New website focuses on promotion of musicians

I was recently contacted by John Dargan, a Florida-based computer programmer who is also the webmaster for a new music-related web site called www.Nurturemusic.biz.  The concept of the site is simple, and somewhat unique:  it is a “slide show” of publicity photographs of various musicians, artists, bands and related music industry professionals.  Dargan finds musicians to be fascinating people, so he founded the site this past March with a goal of providing a marketing avenue for talented musicians allowing them to attract a wider audience.  So far, the site has engendered  an enthusiastic response from both the musicians and their fans.

To obtain the content, Dargan scours MySpace and other websites looking for musicians, artists and bands that have both great publicity photos and an apparent talent for music.  Dargan works hard to ferret out the best photos and the most promising musicians.

“It’s a tremendously fun hobby,” Dargan says.

A viewer arriving at the website is greeted simply with a photograph framed on the top with the site’s logo, a navigation bar, and the name of the artist, and on the bottom with various links and information related to the artist.  In the navigation bar, the user can move from photo to photo in the slideshow or learn more about the artists by clicking on one of the links or directly on the displayed image, which is generally hyperlinked to the musician’s website, MySpace page or the CDBaby location offering the musician’s CD for sale. In this way, Dragan hopes to drive web traffic to the commercial sites of the musicians.

In addition to providing free publicity to the musicians, the site provides credit to the professional photographers who took created some of the images as well as a hyperlink to the photographer’s website. Dargan makes an effort to contact each professional photographers not only to seek permission, but to ask them to comment on the the photo session, asking them to describe how they decided upon the location of the shot, the best angle, or any incident associated with the session that a reader might find of interest.

The goal is to enhance the viewer’s understanding and enjoyment of the photography and to provide a more intimate glimpse into the life of the photographer and the musician. Dargan’s approach to the website is drawn from the concept of “high-tech, high-touch,” a book by John Naisbitt, which introduces the concept that technology can help bring us closer as a community.

All of Dargan’s discover efforts seem to focus on quality.  For example, he searches for photographs in which the faces are clearly visible, i.e. not hidden behind microphones or musical instruments.

I prefer eyes that are visible, not closed, nor looking away. The expression on the face provides an insight into each person's personality.

Dargan was surprise to find that a number of the photographs he chose were taken not by professional photographers, but by the artists and musicians themselves.

The key emphasis in the search for music is also on quality elements.  Dargan searches extraordinary talent and musical express. He listens for lyrics that are not only original, but have qualities and characteristics that are touching, heartfelt, plausible or engaging. 

In contrast, Dargan avoids photographs that contain disturbing elements, such as blood, or music that contains “excessive screaming or cursing.”

The music should engage the listener right away. The execution of the music should be crisp and should indicate a high level of musical skill. The quality of the instruments should be high. The vocals should be compelling and dynamic

Dargan says. 

Dargan has also been surprised by the number of extremely talented teenagers that he discovered in the plethora of musicians on MySpace and YouTube. While he generally he avoids direct contact with minors for obvious reasons, Dargan was particularly impressed with one young country singer named William Michael Morgan, so he contacted the boy’s father and obtained permission to feature William on the website.

Other examples of the talent featured on the website are

• David Bradley, a singer/songwriter who is also an oil engineer.  Bradley wrote some of his songs while stationed in the forests of Siberia and on an oil rig in the middle of the Caspian Sea.
• Colin O'Donohoe, an outstanding composer, conductor and musician who has developed hauntingly beautiful music involving wonderful instruments from the Far East.

Dargan is also sells “slots” in the slide show to attorneys and other industry professionals who specialize in the music industry.  Dargan chuckles at the thought of money trickling in from these professionals, particularly  attorneys, as Dargan, a patent-holder who has been involved in patent litigation, has sent tens of thousands of dollars to attorneys.  “Getting even a small amount of income from attorneys seems only fair to me,” he chides.

Dargan received a Bachelors degree from American University in interdisciplinary studies, and a Masters degree from Washington University in St. Louis, in Technology and Human Affairs. Dargan has one expired patent and one pending patent, both related to Touch-Tone interaction with computers, such as with text messaging. Dargan can be reached at nurturemusic@yahoo.com.

