with advances, which oftentimes means sacrificing a percentage of royalties in exchange for financing, ‘plugging,’ and administering songs.  Financial groups or institutions have also been buying, selling, and exploiting larger song catalogs for decades, but none of this has trickled down towards the individual songwriter.

Those big institutions can be valuable to songwriters in the right situations, but they aren’t the only game anymore.  It’s hard to say where this all goes, though it’s safe to say that alternative funding for musical compositions will start to expand, with the exciting possibility of jumpstarting the careers of an entirely new class of hit makers, film composers, and other songwriters.  The next few years will be a pretty exciting time for songwriting and music, with lots of new creative and financial possibilities.

The fact is, most songwriters don’t even consider the possibility of getting an advance outside of a traditional publishing contract.  And, most end up toiling through their songwriting under heavy financial pressure, with a host of misconceptions about advances that prevent the writer from taking advantage of them.

That’s a big problem, but one that will hopefully change as we enter a new phase of the music business.  Unfortunately, songwriting advances are up against all sorts of self-imposed hurdles, most of which exist inside the minds of songwriters.  Here are the biggest misconceptions that I’ve found top the list, and if you’re a songwriter, you might be subscribing to one or more of these myths.

Myth #1: You need good credit to get a songwriting advance.

Not true.

Yes, a bank or traditional lending institution typically looks at personal or business credit before considering an advance.  But this approach makes little sense for songwriters.  First off, songwriters don’t always have stable incomes, based on the nature of this business.  Even major writers experience huge fluctuations and occasional dry spells.  That can impact a FICO score because of the uncertain timeframes, but it’s largely separate from the broader royalty flows generated by a song or catalog.

So given those realities, why should songwriting advances be based on personal credit?  Personal credit is actually the worst way to evaluate a writer, because it ignores the most important part: the royalty-generating potential of a song or songs.  That’s the thinking behind the creation of the concept of what we term the ‘noncredit-based advance,’ which relies on a totally different set of metrics to construct an advance.

Myth #2: You need to give up your copyrights to get a songwriting advance.

This is a critical misconception that prevents a lot of great songwriters from even approaching financial partners or entertaining advances.  Or, worse, giving away their golden goose in a bad deal.

The fact is, songwriters should always prioritize deals that involve a return from the royalties that are generated by a copyright, without foregoing control of the copyright itself.  In the advance world, you should insist on that.

Just think of the alternative: giving away control of a copyright means handing the golden goose to someone else.  It’s simple: share the eggs, not the source of those eggs.  That goose could be your income for decades to come, and open an entirely new foundation for continued creativity.

Myth #3: Banks are good financial partners for songwriters.

Before you walk into your branch, know this: in almost all situations, bank regulations and due diligence require them to look at and take into account your credit history.  Basically, the bank can’t care if you’re buying a car, opening a burrito truck, or financing a college education: it’s all about the guidelines and regulations.  Which means banks aren’t accustomed to all the details that songwriters constantly deal with, like significant delays in royalty payments, royalties from multiple sources and licenses, and all the nuances of different publishing licenses, PROs, and splits.  And banks can’t assist in collecting or discovering unknown sources of revenue, which almost always exist.

This is one of the reasons why we’re seeing a totally new class of advance specialists emerging.  Songwriters need to focus on writing, not trying to educate a lender on their business.  It’s a waste of time, and can slow the development of a songwriting career.  This isn’t just someone offering you money, you should approach your financial partner as a teammate in your success.  That’s what produces great compositions, and great works of art.

Myth #4: Songwriter advances require 100% recoupment before you can start earning money.

If you aren’t sure what ‘100% recoupment’ means, please read this section carefully.  Essentially, ‘100% recoupment’ means that you, as the songwriter, must pay back all of the money advanced to you before you earn a dime.  That structure sounds great for whomever is offering the advance, but it can be crippling for the songwriter.  Instead of reaping the gains on a big song, a 100% recoupment structure forces a prolonged dry spell with no earnings, a situation that makes it extremely difficult to focus on the next song.  That slows your ability to create a strong catalog, which is ultimately your source of recurring income over time as a songwriter.

