You've all
heard the expression, "Don't give up your publishing."
Stories of Paul McCartney getting out-bid to the rights of
his own songs by Michael Jackson serve as reinforcement. And
now that you or your band is faced with the decision whether
to relinquish some of your rights and large share of income
to a music library, you're in a state of panic.
What are your legal rights? What are music libraries anyway?
And what are the deals they typically offer—and why?
Read on.
YOUR LEGAL RIGHTS
When an original song idea is transformed into a "fixed"
form (this can be your music and lyric recorded on a small
hand-held recorder) a copyright is formed. In essence, as
soon as you create a song, you create a copyright. It's that
easy.
A copyright grants the author/owner an exclusive bundle of
rights: the rights to re-produce, perform, distribute with
the intent to sell, and create a "derivative" (i.e.,
a work based on the original song). If so desired, you could
sit around creating copyrights for days only to lock them
up in a drawer, never to be used. This would hardly be the
most efficient way to spend your time, but it's your right!
When you create a copyright, you not only inherit the rights
as the author and owner, but also the rights as the music
publisher (that is, until you decide give-up these rights
to another music publisher). I bet you didn't know that.
In fact, when you publish your music by making it available
to the public by sale or other means, the monies taken in
are traditionally divided into two separate and equal categories:
the "writer's share" and the "publisher's share".
So, if one dollar is earned, 50 cents goes to the writer (which
is you), and 50 cents goes to the publisher (which is also
you). If this sounds absolutely crazy, it gets crazier.
The publisher takes on the responsibilities of copyright ownership,
which includes finding uses for your songs, collecting generated
incomes, and paying the writer's their shares. It's like having
dual personalities making good use of both sides of the brain;
the right side or creative side is the writer, and the left
side or analytical side is the music publisher—but there's
still one brain!
But aren't there other professionals who can take on some
of the publishing responsibilities for you like getting your
songs placed? After all, this takes a lot of work.
Well, if you or your band has the right type of songs and
recordings, music libraries just might be the type of company
to help you.
WHAT ARE MUSIC LIBRARIES?
Music libraries are just like public libraries in your hometown.
But rather than shelves of almost any book, most music libraries
have almost every type of music (songs and instrumental tracks)
imaginable: Latin, Jazz, Hip-hop, Hawaiian, New Age, Rock,
Pop, and so much more. Artists and bands just like you supply
a good portion of this music.
Advertising agencies, film directors, television supervisors,
corporations, game companies, and other "music users"
look to music libraries in hopes of finding "that perfect
piece of music" for a specific job or need. Sometimes
music libraries will even contract musicians under a "work
for hire" condition to compose and produce—in as
little as one day—exactly what the client needs. That's
pretty impressive!
The happier the music library makes its clients, the stronger
the level of trust. With trust—there comes referrals.
And eventually, when a major network show like Lost is looking
for a piece of music, they automatically turn to an established
company like Associated Production Music, Magatrax, killer
Tracks, or Opus1 Music Library.
Says the Vice President of Film and T.V. at a major music
library in Los Angeles, "These reputations aren't built
in day. They can take years." For the aspiring songwriter,
solo artist, or band who wants to get ahead and get noticed,
a few placements in a film or television show can get the
ball rolling. A music library just might be the company that
matches your music with the client—and everyone wins.
SO WHAT'S THE DEAL?
There are different deals for different people and situations.
Says another representative from a major music library, "Not
all deals are the same, but most music libraries structure
their deals 50/50."
This means that you retain your "writer's share"
of a composition (or 50 percent of the earnings), and the
music library takes over the "publisher's share"
(the other 50 percent of the earnings).
The types of income you make could include up-front negotiated
synchronization ("synch") fees (for the rights to
synch music with visual images), and a master-use fee (for
the rights to use the master recordings of a song). Furthermore,
you could earn "back-end" performance royalties
paid to you directly by your affiliated performing rights
organization: ASCAP, BMI, SESAC (for the public performance
of your compositions—in television and also in films
aired in foreign territories—after your song has been
broadcast.)
The music library could hold the "exclusive" right
to license your songs for audio-visual uses for a term of
one to five years, with the rights reverting back to you after
the term. This means that during the term, you or another
music library (or any company for that matter) cannot license
the song for any audio-visual use specified in your contract.
This is the type of deal that artists and bands are reluctant
since their rights are somewhat tied up. But note you usually
can use the song on your own CD and collect royalties from
sales if such is negotiated.
Non-exclusive deals are also possible, meaning there are
generally no limits to the licenses you generate.
These are the deals bands want to negotiate for. But in case
you're wondering how two different companies can use the same
song and collect its share of performance royalties from its
affiliated PRO, music libraries have adapted the practice
of "renaming" (yes I mean re-titling) your work
to differentiate it from the placements you get. The song
is exactly the same as the original since no melodic or lyric
content is changed, but the library will nonetheless treat
it as a "derivative" work of the original. It is
this derivative work in which the library acquires its rights.
EVERYTHING COMES WITH A PRICE
If all this talk about percentages and giving up some publishing
rights to a music library still has you a bit perturbed, the
following points may offer some relief:
1) Music libraries are businesses just like any other. Their
reputation, industry contacts, and time and effort used toward
getting you placements comes at a premium—that is the
right to license your songs and collect their share of royalties
for the uses they get you.
2) Music libraries don't want to be put in direct competition
with other music libraries that could be pitching your songs
into the same T.V shows or films. Having the exclusive rights
to license your music gives them more control from this happening.
3) Music libraries sustain their businesses significantly
through licensing your songs and master recordings, and the
performance royalties paid directly by its P.R.O(s). This
in part serves as its incentive for pushing your songs.
SUMMING IT ALL UP: 50 PERCENT OF SOMETHING
Music libraries offer you the opportunity to get your music
placed and to make a few bucks. The right placement in a TV
commercial, film, movie trailer, and video game might even
draw some attention toward your career as a solo artist or
band and that big hit you have locked away in "your drawer."
One representative at a small but very successful boutique
library offers these simple words of wisdom: "If you're
a new artist who's having a difficult time getting your music
heard, music libraries can offer you an outlet. Fifty percent
of something is infinitely better than 100 percent of nothing."
He continues, "The best part about working with a music
library or smaller publisher that focuses on Visual Media
placements is that it requires no additional effort on your
part. Your song and recording are already done. The rest is
up to us. It's like a putting your own marketing team to work
for you."
Note: Stay tuned for a new trend where companies who
act as "song pluggers" arrange "non-exclusive"
deals with writers. Like other non-exclusive deals, the song
plugger retitles the work and collects performances, only
he does not treat the retitled work as a derivative and does
not acquire ownership in such derivative. This is probably
as "writer friendly" as it gets ladies and gents.
Liked what you read? Read "The Musician's Handbook:
A Practical Guide To Understanding The Music Business"
(Billboard Books). Log onto author Bobby Borg's site at www.bobbyborg.com/store.
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