Technorati Tags: musicians,artists,entertainment,entertainers,music law,entertainment lawyer,music lawyer,entertainment attorney

"More than a Feeling" - Momma, look what they've done to my song!

I received a call from one of my readers to address the topic of whether a songwriter has the ability to restrict the use of his or her composition in the instance it is being used in advancing a cause opposite to that espoused by the songwriter.  This was spawned, of course, by the recent allegations of Tom Scholz, lead member of the group Boston, that his 1970's mega-smash "More than a Feeling" was being used by Mike Huckabee, whose views were opposite those held by Scholz.  It is an interesting inquiry, and one that has simple solutions, mostly based in contract law.

There are two contract concepts that are usually incorporated into standard music publishing agreements which impact this issue:  one is the concept of droit or moral rights and two is the restrictions on exploitation.  I'll address them in reverse order.

Grant of Rights

Typically, when a songwriter assigns his copyright in a song to a music publisher, there is grant language contained in the agreement expressly establishing the rights he or she is granting to the music publisher.  In that contract language, there is typically a clause that reads something like this:

The Publisher shall have the right to administer, use and exploit all interests in the Compositions . . . provided, however, that the approval of Writer shall be required for the use of any Composition:

             (i)    in any motion picture which Publisher has actual knowledge of an "X" or equivalent rating; 

             (ii)    in any advertisement or other promotion for  tobacco, firearms or personal hygiene products; or

             (iii)    in connection with religious or political purposes.

As you can plainly see, in this instance at least, the music publisher would be contractually required to obtain the approval of the writer prior to authorizing the use of the composition in a political rally, among other things. 

If this type of language is not included in the songwriter agreement, or if the grant language included in the songwriter's agreement is, in general, more broadly worded, then the rights of the songwriter to restrict the use of the song would be greatly impaired.

Droit or Moral Rights

The other legal concept which comes in to play, both from an historic perspective and contractually, is the concept of droit or "moral" rights, although it is important to realize up front that this concept is most often applied, in the U.S. at least, to works of visual art, not musical compositions. 

First, in connection to the copyright concept, don't infuse the the word "moral" with the ethical connotations generally associated with in in the United States.  The use in this concept is much more in the sense of an embodiment of a type of something, i.e., the Monet painting is the moral equivalent of impressionist art.  As used in this sense, it refers to the ability of the creator of a copyright to control the "embodiment" of his work, or its "integrity."  The French-derived word "Droit" is, perhaps, more to the point when discussing copyright:  it means "a legal right." 

So, in the United States at least, the phrase "droit" or "moral rights" generally refers to the right of the copyright creator to prevent third parties from taking credit for, revising, altering, or distorting his or her creation, regardless of who owns the work, i.e., regardless of whether the copyright has been assigned or transferred. 

In contrast, the concept has generally received much broader application in European states.  France, for example, recognizes four moral rights: 

1. the right of disclosure;
2. the right to correct or withdraw works previously disclosed to the public;
3. the right of attribution; and
4. the right of integrity (the right to "respect" the work).

When the U.S. joined the Berne Convention, Congress attempted to bring its copyright laws into line with those of the other signatory companies by passing Visual Artists Rights Act of 1990 (VARA) codified generally at 17 U.S.C. §§106, 106A, and 113.   As implied earlier, however, this statute applies solely to visual arts and not musical compositions.  Nonetheless, the concept of droit or moral rights may be invoked when dealing with the misappropriation of a songwriter's musical composition.

In addition to copyright law, there a several other legal concepts which may be implicated in this situation.  For example, if a person is somehow giving false attribution to a creative work, e.g., attempting to pass off an creator's work as his or her own, that person may be liable under the concept of "unfair competition," which is barred by the Lanham Act (15 U.S.C. §1051).  Or, if the creation is widely recognized as a work of the creator, any distortion or alteration of the creation may constitute trademark "dilution" under trade dress laws and statutes.   More generally, if authorship of a work is somehow falsely attributed, the creator may have a state action for defamation against the person responsible for the false attribution.  If a person uses the identity of an songwriter, or the compositions, for his or her own benefit without permission, a violation the songwriter's right of publicity may have occurred.  Thus, there may be several remedies available in this type of situation.