Instead, I strongly urge songwriters to structure agreements that do not include 100% recoupment, but instead, immediately provide an ‘overflow’ or a percentage of song royalties generated by the writer.  That way, income is generated for both sides, and critical financing for the next hit single immediately flows back to the songwriter.  That’s a recipe for a great partnership, and a method for building a strong, evergreen catalog.

Myth #5: It’s tough to get a smaller advance (for example, $5,000).

Not true.

In fact, a smaller advance amount can be easier to secure, and allow you to prove yourself to a financial partner, while giving you critical room to develop new material.  Basically, your advance amount should be appropriate to your expected royalty streams and your current level.  You can always get more money later, after you’ve reached a higher level of income and royalty generation.

Myth #6: You need a publisher to get any sort of advance on your writing.

Absolutely not true, and I hope this article makes that obvious.  That’s not to say that publishing deals can’t be incredibly beneficial for a writer, but the advance that is usually the focus of the publishing deal, shouldn’t be.  They’re just not the only game anymore.  My company, for one, is pushing to give songwriters a lot more options, including long-term catalog ownership (plug: try us out!).

Myth #7: You’re screwed if your song isn’t a hit.

A hit song can change a songwriter’s career arc, and if you’re really lucky, generate income for an entire lifetime.  But even though every hit is a success, every success doesn’t require a hit.  A songwriter can write a valuable film score, for example, or compose a catchy introduction to a hit television series.  Strangely, an intro song to a heavily-watched show can be instantly recognizable, but not a top 40 ‘hit’ in the classic sense.  Add in syndication, and the revenue impact could be similar, if not far better, than a traditional top 40 song.

Other ‘non-hits’ include sonic ‘branding’ used by a major corporation or product, famous lyrics, or even soundtracks to documentaries and non-traditional films.  NFL Films, for example, feature a memorable, signature soundtrack style, yet even the biggest gridiron fans can’t name one of those heavily played tracks.

Myth #8: If you’re presently stuck in an existing advance, you can’t fix it, end it, or start another one.

Sometimes that can be true, but oftentimes it’s not.  The reason is that one advance firm may see your situation (and royalty potential) in a totally different way than another.  So if you’re stuck, trapped, or ‘tapped out’ in an existing advance deal, you lose nothing by examining other alternatives.  The worst that can happen is that you’re unable to shift towards a newer deal, though oftentimes you can restructure your existing advances to get income flowing again.

Even if you can’t make a move immediately, you’ll at least develop a strategy for resolving issues with your present advances.

Myth #9: It’s too complicated to structure an advance with co-writers or other partners.

Not true.  Copyright law and payment systems accommodate partial song ownership, and payouts are split accordingly across every license type.  Some of the biggest songs in the world have multiple writers, and each writer receives their split according to percentage ownership.

Advances on performance royalties, for example, are structured at their source, the PRO (ASCAP, BMI, SESAC).  Your co-writers aren’t part of — or even privy to — the fact that you’re taking an advance on your songwriter share.

Myth #10: Advances offered to songwriters are predatory and always put you underwater.

Sadly, some songwriter advances are predatory and designed to put you underwater.  Frankly, that makes it harder for the companies offering fair, solid advance structures to develop relationships with songwriters, though over time, I think the bad actors will get weeded out.

(Actually, if you’re wondering if a contract makes sense for you, I can easily give it a once over and flag anything that looks out of place.  Drop me an email at Alex@soundroyalties.com)

Myth #11: A songwriting advance will affect your PRO earnings.

PROs have their own way of splitting performance royalty payments, which include direct payments to the writer (regardless of who the publisher or financial partner is).  That structure was put in place to protect songwriters, and the remaining amount would simply be split according to the advance deal you have in place.

So, the basic structure of the PRO payment is not altered.  And with a solid financial advance in place, it will probably increase the overall payouts.

Myth #12: You’re collecting all the money you should be from your existing songs.

Songwriter royalties are incredibly complex, and you may not be capturing all of your income.  We can see examples of this everywhere.  Recent lawsuits involving Spotify and other streaming services revealed that not only were songwriters not being paid their mechanical royalties, but many had no idea what those were.  Stories of unclaimed SoundExchange accounts or unmonetized YouTube catalogs are commonplace, and further  underscore the problem.

