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by Jeffrey & Todd Brabec
WHO OWNS THE COPYRIGHT
If a share of the copyright ownership is negotiated as part
of the deal, the publisher of the new song will transfer a
portion of the copyright (from 5% to 75% and sometimes 100%)
to the publisher of the sampled composition. Also, the names
of the songwriters who wrote the sampled composition will
be added as writers of the new song and will receive credit
on all uses of the new composition.
Under this type of deal, the music publisher and the writers
of old song will receive a portion of all money made by the
new version whether it's from CD sales, film and television
uses, downloads, streams, commercials, print, radio performances
or any other commercial exploitation of the new song.
For example, if the new song containing the old song or record
sample, is licensed for use over the opening credits to a
major motion picture, the publisher and songwriter of the
sampled song would not only receive a portion of the synchronization
and video buyout fee negotiated for the use, but would also
receive their proportionate share of all income generated
from all other uses generated by the film (e.g., mechanical
royalties from sales of the soundtrack album or soundtrack
single, performance royalties for radio and television performances
of the song from the film, foreign theatre royalties, advertising
commercial fees, sheet music and folio uses, CD-ROM and interactive
media, downloads, streams, lyric reprints in novels, karaoke,
etc.). The movie screen credit for the new composition (which
appears usually in the closing credits) will also mention
the original songwriter and publisher of the original song.
CD, TAPE AND RECORD SALES
(MECHANICAL ROYATLIES)
The music publisher of the sampled song can grant the owner
of the new composition a worldwide license to use the sampled
composition for an agreed-upon share of the mechanical royalties
generated by sales of CDs, tapes and other audio configurations
containing the new composition. Under this deal the publisher
and writer of the sampled composition normally receive from
5% to 75% of the royalties generated by the new song but these
percentages can be higher or lower depending on the facts
of each particular case.
CONTROLLED COMPOSITION CLAUSE
In some cases, the writer and music publisher of the sampled
composition will, in the case where the new sampling writer
is either a recording artist or record producer, agree to
be bound by the terms of the controlled composition clause
of the recording artist or record production agreement. This
clause is the one that usually reduces the amount of the songwriter's
and music publisher's mechanical royalties that are paid by
the record company to the recording artist/writer for songs
that are on an album.
For example: if the sampling writer–artist (the new artist)
has agreed in his or her recording contract to a 75% mechanical
rate for all CDs and tapes sold in the United States, the
music publisher of the sampled composition (the old song)
may also agree that its share of royalties will be calculated
on the same reduced rate.
In many cases, however, the publisher of the sampled composition
(the old song) will demand that its share of royalties be
based on the statutory mechanical rate regardless of the reduced
controlled composition rate agreed to by the recording artist
or producer who has used the old song. This type of deal is
very common and can have a very significant negative impact
on the royalties due the writers and publishers of the new
song.
PERFORMANCE INCOME (Radio, Television, etc.)
As to performance income, the performance rights organizations
will follow the ownership and payment percentages agreed to
in the sampling agreement and will pay accordingly. Considering
that songs can generate worldwide performance earnings in
the millions of dollars, this area can be a gold mine for
sampled compositions.
© 2001 Jeff Brabec, Todd
Brabec.
This article is based on information contained in the new,
revised paperback edition of the book "Music, Money, And Success:
The Insider's Guide To Making Money In The Music Industry"
written by Jeffrey Brabec and Todd Brabec (Published by Schirmer
Trade Books/Music Sales/435 pages). Click
Here to buy this book.
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