In the US, however, it is accepted practice that if a person can waive a right, such a waiver will be in a contract.  This is no exception.  Again, there is language in most songwriting agreements which "waives all droit or moral rights" in the copyright.  Such a waiver would likely nullify any of these general legal remedies available to the songwriter.

As always, I highly recommend that any songwriter contemplating a deal with a music publisher contact a reputable entertainment attorney.

Technorati Tags: More than a Feeling,Tom Schulz,Boston,70's Rock,Copyright Infringement,Music Publishing,Songwriters,Songwriting,Music Lawyer,Copyright law,Droit Rights,Moral Rights

Music Publishing 101, Part 4: Show me the money!

Section 106 of the Copyright Act gives the owner of a copyright a bundle of rights which includes the rights to 1) reproduce the work, 2) prepare derivative works, 3) distribute copies of the works, 4) publicly perform the work and 5) publicly display the work.  All of the music publisher's income flows from this basic bundle of rights.  It should be noted that the right to perform the work is sometimes segmented into two descriptions, one called the grand rights, or dramatic and theatrical performances of the work, and small rights, or all public performances other than theatrical, including live performances of the work and radio broadcasts.  Here is New York attorney, Peter Shukat discussing grand rights:

To exercise control over these rights, a music publisher issues licenses to authorize various uses falling into this bundle of rights.  For example, if a company wants to reproduce and distribute a copyright in a musical composition, the publisher will issue a mechanical license to a record label, for example.  Mechanical royalties are a primary source of income for music publishers.  In the United States, the U.S. Copyright Office sets the rate for mechanical royalties, which is currently 9.1 cents for songs that are 5 minutes or less, and 1.75 cents per minute for songs exceeding 5 minutes.  The current mechanical royalty and historical rates can be found at the Harry Fox Agency's website.  The Harry Fox Agency administers licenses for, and collects and distributes royalties to its member of the National Music Publishers Association, although a music publisher can, and often does, perform this task on its own  Since the rate is always subject to increase,  a music publisher should also request language in the license that provides that payment is made at the rate in effect at the time the product is distributed.

Another major source of income for music publishers is public performance royalties.  in the United States, these royalties are almost always collected by the three major performance rights organizations, ASCAP, BMI & SESAC.  Outside the U.S., each country has its own performances rights organizations.  See the "Resources" page on my blog for a list of and links to many of these.  As discussed in Part 2 of this series, music publishers, as well as songwriters, affiliate with (i.e., enter into an agreement with) the performance rights organization to enable them to track airplay and live performances, and collect and distribute the royalties.  Performance rights organizations issues "blanket" licenses to radio stations, television stations, large nightclubs, large restaurant chains, and retail source so that these entities can play the music of their affiliated songwriters and publishers.  In exchange, these venues pay the performance rights organizations fees based on the anticipated usage.  The societies then use varying formulas based on such factors as airplay and usage to issue payment to its affiliate songwriters and publishers.

The music publisher issues a synchronization license to the producers of  television shows, movies and commercial advertisements for reproduction and distribution of the work.  The "sync fee" is usually a one time payment, varying from the hundreds of dollars to hundreds of thousands, dependent upon numerous factors such as the length of the segment in which the song is used, the prominence of the song in the scene (whether it is prominently featured or in the background), and whether it is the primary focus of the scene (as, for example, BTO's old song Takin' Care of Business as used in the Office Depot commercials).  The publisher typically splits this type of revenue equally with the songwriter.

A less generous source of income, but still significant nonetheless, is revenue generated by printing sheet music and lyrics.  This is a type of public display, but can also fall into the category of reproduction and distribution.  Print licenses are most commonly issued to publishers of individual sheet music (sometimes called "piano copies") and so-called "folios" (a collection of sheet music by a particular artist) and sheet music collections.  Income is also generated when lyrics to musical compositions are reprinted in a publication, such as, for example, when a book is printed in connection with a movie.  How much of this income is given to the songwriter varies widely, as it is sometimes based on percentage basis, but also can be on a flat, cent rate, e.g, 15 cents per copy.  When a percentage basis is used, it is sometime based on wholesale, sometimes retail.  The general trend among publishers in past years, however, is to split everything equally on a 50/50 basis.