Ideally, a great financial partner can help to address issues like these: after all, anyone offering an advance is now aligned with your interests.  The more money they can capture from different licenses and territories, the more money flows back for everyone.  Win-win.

Myth #13: It’s impossible to start a new, separate songwriting deal if you have an existing advance.

Not true.

A traditional publishing deal oftentimes involves a block of songs, ownership of copyright, and exclusivity.  Deals where you don’t require a publishing advance put you in the driver’s seat.  You can structure your advance relationship as you want, involving the copyrights you want, for the periods you want.  As long as both sides agree, then it works!

Thanks for reading, and I hope that helped clear up some of the misconceptions about songwriting advances.  One other thing I should mention is that your deals should always remains confidential, that’s something you should insist upon.  And if you have any questions, maybe I can answer them.  Give me a shout at Alex@soundroyalties.com, or connect with us out at soundroyalties.com.

Happy songwriting, and may you get the financial support you need!

Infringement Or Fair Use: Knowing The Difference- Guest post by Jessica Kane

Here’s an excellent article by Nashville songwriter, Jason Blume. We found it here:

Our goal, when we share a song, is to evoke emotion in our listeners—to have them not only know what the singer is feeling, but to empathize—to feel the emotion. One of the most effective ways to achieve this is by bringing your audience inside the world of your song—showing them a scene unfolding—instead of simply telling them how the singer feels.

Writing lyrics that “show—don’t tell” is one of the basics of songwriting, and is one of the first things taught in almost every songwriting class. But for many songwriters, it’s easier to write lyrics that state how the singer feels. For example: “My heart is filled with happiness”; or, “I’m lonely and my heart is broken.” But while these statements clearly express what the singer is feeling, these types of statements don’t typically evoke emotion in the listener.

By incorporating three elements—action, imagery, and detail—into your verse lyrics, you can write lyrics that tell a story. Note that this tool is primarily intended for verse lyrics. In songs containing choruses, the chorus lyrics tend to be more general. Their function is to be a summation of the concept and to hammer home the title. Telling the story is the domain of the verses.

A: Action

You might recall from elementary school that verbs are figures of speech that convey action or doing. By incorporating action words you ensure that you are avoiding simply stating feelings.

An easy way to include action is to identify the emotion you are hoping to evoke then ask yourself, “What would a person do if he or she were feeling this?”

Instead of saying, “I’m missing you and my heart is broken,” you might write lines that show what missing someone and being heartbroken looks like.

For example:

• I hug the pillow where you used to lay your head
• I clutch a tear-stained picture of you
• I drove to the club where we used to hang, but I couldn’t walk through that door
• I wipe the tears that keep running down my face

Note the action words—the verbs in the examples above: “hug,” “clutch,” “drove,” “walk,” and “wipe.”

Similarly, instead of saying, “I’m in love,” show what a person in love does by writing lyrics such as:

• I wrote your name and mine inside a heart
• I keep singing your name like a favorite song
• I read your text that said “I love you” at least a hundred times

The action words—the verbs in this example are: “wrote,” “singing,” and “read.”

Note that the first lyric examples never actually stated, “I miss you,” or “My heart is broken.” Nor did the second examples say, “I’m in love,” or “I’m happy.” They didn’t need to—because by “seeing” what the person in the song is doing the listeners are able to surmise how he or she feels.

To master the tool of incorporating action it can help to imagine you’re writing the script for a video, and the actors’ actions will be based solely on the words of your lyric. If you write, “my heart is breaking,” you have not told the actress what she is supposed to do to show this.

A listener cannot “see” what it looks like when a heart breaks. But if you write, “She fell to her knees as he packed his bag, and tears ran down her face”—this is something a listener can visualize. The actress knows that she is supposed to fall to her knees and cry.

I: Imagery

Imagery refers to things that be can seen. Words that convey images are nouns. Note that some nouns—such as “heartache,” “sadness,” “happiness,” and “joy”—do not represent things that are tangible. They are descriptions of emotional states. Effective use of imagery entails including words that describe things that can be seen or touched.

While you cannot see “heartbroken,” you can see the images and actions that convey that a person is heartbroken. For instance:

• He falls to his knees and lays flowers on her grave
• She sits in his chair and wipes her tears with a tissue
• He kisses her photo

The images in the examples above include: “knees,” flowers,” and “grave”; “tears” and “tissue”; “photo” and “lips.”

