Disclaimer: This information is for educational purposes only and does not constitute legal advice. Please consult an attorney for counsel on copyright law.
The songwriting process has many facets to it, including idealizing, conception, collaboration, writing, recording, producing, and finally releasing, promoting, and touring. There are sure to be a few bumps along the way, which makes it vital to have everything lined up prior to beginning the songwriting process.
You’re probably thinking to yourself, “I’m not going to go through all of this every time I want to write a song.” Well, let me ask you this: When your song gets licensed by an automotive company for the unveiling and commercials of their next generation of vehicles, who’s collecting those royalties? Who’s going to check to make sure they’re evenly dispersed to all parties? Who has more say in what the company can and can’t do with the track? Who owns the copyright?
I sat down with Davey Jay, an intellectual property and copyright lawyer with Orlando, Florida firm Meehle and Jay, to discuss a few of the grey areas along the way. She’s formerly joined us in articles that discussed copyright misconceptions, trademarks and why they’re important, and the fruitful endeavor of music licensing. Now she’s here to walk us through the entire songwriting process and how to avoid legal troubles down the road.
The rights you have before you start collaborating with other artists
Did you know that as soon as something is made tangible it’s copyrightable? This includes a digital format. As long as you have music in an audio file you have rights to that. Now, while it’s not federally registered (you have to do that with the federal government; more on that later), it’s still enforceable should someone infringe upon your rights.
Working with another person on music can complicate things, but they don’t have to get complicated. One of the first things that should be laid out is a split sheet. A split sheet is a document, like a spreadsheet, that lays out how the royalties are going to be split. “It’s so much easier to agree on things before you have a work to fight over than it is to create the work and then later realize that you’re not on the same page,” states Jay.
If you and someone else are working on a song and recording in a professional studio, then paying for that time should be split evenly amongst the collaborators. “My general rule is, unless they signed something, they shouldn’t be in there,” states Jay.
We may want to share the songwriting process with all of our friends by bringing them into the studio. This isn’t necessarily a good idea because it can create a legal issues later down the road when and if the song does well. I’ve had friends who’ve worked in studios with hugely successful rappers. They’ve brought in their friends and then later on had them claim royalties because they were in the studio - because they threw out an idea that was implemented into the song, they theoretically contributed to the song. This causes confusion and can ruin friendships… quickly.
“I know that goes against the whole ‘this is a good time and let people hang out,’ mentality” says Jay. “That leaves the door wide open for someone to come back and say, ‘Hey, I was there. I helped write that song.’ They’re going to come back and claim that not only did they help write it, but they didn’t sign anything. If they didn’t sign anything and they can prove that they did contribute to that song, that gives them an equal ownership share, which means they have control over that song. That’s scary.”
The misconception of using someone else’s tracks in your song
It’s unfortunately widely assumed that one can use someone else’s track if it’s under three, five, or some other number of seconds. That isn’t true at all, and Jay explained why.
“In a case called Bridgeport Music v. Dimension Films (6th Cir. 2005), which dealt with an N.W.A. song, ‘100 Miles and Runnin,’ that contains a three-second sample of a Funkadelic song ‘Get Off Your Ass and Jam,’ the court expressly rejected a de minimis defense (the taking is so small that it is legally insignificant - like if you stole a blade of grass from my front yard) for sound recordings and held that unlicensed sampling is copyright infringement,” states Jay in the aforementioned copyright misconceptions article.
This goes for the argument of “I’m not making money off of it.”
Remember, a copyright is someone’s property, just like your car is your property. “I took my neighbor’s car without asking them or getting their approval, and got groceries. I didn’t make any money!” wouldn’t hold up in court. That’s still grand theft auto. “There’s no hard and fast rule in the law that says you can take X amount of a sound recording,” mentions Jay. “That’s just not there. That is an urban legend. If you take any amount of a sound recording, you could be sued.”
Copyright infringement can be incredibly detrimental to your career and bank account. “If you sue somebody for infringement, your potential award of damages is up to $150,000 per act of infringement,” states Jay. “You can have your attorney’s fees and court costs paid for by the person who infringed. You can even have customs seize infringing goods at the border and impound them. It’s serious!”
Don’t sweat it, though. There are legal ways where you can get permission from the copyright holder to use their sample/song. It’s slightly easier to get permission if the song isn’t signed to a label and has been released independently through the artist themselves because you can simply ask them. However, this is a good idea to have this approval of use in writing (seek an attorney) to ensure that the artist doesn’t backpedal on you later on. “An exclusive license or an assignment (which means a sale of the copyright as opposed to a license, which is just permission to use) must be in writing and must be signed,” says Jay. “If not, the court will treat it like a non-exclusive license.”
