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.
Recently, we received a letter from a talented singer/songwriter named Stella, who asked if we would address some issues important to "unpublished" songwriters. In listening to her performances and songs, it would not be a surprise if based upon her natural talent, focus and tenacity, that this artist may see her songs published and recorded by others in the near future. She could be her own publisher by taking necessary steps to set up her own publishing company. As in the case of super pop writers like Diane Warren, setting up one's own publishing company can be the single most important decision of your career, that is after writing of the songs themselves. However, for the publishing company to mean something, someone, somewhere, has to sing the song and use the song for something. While releasing a record the most common exploitation of the work, songs can be written and recorded for a variety of uses, theme songs, commercials, theatrical performances, live revues, leading to further exploitation in print music. Invariably, to make money in publishing, you want to collect revenues from as many appropriate uses (licenses) as possible.
In the record business, of course, you need to sell "sound recordings" of the songs, which are found today on CD's, tapes, occasional "vinyl" and other "copies" of performances of the song, which as almost everyone knows, are starting to be distributed by interactive multi-media on your favorite web sites.
In the early part of this century, performances of songs were distributed on then-modern "mechanical" contrivances such as piano rolls, as well as written copies of the song by sheet music, as is still done today. Back then, so many homes had a piano as the entertainment center in their homes, where people could "make their own music" playing favorite tunes read from widely distributed popular sheet music. (In those years, you could buy sheet music at Woolworth's, the Walmart of an earlier time.)
Later with the popularity of radio, electrically reproduced 78 rpm records became extremely popular, followed by the 33 1/3 LP (long play album), and then the 45 rpm "single" and the more recent stereo LP's made of vinyl. A little later, stereo reel-to-reel audio tapes, 8-tracks, used extensively in automobiles, and eventually cassette tapes, still popular, became the state of miniaturized, hi-fidelity stereo long play albums. Today we have electronic digital reproduction of sound recordings with CD's, mini discs, DAT's, and as we speak, music is beginning to be distributed through interactive multi-media sight and sound devices.
This background orientation is offered to demonstrate that through decades of invention beginning with mechanical piano rolls (hence an origin of the term "mechanical license" in the record industry), the song, and print music of the song, remain fundamental no matter what the advances in duplication, distribution and technology. As an unpublished songwriter looking for publishers, and ideally becoming a self-publisher of successful copyrights, let's consider some of Stella's fundamental questions. In future articles, we'll continue our discussion of songwriters and publishing.
Q: When a Songwriter Receives a Publishing Contract should he/she consult an entertainment attorney?
A: By all means. In too many cases, a publisher will send you a "cookie cutter" contract enclosed with a form letter requiring you to part with ownership of your song for no consideration paid up front, but what is worse, there is no obligation imposed on the publisher to do anything whatsoever for you. If you are lucky, there may be "reversion" clause that says the song can revert to you after three years or so if the publisher does not place the song. Well three years is better than losing the song forever, or for ten years, it is true, but how does the song revert back to you? Do you have to do anything? Do you need the publisher to assign it back? Are termination and reversion an automatic process? Too many variables. Best to consult an attorney before you sign your name to anything. You are now on the road to learning. But you need not learn from mistakes. Start finding books and articles that teach you to ask the right questions. Learn what you are about so you can better understand what a professional adviser can provide. The more you study and inquire, the more you will know how to find and follow sound legal and business advice, so that your transition from naive amateur to informed professional is a smooth one.
Q: What should the songwriter expect from the attorney?