The inclusion of these images help to show that the character in the song is heartbroken. The listeners are better able to empathize with the character’s emotional state because the lyric allows them to envision the character and the items around them, as well as the action taking place.

By including tangible items in your lyrics—things such as: furniture, clothing, a car, a house, a specific place, food, and other concrete nouns, you enable your audience to enter your song.

D: DETAIL:

Detail is the third component that will help you to show what is occurring—instead of telling how the singer or character in the song feels. By including adjectives and adverbs—or adjectival and adverbial phrases—you further describe the scene, allowing your listener to visualize it more clearly. The inclusion of detail also contributes to making your lyric unique and distinctive.

By adding detail to the examples above we can further engage listeners.

• He falls to his knees and lays flowers on her grave – or – He falls to his knees on the cold, muddy ground and lays white lilies from her garden on her grave
• She sits in his chair and wipes her tears with a tissue – or – She sits in his old rocking chair and wipes bitter tears with a wet, crumpled Kleenex
• He kisses her photo – or – He kisses the photo he took of her laughing that weekend they went camping at Reelfoot Lake

Instead of using words like “pretty” or “beautiful,” provide a description. What interests you more?

She could turn every head when she walked in the room
She was the prettiest girl I’d ever seen
More beautiful than any words could ever say Like she’d stepped right out of my wildest dream

or

She had a jet-black ponytail
That curled around a butterfly tattoo
Black stilletto heels, white string bikini top And eyes that could make a sky turn blue

Incorporating Brand Names

Incorporating brand names (i.e., Ray-Ban, Levis, Calvin Klein) and the names of businesses (i.e., McDonald’s, Walmart, Dairy Queen) can be an excellent way to infuse details into your lyrics. For example, countless songs have mentioned brands of cars such as Chevy, Ford, Mercury, Cadillac, and Mercedes-Benz——but is it legal? No—but you won’t be sued as long as you present the product or business in a positive light. Your song essentially becomes a free commercial.

Additional Hot Tips: Establish a Time and Location

Specifying a time when the action is taking place can help you to tell a story—instead of telling how the singer feels. A line of lyric such as, “It was 3 AM on a rainy winter night” almost demands that you continue the story—to describe what happened next.

A time doesn’t have to be exact. It could be:

• The hottest day of summer
• The September sun was right above my head
• It was the middle of the longest night of my life

Placing the character in a specific location is an additional tool that can help you to tell a story. Knowing where the action is taking place can also make it easier to include detail. Is the character in his or her bed? On a roller coaster? In a supermarket? At a nightclub? In an airport? At a restaurant? In a cabin in the woods?

Examples:

• I was sitting in my truck
  Underneath a streetlight
  Outside the house that used to be ours
• The sun peeked above the ocean
  As I woke up on a beach in Waikiki

To view some lyrics that include exceptional use of details check out:

• I Drive Your Truck (recorded by Lee Brice; written by Jimmy Yeary, Connie Harrington, and Jessi Alexander)
• Last Friday Night (recorded by Katy Perry; written by Max Martin/Dr. Luke/Bonnie McKee/Katy Perry)
• Terms of My Surrender (recorded and written by John Hiatt)
• Irreplaceable (recorded by Beyoncé; written by Amund Bjoerklund/Mikkel Eriksen/Tor Hermansen/Beyoncé Knowles/ Espen Lind/Shaffer Smith)
• Night Changes (recorded by One Direction; written by Niall Horan, Zayn Malik, Harry Styles, Liam Payne and Louis Tomlinson, along with Jamie Scott, Julian Bunetta and John Ryan)

There are no rules in songwriting, and I’m not implying that you should never tell how you feel in a lyric. Countless songs have become hits without the benefit of this tool. But it’s an important tool to have in your proverbial toolbox.

Detailed stories filled with “pictures” are the cornerstone of the lyrics of Nashville’s current hits—but as you can see from the lyrics referenced above, this tool can help set your songs apart in every genre. Infusing your lyrics with A: action, I: imagery, and D: detail can be the ticket to deliver your lyrics to your listeners’ hearts—and your career to the next level.