If the track has been released through a label, for example, then you might have to do some digging to find out who the copyright owner is. When music is released through a label, there are often a few copyright owners: one for the melody and/or lyrics, and one from the label for the use of the sound recording.
Just because an artist’s name is on the track does not mean they’re the copyright holder, either. Jay adds that the “easiest way is to search the Copyright Office or search ASCAP or BMI’s repertoire.”
Who can claim rights and royalties for tracks?
Anybody. People who have no affiliation with the music clearly won’t be able to claim rights, but those who had the slightest affiliation can and may.
Mixing and mastering engineers are some that may want a share of the royalties. Can they? Well, “they can always ask,” states Jay. “The threshold is whatever you agree to. There are some who do, and some who do not. In some situations, the [mix engineer] will say they want this much money and a percentage.”
This sounds like it can be a good deal, and some artists may jump at this. If you don’t have a handful of money upfront, you can offer them a percentage on the backend when the royalties start coming in. Keep in mind, however, that this means you’re going to have to do your accounting. “You’ll have to give them a statement, usually twice a year, that shows all of the money that was made on the track and their percentage,” says Jay.
It’s good to note that the percentage as to how the royalties are split between the engineers and those you’ve agreed with should be handled by a lawyer. The wording of this information with the agreements is very important. For example, you may have an “agreement” that you and the collaborators wrote that states, “John and Samantha will receive 25% of royalties.” What royalties, though? Mechanical? Performance? When are these paid out? How often? Does this include the whole album or just the song they collaborated on? These gray areas need to be shaded in, and an attorney can certainly assist with this.
In addition to who’s getting what percentage of the royalties, you should have the deliverables in your contract. This ensures that you and your engineers are on the same page and are expecting the same deliverables from each other. For example, you could have one 16-bit, 44.1kHz WAV file and a 320kbps MP3 file.
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The Music Modernization Act - and why its passing is a positive legislation for the music industry
The Music Modernization Act was a major discussion up until its signing into law by President Trump in October of 2018. “They’re trying to bring copyright law up to speed with reality,” states Jay. “The law moves very slowly. Technology moves very quickly. This inherently creates problems.”
Streaming compensation is pitiful. It’s horrendous. According to Digital Music News, “Last year, [Spotify] paid out $0.0038 per play. Not much has changed this year. With a reported 51.51% market share in the US, Spotify pays $0.00397 per stream.”
The Music Modernization Act is out to clean up some of the mess in the royalties world, too. First and foremost, artists are different than songwriters. The term can be used interchangeably, but they are very different. An artist is the one who performs the song. The songwriter, well, writes the song. The songwriter can also be an artist, but the difference between the two is important, especially when you’re calculating royalties for radio plays.
When a song is played on the radio, it’s considered a public performance. The revenue generated from these plays is called performance royalties, which are collected by PROs (ASCAP, BMI, or SESAC in the US) for songwriters. Radio airplay does not pay royalties to the performers or the sound recording (also called the master recording) owners.
You don’t need a label to be successful
There are a lot of musicians and artists that believe they need to sign to a label to see any kind of results and success. Fortunately, this isn’t the truth. It’s far from it, in fact. There are a few labels that can increase your success, but there are some (it’s usually the bigger labels) that will have you sign an exclusive deal and won’t even release your music. “I have clients who are adamantly against signing to a label and they’re doing very well,” says Jay.
An exclusive deal means that they have you exclusively and you can’t release your music anywhere else while bound to that contract. Within that contract you may have to write three to five albums - that may get shelved. Yes, shelved, meaning that you’ll spend countless hours on writing an album or two only to have the label put it right on the shelf. It won’t see a release or any royalties. “Usually in these contracts they’re not obligated to release anything you do,” states Jay. “They’re not even obligated to send you into the studio. I’ve seen it happen where someone signed to a major label and shelved them. They didn’t even send them into the studio.”
There are certain elements that you need to be cautious of if you do end up signing to a label. One of the main things you’re probably concerned about would be how you’re getting paid. How much is the label taking of the royalties? Did you receive an advance? If so, then how is that advance being recouped? Is the label claiming outside monies from revenue streams like merch and touring? Additionally, are you having a CPA audit the label’s books and records?
“Your contract has to say that you have the right to audit [the label’s] books and records,” says Jay. “If the label or whoever drafted that contract knows what they’re doing, it will say that you must hire a CPA to examine their books records, and that you can only do it, at most, once per year. If that’s not in your contract, you can’t force them to open their books to you unless or until you sue them.” Ouch.
