The purpose of this column is to provide career guidance from the perspective of an entertainment lawyer. The information presented here is not intended to be legal advice nor an overview of how to write, negotiate or interpret contracts. Rather, each article addresses issues like business relationships, considerations when seeking legal advice, and in general, a "backstage" informal dialogue about the realities confronted in pursuing a career in today's music business.
In this month's contribution, I want to go over some information which should prove important to those of you involved in recording tracks of original and non-original material. In order to avoid confusion later which can divert your attention from your goals of success, it is necessary for many of you to have a better understanding about the basic business concerning recording music tracks. There are obvious similarities whether you are a solo artist or in a group, and there are also many other variations if you are in a group, producer or "investor" situation. Without anyone being exploited, it is necessary to establish who owns what and what rights exist among the parties.
This is not intended to be a detailed discussion, nor a replacement for a legal consultation, so I recommend you follow up on this information when you consult a music lawyer. However, this information should give you a check list to think about to better understand your own situation. As you will see, there are a number of variations that can exist as we look at the basic components - the song and the sound recording. This month we will begin to look at the considerations you should keep in mind about the songs you decide to record.
Choice of Material. First of all, you have to decide on what you will be recording. Today, most musical acts want to record their own material. Choice of material is a very important determination and all too often, musicians make their decisions on their own without outside guidance. This is all and good if your instincts are correct. However, especially with established artists, the choice of material is more of a collective decision, and probably the most important decision, as to which songs can be favorably reviewed, reach an audience and generate sales. It is also true that you will be spending a lot of time and the most of your budget on recording. If the song is not there, even a known producer's name may not do much good.
Original or Non-Original. This goes to choice of material, and as we said, these days most acts insist on doing only their own material. I recently met with a passionate young band, and they have a hard time justifying to themselves doing non-original material (material they did not write), since they consider their own material the only true expression of who they are as a band and individuals. In spite of their self-professed artistic integrity, in the end they are probably being short-sighted, since this has nothing to do with artistic integrity, it has to do with repertoire. Of course, they have a right to their decision, and I hope they don't get too disappointed when they see the outcome. Hopefully, they become wiser and more shrewd by the experience.
Choice or repertoire is a really big subject, and we will be looking at this phenomenon throughout future articles, since the future of many musical successes and failures may lie in the balance. The fact is you can never know enough about the art of building a repertoire. It is the engine that drives musical careers.
"Song Splits." When you choose to do original material, be very clear who wrote the song, and what the relative contributions of the joint writers are. Did one person write the lyrics and the other the music? What share of the lyrics did co-lyric writers contribute, and what share of the music portion. Once you have these contributions determined by percentage, it is best to write that down and agree to those "song splits" in writing. This should be done for each song, so there is no mistake or argument later. Whether you self publish or convey to a publisher, it will be necessary to precisely define this situation. Many a group has had internal problems arise once success starts knocking at their door, because they feel another member of the group got too much credit and they got too little or none. Sometimes, an instrumentalist helps "arrange" the song by adding a musical line or "hook" or by putting the song in the right groove. Are they arrangers or co-writers? It depends. The more professional the collaboration, the more attention that is given, since a nightmare of legal entanglements can arise because it was not made clear who owned the song, and who was hired to arrange or polish the song. They may not have been the "song writer" per se, but what was the value of their contribution? In a group situation, this is an important contribution, and if that song becomes a hit by your group or someone else, everyone who created the work will feel entitled to recognition, artistic and economic. So you must decide early on if the musical members who did not "write" the songs (bring the song to the rehearsal), nevertheless do contribute to the final work. There are differences between sideman, arranger, musical director and composer. Are you one of them, some of them, or all of them? Think about this. The distinctions become more important as you develop your career. Later on, you may have wished you put this article up on your wall back in 1996!
Collaborators who create a song are referred to as "joint-writers", and (assuming they are not "writers for hire") they will likely be joint claimants to a copyright, and duly listed on the copyright form. Although copyright forms are fairly straight-forward, they should be carefully filled out and issues such as joint authorship, writer-for-hire, arrangement and adaptation are important to understand. There are also tricks which can save you spending money registering copyrights one song at a time, such as first filing PA forms and then CA forms. I do not offer specific legal advice in my articles, since you really should consult with a lawyer when you want to get into property right issues. The law of music and copyright protection comes under what is referred to as "intellectual property". For those of you who want to know more about the business aspects, there are books which explain how to fill out copyright forms, in which case you can become more knowledgeable. However, I do not recommend you becoming do-it-yourself lawyers. Instead use the knowledge to work more effectively with a lawyer. This should keep your legal bills at a minimum, since you can do your own homework.
Next month, we will follow-up with more on the rights in songs, and we then look at issues concerning ownership of sound recordings. Look for upcoming articles on the various rights in the copyrights for songs and sound recordings. Above all remember that the song and the sound recording are two different things. Bringing that concept into focus is a major step in understanding how to become successful in the business of music.
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Robert Rosenblatt
301 West 53rd Street
New York 10019
Telephone (212) 262-2112
or email to legal@soloperformer.com.
© Copyright 1997 Robert Rosenblatt