---

Jason Blume is the author of This Business of Songwriting and 6 Steps to Songwriting Success (Billboard Books). His songs are on three Grammy-nominated albums and have sold more than 50,000,000 copies. One of only a few writers to ever have singles on the pop, country, and R&B charts, all at the same time—his songs have been recorded by artists including Britney Spears, the Backstreet Boys, the Gipsy Kings, Jesse McCartney, and country stars including Collin Raye (6 cuts), the Oak Ridge Boys, Steve Azar, and John Berry (“Change My Mind,” a top 5 single that earned a BMI “Million-Aire” Award for garnering more than one million airplays). In the past eighteen months he’s had three top-10 singles and a “Gold” record in Europe by Dutch star, BYentl, including a #1 on the Dutch R&B iTunes chart.

Jason’s songs have been included in films and TV shows including “Scrubs,” “Friday Night Lights,” “Assassination Games,” Disney’s “Kim Possible” “Dangerous Minds,” “Kickin’ it Old Skool,” “The Guiding Light,” “The Miss America Pageant,” and many more. Jason is in his nineteenth year of teaching the BMI Nashville Songwriters workshops. A regular contributor to BMI’s Music World magazine, he presented a master class at the Liverpool Institute for Performing Arts (founded by Sir Paul McCartney) and teaches songwriting throughout the U.S., Australia, New Zealand, Norway, Ireland, the U.K., Canada, Bermuda, and Jamaica.

After twelve years as a staff-writer for Zomba Music, Blume now runs Moondream Music Group. For additional information about Jason’s latest books, instructional audio CDs, and workshops visit www.jasonblume.com

Here’s an excellent article from Jeremy Dean. It was originally posted here:

SONGWRITING, MUSIC BUSINESS, LICENSING/ROYALTIES

The navigational tools of the music business can sometimes be confusing or misrepresented. To newcomers seeking a way to make their climb, it is a very frustrating circus of events to hurdle. Some of the most common misunderstandings on the business side of independent songwriting are the management of rights, registration and residuals of the business value of those works; most notably, royalties.

It is imperative that songwriters (who do not have publishers to handle the paperwork) address questions on this topic before allowing a work to be used commercially. Otherwise, it can become an even bigger, more expensive, headache to sort out after-the-fact. While there are proprietary structures as to how each major royalty-managing operation functions as a whole, having a basic understanding will help you navigate this difficult side of the business.

ROYALTIES

What are royalties? As naïve as it sounds, some of us started writing “for the love of it,” and in the beginning we didn’t really anticipate anyone else wanting to utilize our art for their own success. So, we poured our hearts and minds into musical poetry with no real intention of understanding the value of our own experience and creativity. But now someone wants to record our song?

I often find it interesting amongst newcomers that their perception of royalties is based mostly on their understanding of the major performance rights organizations, which we will discuss shortly. But let us make a quick distinction:

“Mechanical Royalties” refers to licensing that is paid for the rights to use your work. Obtaining this compulsory license is required for anyone to use your work commercially. Without your expressed permission through this licensing, works recorded without your knowledge or consent are illegal. Unauthorized use may be subject to legal action, to collect due royalties and civil penalties for your protected works.

The very first step in collecting royalties in songwriting is directly related to the licensing for use of that song. As an independent publisher, having gone through the acceptance process, my catalog licensing is managed through the premier rights organization, Harry Fox Agency (HFA). When one of my songs is solicited for recording, my association with HFA allows me to direct the solicitor to their website, where they can pay for the mechanical rights to record my songs. The solicitor licenses the number of product units they will be selling and will return to the site to pay the additional mechanical licensing royalties for any additional product sales later on. My association with HFA also gives me legal backing in the event audits or collections are necessary against solicitors or people who use my works without my knowledge.

“Performance Royalties” refers to royalties collected by your Performance Rights Organization (PRO). In the United States, these organizations would be ASCAP, BMI, or SESAC. You can find an abundant amount of information on these organizations online to familiarize yourself. Their responsibility is to collect for the performances of your songs on radio, television, live and digital venues. They do not handle the management of the song rights themselves, which is why you need the mechanical license in place for works made available for recordings.