Of course, one rapidly growing area of revenue is in the arena of  technology, i.e., computer software, multimedia products, singing greeting cards, DVD's and particularly ringtones.  Though these usages also involve the reproduction and distribution rights, they generally require specialized licenses and the rates a very market driven. Again, it is customary for a music publishers to split these fees equally with the songwriter.

Finally, a very significant source of income for a music publisher is foreign sub-publishing.  Outside of the U.S., music publishers solicit foreign sub-publishers on a territory by territory basis.  The arrangement is generally exclusive, meaning that the foreign publisher has the rights to exploit the music publisher's entire catalogue of songs within that territory, including the entire bundle of rights, and issue mechanical, performance, synchronization and print licenses for the usage of the music.  Typically, the U.S. publisher will receive 75% of the income generated by the foreign sub-publisher, while the sub-publisher retains 25%.  The sub-publisher does not receive any ownership interest in the copyright and usually pays the U.S. publisher a significant advance on future royalties, dependent in large part on the amount of income the catalogue has generated in the U.S.  Foreign income is often the subject of intense negotiation in writer deals, but very often a songwriter will receive half of everything the U.S. publisher receives, or 37.5 cents of the 75 cents received by the publisher.

Technorati Tags: Music Publishing,Music Lawyer,Entertainment Lawyer,Public Performance Royalties,Sychronization Fees,Licenses,Mechanical Royalties,Performance Royalties,Print License,Grand Rights,Copyright,Copyright Law,Music Business

 

Nashville's Blue Bird Cafe is a songwriting legacy

Amy Kurland's Blue Bird Cafe on Hillsboro Road in Nashville is the kind of stuff of which fairy tales are made.  Now, Kurland has left the legacy in the hands of Nashville's best songwriting organization, NSAI (Nashville Songwriters Association International) -- a fitting end a dynasty.

The legend of Blue Bird Cafe, which first opened in 1982,  is widespread. Among others, Garth Brooks and Kathy Mattea both got their record deals after playing at the Bluebird.  It was prominently featured in River Phoenix's last film, The Thing Called Love, and it also has been featured on television so often it is difficult to enumerate.  It has been the subject of books, both fiction and non-fiction.  Ask any songwriter in Nashville -- and for that matter in most parts of the country if not the world -- what venue they'd most like to play at, and the most likely answer is the Bluebird.

Although the terms of the deal are confidential, the basic deal points are that Kurland will continue to own the real estate and lease it to NSAI, and NSAI purchased the business at a price rumored to be in the low six figures.

"I couldn't think of anybody else other than [NSAI] that would have the same mission, the same love in their heart for songwriters," Kurland told the Associated Press.

The official announcement of the transfer was made before a performance by Kris Kristofferson.  The transition takes place January 1.

Technorati Tags: Nashvile , Songwriting , Songwriters , NSAI , Nashville Songwriters Association International , Music City , Music Row , Music Lawyer

Last Man Standing - collaborating with other songwriters

See Jane. 

See Jane write lyrics. 

See Dick. 

See Dick write melodies.  

See Dick meet Jane.

See Dick and Jane combine their efforts and collaborate together to write a song. 

This is one frequent story among Nashville's songwriting community.  On any given afternoon in Nashville, there will be innumerable co-writing sessions occurring at any given moment.  Those collaborative efforts certainly produce most of the top hits on the country charts.  The odds are, however, that at least 9 out of 10 of those songwriters will not know the implications of collaborating with another songwriter on the creation of a copyright. 

Rarely do songwriters consult an attorney or enter into any form of collaboration agreement prior to co-writing.  Rarer still is the songwriter that fully understands the important consequences that flow from co-writing with another songwriter. 

If a songwriter does happen to consult about this issue, the first thing I tell them is that it is very much like entering into a marriage relationship.  When two songwriters get together and collaborate on the creation of musical composition, each songwriter is a co-owner of and equal and undivided interest in the whole copyright, i.e. each songwriter co-owns 100% of the copyright - regardless of the relative extent of their respective contributions.   Ownership is not equally divided, as is commonly thought -- i.e. split 50/50 (that confusion comes from the fact that the royalties derived from the copyright are usually divided equally). 