Owning your album artwork
Similar to your music, album artwork is, obviously, art. Therefore, there’s a copyright involved. Just because you’ve paid the graphic designer (who could even be your best friend) for the art, that doesn’t mean that you own the work. To own the copyright for a work, you must have it in writing. This is called an assignment, and it must be done in writing. “Copyrights aren’t like other forms of property,” says Jay. “For copyrights it has to be in writing, it has to be signed, and you have to use the proper words or you don’t actually own it. You didn’t buy the rights to the artwork. You just bought the right to use it, which is completely different.”
Why you should federally register your copyright with the US Copyright Office
As mentioned earlier in the article, a copyright is active as soon as your art is made tangible. For example, if you write a song and sell the sheet music, your song is still copyrighted. It’s just not federally registered until you do the paperwork. As the copyright owner you have five fundamental rights: distribute, display, reproduce, perform, and derive the work. When you federally copyright your work, you’re sharing the music with the federal government. This proves that you do, in fact, own this work and aren’t just claiming it’s yours.
“The point in registering your copyright with the copyright office is that it gives you an entire arsenal of weapons to protect your work, and it’s what you need,” says Jay.
Remember, there is no such thing as the “poor man’s copyright.” This doesn’t exist, and it won’t hold up in court should legal matters arise. “People often mistakenly think this is a substitute for registering their copyrights with the U.S. Copyright Office,” says Jay in the Top 5 Copyright Misconceptions About Music Copyrights article. “It’s not. It literally gives you nothing but mail. Why? Because if I mail myself an empty, unsealed envelope today, it will go through the postal system and return to me with a postmark. Still empty. Still unsealed.”
You can federally register your copyright with the United States government here.
What can I do if I find someone using my track without my permission?
If you determine that someone is using your track/music/sample, etc., without your permission, you have a few options. One of them is to demand that they cease use immediately. Sometimes a stern verbal warning will do the trick. However, your next step is to mail them a cease and desist letter. This is a letter that is typed up by a lawyer and demands the infringer to stop using the track immediately or legal action will ensue. This usually includes the fines that are associated with copyright infringement: Up to $250,000 per act of infringement and/or up to 10 years in prison.
Rights and protections with your merchandise
“You want to make sure of some of the things that we’ve been talking,” says Jay. “You want to make sure that whoever’s creating and designing this stuff is signing contracts and that everything’s cleared so you don’t get sued.”
In addition, you’re also going to want to make sure that the merchandise you’re selling and importing meets the Consumer Product Safety Commission’s minimums. “You want to make sure the company you’re using is legit and on the up-and-up,” says Jay. “If they’re not, that’s your liability. You also want to make sure that you’re not infringing anyone else’s trademarks.”
What’s the difference between a synch and mechanical license?
Just because you can’t use someone else’s music without their permission doesn’t mean that you can’t use their music at all. You have to go about it legally, and this can be done through synch and mechanical licenses. What’s the difference between the two?
A synchronization license (also called a sync license for short) is used when you’re syncing music with audio-visual mediums. This includes movies and video games. According to The Balance Careers, “A [sync license] is a music license granted by the owner or composer of a particular piece of work. The license allows the licensee or purchases the right to use the music in a visual piece, such as a movie, video game, or commercial.”
A mechanical license, on the other hand, “grants the rights to reproduce and distribute copyrighted musical compositions (songs) on CDs, records, tapes, ringtones, permanent digital downloads, interactive streams, and other digital configurations supporting various business models, including locker-based music services and bundled music offerings,” states the Harry Fox Agency.
“The cool thing about mechanicals is that in the United States we have a rate set by Congress, so you don’t even have to negotiate it because it’s already figured out,” says Jay. “It’s $0.091 per copy distributed.” There are a few exceptions to the mechanical license, though. First, you can’t force someone get a license from you if you haven’t released the original yourself. “It has to be released to the public for sale, lending, lease, or gift,” adds Jay.
Touring is one of the prime revenue streams for musicians
When you’re touring, you generally want to start building your fan base in your hometown. Get really good and known within your community and then begin to expand. If you’re really good, then this expansion into neighboring towns and cities will be natural. The reason for this is so you can perfect your craft, learn what works and doesn’t work, and get better with time. “For some people, they tour better than they do at home,” says Jay. “It’s weird, but those are the outliers.”
“If you haven’t toured before you have to hitch a ride on someone else’s star,” says Jay. “There’s nothing wrong with that, especially if your music is complementing the headliner’s music. You do want to be different and have a different style.”
When you’re opening for a band, artist, or group that matches your vibe and style, then you need to rock out hard to make a lasting impression on the crowd. You are the opening act and will set the tone for the rest of the evening. Also, when you’re up on stage, mention to the crowd how fans can follow you and hear more about your music. Mention that you have merch in the back corner. Tell them you’re doing a ticket giveaway. Tell them to post them dancing on Twitter to get a retweet. Creating engagement with fans and future fans who will support your livelihood in creating music is most certainly one of the best things an artist can do for their career.