SESAC – https://www.sesac.com
BMI – http://www.bmi.com
ASCAP – http://www.ascap.com
United Kingdom – PRS – https://www.prsformusic.com/
Australia – APRA – http://www.apraamcos.com.au

As an independent songwriter, there are networking and learning opportunities your PRO can direct you to, even if your songs are not yet in a position to collect performance royalties. It is my advice that you go through the application process of obtaining a PRO as soon as possible and continually look for ways to interact with PRO programs or advice platforms offered. Specifically, they offer songwriting workshops that will contribute to your growth in the crafting of songs while you learn to navigate the business.

For more information on royalties, please visit: https://www.royaltyexchange.com/learn/music-royalties/

ROYALTY SPLITS

I am not going to dive too deep into the science of this topic; however, I will direct you for more information below. This is VERY important to discuss with ALL music and lyric cowriters you work with UP FRONT.

Going into a co-write session is one of the most enjoyable things I do… most of the time. I love the psychology, chemistry, and social diversity approaches that can often thrive in complex writing scenarios. Co-writes can simply be fun, they can create novel approaches to songwriting, or feed a mutual sense of humor. They may also reveal interesting angles and new approaches to some idea you have tunnel-vision on. True, sometimes co-write sessions can become frustrating. Whichever the case, the business of co-write sessions is IMPERATIVE to address, so that misunderstandings in this are minimal and promising creative opportunities are constantly promoted.

When you sit down for the first time with a co-writer, it is important to discuss royalty splits regarding the lyric and music creation and how the royalty percentages will be owned. As my general practice, I co-write with other writers establishing an even split agreement up front. This means that all potential royalties earned by each song later on will be split evenly every time, regardless of who is going to address the music and who might have more lyrical contribution on a particular work. This allows for a more song-focused approach for us, without the added pressure of arguing over whose line gets used each time to increase their percentage.

When I write with new songwriters, I do not go into the co-write expecting to make a bigger percentage. I do anticipate, however, ending up with a higher count of lyrics or directing the creation of the musical composition. I still do the 50/50 split because I am taking a risk to establish a working relationship that could reap future rewards and opportunities. Secondly, in order that the new songwriter will not be fighting the added pressure of feeling defeated before they have even gotten a good foot in the door, an equal split is important.

Published writers often utilize varying percentages based on their relationship with their publisher, and the splits in their established agreements. Published writers also are not generally permitted to co-write with independent songwriters, as a matter of contract, since the publishers are in business and seek to make the most of their investments by utilizing their writers within their own network of established professionals. That said, it is very important to address royalty splits before entering into a new co-write, so that pitfalls do not arise in the most awkwardly frustrating moments of potential success.

A final note on this topic is the discussion of creating a demo. Once a song has been co-written by two independent songwriters, the most common question I get asked is, “Who pays for the demo?” A demo is a recording of the song that will be used to “pitch” for commercial label, artist, or other industry opportunity consideration. Demo production is a discussion for another time. But, on the business side of things, it is important to establish the boundaries of the working relationship.

Based on my working relationships with established songwriters, I have found the best advice being, “Make it your baby.” When I co-write a song, I do not obligate myself to help pay for a mutual demo production. I also do not solicit that obligation from the co-writer(s). After a song is written, each writer can do with the production of that song (on their own) whatever they feel best, in order to promote it through their own networks of success. I have demos of various genres for some of the same songs, and that is perfectly fine. It is my belief that this broadens the opportunities of commercial consideration for that song within the music business, since you never know what can happen. It also does not obligate my independent songwriter dollar to push songs to the top of my list that might otherwise be lower on my to-do list.

This consideration is important to discuss up front, as I have been in situations where songwriters thought a co-write would also be a way to tap into my production skills at no cost, or that I would help them finance a recording project if I helped them write the songs for the project. Meanwhile, in those cases, I have had a growing list of other production priorities. So, for me, it’s more efficient to let the co-writer know up front that anything that happens with the song will be split fairly, and that they are welcome to produce it however they see fit in the end, at their own expense. “Make it your baby.”