In the Dick and Jane analogy above, for example, Jane does not separately own the lyrics and Dick separately own the melodies.  Dick effectively owns 100% of the song, including both the lyrics and music and Jane effectively owns 100% of the song, including both the lyrics and the music.  The concept is very similar to the legal principle of tenancy in common.  Unless they agree to the contrary in writing, each songwriter has the right to administer the entire copyright without consulting with the other songwriter, i.e., each songwriter may issue nonexclusive licenses to the entire copyright or issue first use licenses.  The only obligation each co-owner has to the other is to account for any profits earned by the exploitation.  A co-owner may not, however, without the permission of the other co-owner, transfer exclusive rights to use the work or transfer the entire copyright to a third party.  

To be absolutely clear, the Copyright Act does not really define "joint authors," but rather defines a "joint work" as a "work prepared by tow or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."  17 U.S.C. 101.   The key here is intention -- i.e., the parties must intend that their work be integrated or merged to form a united whole at the time the work is created.  The legislative history that accompanied the act specifically states that a work is "joint" if the authors collaborated on its creation.  See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976); S. Rep. No. 473, 94th Cong., 1st Sess. 103-104 (1975).

Take for example the circumstance that arises when a person creates a poem, which is registered as a copyright.  Then, later on, a second person takes the poem and modifies the words, adding music to create a song.  The situation described is different from the collaborative effort in that there was no intent, at the time the poem was created, to merge it with the second creative effort.  The second work, the song, is a derivative work, and its writer needs permission from the creator of the poem to create the derivative work.

While we're on the subject of derivative works, each co-owner of a joint work may create derivative works independently of each other and without the permission of the other, and, without any obligation to share the royalties derived from the exploitation of the derivative work.

Now, not to further confuse the issue but, in the eyes of the law, there is a difference between co-ownership in the copyright and split of the royalties.  To get back to the Dick and Jane analysis, the typical understanding is that Dick and Jane would split any royalties received from the exploitation of the copyright on a 50/50 basis.  It is important to understand once again, however, that this understanding can be modified with a written agreement between the co-writers.  A songwriter whose reputation is strong enough can certainly request that he or she receive a greater percentage from the royalties, and even ask for a greater percentage ownership interest in the copyright.  These types of exceptions, however, must be expressed in writing between the parties in order to be enforceable. 

Another complication arises in circumstances where a party merely contributes an "idea" to the collaborative effort.  Is that person entitled to be a co-owner?   I've had this issue arise in litigation.  Two parties are collaborating on a song and have most of the song written.  In walks a friend who is also a songwriter.  He listens to the song and contributes an idea that is incorporated into one line of the song.  He leaves, the song is finished, and becomes a hit.  Does the third songwriter have an interest in the song?  The answer to the question is inevitably determined by the particular facts and hinges on whether the third party merely contributed an idea, or actually contributed the expression of an idea. 

As a final observation, let's overlay the life of the copyright over the co-ownership of a collaborative work to give our brains a final flash fry if you will.  Assuming the work to have been created after January 1, 1976, the life of the copyright is life of the author plus 70 years.  In the event of a joint work, however, it is the life of the surviving author plus 70 years.    What this means in realty is that one of the co-writers in a successful hit song, i.e., the last man standing, will eventually become co-owners with the heirs of the deceased songwriter, either in the form of a wife or a child. 

Most songwriters, of course, are not thinking this far down the road when they make their daily co-writing appointments.  But that's the real thrust of this article.  If you're a songwriter, you should consider the possibility of a collaboration agreement.  Most songwriters, I admit, do not think about this sort of thing because it cramps the creative vibe that needs to be created in a collaborative effort.  This, in my opinion, is not a wise idea.  At the very least -- and this is not my recommendation -- the writers should have some conversation about the consequences of their efforts.  Considering the consequences, the best course of action would be to consult with qualified legal counsel and get a collaborative agreement drawn up and signed -- or at least have a written statement of intent signed by both writers  -- at some agreeable point before the co-writing session begins, so as not to interfere with the creative efforts. 

Technorati Tags: Songwriting , Music Lawyer , Music Row , Collaboration , Nashville , Music City , Copyright Law , Copyright Act of 1976 , Music Law , Entertainment Law , Entertainment Lawyer