A: If you do not already know the concepts of publishing, the attorney will start directing you to, and teaching you about, what you need to know about publishing and songwriting, including, by way of example, the relationship of the songwriter to the publisher, what publishers (should), or might not, do for you. You will learn about ownership concepts, such as copyright matters, assignment of publishing rights, and the different kinds of publishing licenses. You will begin to learn about what copyrights in underlying compositions are, and what sound recording copyrights are. A resourceful, supportive attorney will speak to you about different sources of song income, as well as innovative ways to promote your career and protect your songs along the way. You have to know the right time to give up some of your rights in exchange for moving your career to the next level, and when to retain all of your rights for the correct business reasons. In the most simple explanation, the attorney can show you how to get from point A to point B. Keep in mind, some attorneys are more inclined to provide "transactional" assistance, meaning you bring them the contract, they will negotiate it. However, since you are creative people, we suggest you look for the attorney who can not only handle the transaction, but help guide you to create important relationships and develop your creative awareness and musical "point of view". This is more in the artist development side, and unfortunately this types of attorney, a creative professional, is harder to find. But they are out there and can make all of the difference to your success.
Q: What Does the Attorney Expect from the Songwriter?
A: Probably the most an attorney can ask of a songwriter client is cooperation, evidence of professional and artistic growth, maturity, and fair compensation for the services rendered and guidance and support which is provided. However, there is no standard. You can create your own special relationship where you feel comfortable. Just do not waste each other's time, and remember to show mutual respect. It can be a great relationship where everybody wins.
Q: How Can the Songwriter Investigate the Publishing Companies?
A: Make sure you get the guidance we discussed from your own attorney. (Even if you have a manager, this does not mean or should ever mean that you do not need your own attorney.) Ask the attorney the question being posed. There are a number of ways to acquire more background on a publisher. Ask the company to send their information. Ask for referrals. Contact the performance societies. Ask contacts that you may have in the business. Start your investigation, and one question will lead to another, and you will have more answers. An attorney can learn a lot just by reading the correspondence from the publisher and by reviewing the quality and content of how the contract is presented. Notice we have not even gotten to actual discussion or negotiation with the publisher. Each step in the investigation reveals a lot. The wise approach will be to rule out the wrong publishers as early and inexpensively as possible. You need not bother getting into negotiations with the wrong publisher if their presentation is not for you. Remember, receiving a contract to "give away" your song without any other conditions except speculation will probably make you later regret giving up your earliest compositions to the wrong publisher. Furthermore, being offered a contract by a publisher who will do nothing for you or your song will not make you a better songwriter (only a "bitter" one).
Q: How Can the Songwriter Learn to Read and Negotiate a Contract?
A: It is not recommended that you learn to "negotiate" a contract. It would not hurt however to understand how to "read through" a contract. But keep in mind there are many variations of contractual agreements. Single Popular Song Contract, Exclusive Songwriter Agreement, Work for Hire Agreement, Co-Publishing agreement, Administration Agreement, synchronization license, mechanical license, "permission to record a demo only," and many other variations. Let's not forget about "collaboration agreements," where you begin writing songs with others. Better to concentrate on learning to write, don't you think, and leave the legal work to the business affairs department. You certainly can learn a lot on your own, but you will be fine just developing a greater business awareness. (Once you become successful at your craft, you have plenty of time to become more shrewd. But never try to be too shrewd without professional advice.) To learn about the contracts,. you can ask your attorney to guide you through a professional quality contract. There are numerous books to be read and articles in songwriter oriented publications. Once you start reading different books and recognizing the same clauses and subject matter, that is an indication that you have started to cover the surface of the main body of information, but certainly not that you have mastered it. You can learn a lot about business by reading Billboard and following articles about publishers. If you do not understand the article, ask someone to explain its meaning. Go to seminars and join local songwriter groups. Take classes in business law and about the music business. Get reputable music business courses on tape. There are so many places to increase your awareness. Most importantly, maintain a relationship with the right attorney adviser. This may require a financial investment to get the attention, but your knowledge and your awareness will grow indispensable and your adviser will become a major member of your success team. Don't get stuck with the kind of myths and shadows that tell you to send your songs to yourself in the mail! Above all, remember to grow creatively. Your are a songwriter, not a lawyer. Focus on what is important and what is your calling. Let someone else help you to move from Point A to Point B, and show you how to begin thinking like a professional.
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Robert Rosenblatt
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or email to legal@soloperformer.com.
© Copyright 1997 Robert Rosenblatt