For more information on royalty splits, please visit: http://www.hevedburgmusic.com/article3.html

PUBLISHING COMPANIES

I have touched on Mechanical Royalties, Performance Rights Organizations (PROs) and their importance, but I want to mention the involvement of publishing companies in the songwriting business for a minute. As an independent songwriter, early on, it was my goal to produce a catalog of quality songs and obtain a publisher who would then promote them to the necessary people who could connect the dots. And, while that is certainly still a conversation I enjoy from time to time, I have been in Music City since 1997 and have heard the pros and cons and watched other songwriters in my networks get trapped in shady “publishing deals,” gift-wrapping their creative achievements for a funeral.

An effective publisher will manage your catalog and royalties, handle the necessary paperwork, promote you through their channels, direct production of your songs and develop your network. But, within that relationship it’s still up to you and what you can do crafting your art that will determine what happens.

Not all publishing deals are legitimate… Let’s get that established first. A publisher who cannot do more for you than you can do for yourself is just expensive baggage and is not a credible source of realistic achievement. They seem to pop up everywhere. They solicit songs, they make promises, they feed dreams, they keep you on a chain, and they look good doing it. But if wasting time is what you are into, you can do that yourself as well.

The viable publishers in Music City are active, have a current list of successes, and will make more money on your songs than you will (most likely) when it’s all said and done. Just like most artist deals today, publishing deals are a loan. They will recoup their money before you get paid royalties. It’s important to keep that in mind, because I find today that many of the successful independent artists, songwriters, and producers are all pushing harder, reaching higher, and working more effectively on their own. Often, they choose to do this outside those structured arrangements, even if the scale of their monetary success is a fraction of what the “big boys” make.

This industry is incredibly difficult today, even for the most established publishers. So, you are going to have to be active (the squeaky wheel sometimes) to make things happen. Until you can PROVE that you need an established publisher, you are your own publisher. It benefits you most to learn the process. There are several great books, with sample contracts available, that can get you started in handling this for yourself. It will not be what you know, but who you know, that eventually gets you and your creative works established. Networking is still a primary push on the business side of this while you learn.

We would all like a perfect scenario. One where we come to town, we are partnered with people who can make us top-notch, we are sent to a publisher that breathes life and gives wings to our songs, and we sit around collecting money with more time to write. That sort of thinking is why people leave almost as fast as they come to this town. What YOU do in creating, protecting, and promoting your art is going to be the basis on which everything else comes into being.

Jeremy Dean
www.jdeanfx.com

While getting agreements in writing is almost always a good idea when it comes to the music business, there are certain situations where doing so is critical to making sure one’s creative work is protected down the road.

Guest Post by Erin M. Jacobson – Music and Entertainment Attorney, Los Angeles, CA

Musicians often ask me when they need to “get it in writing” as opposed to just having a verbal agreement or handshake deal. The real answer to that question is that you should always get agreements in writing, but there are three frequently occurring scenarios where it’s essential. Doing so will provide you with much needed protection later on when money or fame create unanticipated problems. Here’s how to handle each situation.

1. Co-writing songs

When co-writing songs with others, it’s imperative to have a songwriter split agreement. This is a short agreement listing the writers of the song and in what percentages they are sharing ownership and royalties. There are longer versions of this agreement that lay out more terms, but a songwriter split agreement is the minimum that you should have in place.

This agreement is important because it offers some proof if someone who’s not a writer tries to claim he or she is owed a credit or portion of ownership or royalties on a song. Here’s a story of an actual situation that happened to a band several years ago.

A new band wrote some songs for their first album while in the studio. As is fairly common, the band had some friends and band members’ girlfriends in the studio with them. One of the songs the band wrote that day in the studio ended up being a huge hit for them that produced a large amount of royalties. The band never completed a songwriter split agreement.

A short time after the song became a hit and the money started rolling in, a girlfriend – now ex-girlfriend – of one of the band members contacted the band and said that the band had promised her 10 percent ownership of the song for contributing a certain line. The band said that they never promised her anything, but she threated to take them to court. The ex-girlfriend had no proof she actually contributed to the song, but the band had no proof that she was lying.

In order to avoid an expensive lawsuit, the band had to give her the 10 percent she wanted. While a written agreement doesn’t prevent someone from making a claim, if the band had completed a songwriter split agreement at the time the song was written, they would have had some sort of proof that the ex-girlfriend was not one of the writers of the song or owed any ownership interest in it. They could have potentially avoided giving up 10 percent ownership and income to someone who didn’t earn it.

2. Working with a producer

Musicians often come to me with problems they’re having with a producer. Often, the producer isn’t turning over the masters because there was a misunderstanding between the parties, or sometimes a producer’s claiming more ownership or income share than he or she should.

The source of these problems is usually that the band didn’t get the terms of the agreement with the producer in writing. As a result, the parties had different understandings of what they each thought the agreement entailed, important terms hadn’t been discussed and left to work out at some later date, or someone changed his or her mind because he or she didn’t have anything in writing to dispute the new terms.

Producer agreements are really important because the creator of the music is bringing in a third party who contributes (some more significantly than others) to the masters and sometimes to the compositions. Producers sometimes have claims to master ownership or require a songwriting credit when they haven’t written part of the song. Producer fees and royalty structures can vary based on genre, stature of the producer, and whether there’s a record deal involved. So, again, having the payment clearly defined is essential.

A band came to me recently after working with several producers on their album, with no written contracts. After spending a lot of money on recording, the band had allowed the main producer on the album to dictate terms of compensation with all the other producers. When the album was finished, the band was left with only 10 percent ownership of all compositions and masters on the album when they were the main songwriters and only performers.

I asked the band why they didn’t seek my counsel or other assistance earlier instead of waiting until this point, and their answer was that they had hoped things would improve on their own. Had the band sought advice on this situation earlier and gotten producer agreements in place with fair terms, this situation could have been avoided.

3. Forming a band

Band agreements are also really important because every band is different. In some bands, everyone writes and all members share equally in royalties, and in other bands, only the main members share credit and royalties while other members are treated more like employees. Bands also have unique issues regarding the band name and who can use or perform under that name if the band breaks up or a member leaves.

The time to create a band agreement is right in the beginning stages of the band when all members are still on good terms with each other. The conversation about the issues covered in a band agreement may seem uncomfortable at first, but ultimately clarifies expectations and protects everyone in the band. If certain band members are unreasonable or cannot agree during this initial conversation, that’s a red flag you’ll be glad you discovered sooner rather than later.

Although being in a band is a creative and fun experience, what many musicians forget is that it is also a business, and needs to be run as such in order to stay organized and find success.

Here’s a story about why having a band agreement is important: I received a call from a musician whose band was in the process of breaking up. The band had been together for several years, and this musician wanted to know if he could continue earning income from the band’s songs and whether he could use the band name in the future.

I learned the band didn’t have an agreement and hadn’t discussed ownership of compositions, masters, artwork, the band name, or how any of these things would be treated if the band broke up. The relationships between the members had turned contentious, and there was no way any of them were in an emotional state to agree on anything.

Because the members weren’t talking, it would have taken a lot of investigation or possibly litigation to figure out how the material should be split and who could use the name going forward. It was very probable this musician would no longer be able to profit from the hard work he had contributed to this band over the last several years.

Had the band created a band agreement in the beginning, they could have discussed these issues and decided how all of their material would be treated in the event of a breakup. While the agreement wouldn’t have prevented a breakup, it would have clearly explained how the material was to be treated and how the members could proceed when the event occurred instead of potentially stripping the members of the proceeds of their contributions.

How and where do you get it in writing?

The best option is to hire an experienced music attorney to draft these agreements with language and terms specific to the situation at hand.

If you cannot hire an attorney due to the cost or other reasons, you can download high-quality contract templates drafted by a music attorney at Indie Artist Resource. Each template covers the most common issues faced in those situations by musicians and comes with instructions to facilitate easy completion of the agreement.

If a formal contract is still not possible, having some evidence in writing is beneficial. You can follow a verbal conversation with an email saying, “To recap the terms of what we discussed…” and then briefly summarize the terms so there is a written record of it. While it is not the same as or as strong as having an actual signed contract, it does help to leave some trail of proof if things go wrong down the line. This is a good idea especially for situations where contracts aren’t always used, like casual agreements with venue talent buyers or promoters.

This article was originally published on Sonicbids.com.

Disclaimer: This article is for educational and informational purposes only and not for the purpose of providing legal advice. The content contained in this article is not legal advice or a legal opinion on any specific matter or matters. This article does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you or any other user. The law may vary based on the facts or particular circumstances or the law in your state. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state.

If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.