(Left to right) Matt Hirt, Steve Winogradsky, Jeff Gray, and Tanvi Patel during their panel at TAXI's Road Rally, 2014.
Photo by Ryan Taalb
Panelists: Matt Hirt, Steve Winogradsky, Jeff Gray, Tanvi Patel
Moderator: Michael Laskow
Matt Hirt is a highly versatile and prolific composer with about 17,000 unique published songs and instrumentals in nearly every musical style imaginable to his credit.
Steve Winogradsky has over 30 years experience as an attorney in the music industry. He is a partner in Winogradsky, Sobel in Studio City, California.
Jeff Gray is a Composer, Performer, Music Supervisor, Music Licensor/Licensee and Music Consultant.
Tanvi Patel is the CEO and 50% partner in Crucial Music Corporation.
Let’s talk about instrumentals. I’m talking about a 90-second instrumental cue that’s going to end up on reality shows. And rather than taking the same cue and putting it in five different catalogs, I’m a fan of keeping the sonic template and creating new tracks with different chord changes, tempos, and melodies. You could do variations and then put each of those in separate catalogs. Am I crazy for thinking that’s a smart way to go?
Matt: No, you’re not crazy. I personally don’t do that. But that’s just my philosophy. I want to create unique pieces of music, and when you take the template approach, which a lot of people do very successfully and it works great for them, and I don’t have a problem with it. But for me it doesn’t work, because I feel like I’m just cranking it out. I don’t like to feel like I’m cranking out stuff. I like to write pieces of music that I actually like and that I would listen to and I don’t have to be ashamed of and go, “Oh, it’s just for this cheap reality show.” I just don’t do that personally. So I create copyrights that are very unique. So that’s what I do. I’d rather write less music, and rather than just giving everybody something, I just try to find the companies that are really working for me. You have to also understand that some companies are better with some musical styles, for example. So you might have a music style that they are really, really good at and then they make you a lot of money. Or you might have the music style that this particular company isn’t known for in the industry, but they want to have it too, and so then when you end of being in sort of a marginal area of their company and you might not make a lot of money. It’s difficult to find out who’s gonna make you the money, other than just getting your feet wet and trying it out. Give the company a few tracks and see what they do.
Tanvi: Can I bring up something? You’re talking about cloning, but you’re talking about cloning of your own track. I want to talk about cloning or...sound-a-likes. Obviously we tag everything in our catalog; it sounds like this artist or that artist, and we run TAXI listings where we want music that’s in a specific style. But the last thing on earth I want is a knock-off. It kills me when I get a knock-off and it’s a great song and I cannot identify the melody that they are trying to knock off. But I know it’s dangerous, and eventually I will find it and then I’ll have to pull it from the catalog.
Jeff: I have found it, I’ve identified it, and they didn’t pull it, and they still use it. I’m always amazed at that! You know, I had to vet a lot of shows while doing clearance work, and they’d send me the show and I hear the library tracks and I’m like, “Holy crap, that bridge is the exact bridge of [a particular] song.” And I bring it to people’s attention, and I bring it to the library’s attention, and they’re like, “Whatever.”
“If we were gonna make a case for sound, Chuck Berry would be living in Keith Richards’ house.”
Tanvi: No, I pull it immediately, and it’s a pain in my ass to do it. I hate doing it. I have four people in my office, and we all at one point or another listen to the track before it goes live, so there are four chances of us finding something. But then sometimes it can be in the catalog for years, but because [we can’t know] every melody ever written by every composer out there in every country, sometimes things will get through. And it’ll be sitting in the catalog for six years, and all of a sudden somebody needs something that sounds like a particular band from another country, and lo-and-behold I have some tracks and, “Wow, that sounds...” And of course I don’t know this band that they’re trying to replace. So I go listen, and I’m like, “Wait a minute. That melody sounds really familiar, because I’ve heard it a hundred times in my catalog.” And then it’s, “Oh, wait, that’s a problem. It’s gotta come out.”
So what I suggest is, if somebody who is looking for something in the style of [a particular band or artist] go listen to their overall body of work. Don’t try to knock off individual bass lines or individual samples or lyrics. Try to listen to the body of work of that artist, and then try to think like, well, if I was that artist what would be the next song I’d write, so that it’s not an exact knock-off of something specific, even down to the arrangement. Is there substantial similarity?
Steve: Yeah, it’s one of the rules for determining if something is an infringement. Substantial similarity is one of those tests.
Tanvi: So here’s what happens in my world and a track comes in where: The bass line will be different, the melody will be different, the vocals will be different, the arrangement might be different, but when you listen to it all together, it sounds... If you were to ask somebody on the street if they thought the song sounded familiar and they said, “Oh, that’s Aerosmith. Yeah, it’s ‘Walk This Way.’” And the individual elements don’t sound like “Walk This Way,” but when they’re put together, they do...
So is it a lawsuit or not?
Tanvi: It may or may not be. You might even be able to show them sheet music, you know, note-for-note, that it’s not the same track. But do you want to spend the money going to court to deal with it? I sure don’t, so I stay away from it.
Jeff: Generally, if they’re looking for something that sounds alike or something in the style of, they may have been denied the original song already. So in those cases, you’re gonna get sued. Because if you ask for Led Zeppelin and they say “No,”or you can’t afford it, and then you go and you have somebody do a Led Zeppelin track and it sounds a lot like it, you’ve got a precedent where you’ve said that you’ve already got denied this and you went ahead and did it.
Steve: And from a legal standpoint, the person providing the music warrants to the library that it’s original; the library warrants to the production company that it’s original. Then the production company gets sued by the artist who is being ripped off; they will sue the library, who will then sue the composer.
Tanvi: And every time I have to email the writer that there’s a problem with their track, how many times do you think that that writer says, “Yeah, there is a problem”? Never. Never. They’re like, “Oh, I don’t hear it.” Yeah, that’s not gonna fly. So step back from the track and listen to it with an objective ear.
Is there a danger in getting too close to somebody’s signature style or sound?
Steve: They can’t protect a particular sound. If I was a better guitar player, I could sound exactly like Jimi Hendrix using all the same equipment he used and play original melodies that sound exactly like Hendrix. That sound isn’t protected. What happens, and my experience has been that the best way to get a director to focus on a song-and obsess on a song-is to tell him he can’t have it.
Jeff: It’s true! If you say, “I have these other options for you, but you’re probably not going to get them either,” guess what they’ll want?
Steve: And there’s something called temp love. The music editors will create a [temporary] audio track using songs that have never been cleared, and the director hears them day after day for three months and goes, “I can’t hear another song in that spot. We have to get that song.” So when we get requests from supervisors, they will actually do exactly what Michael said. “We are looking for a replacement for this Black Keys song, and here’s an audio link to it. Find us something that sounds like that.” It’s not the Black Keys; it doesn’t sound the same. But, again, there are companies who will do songs in the style of, and as long as it is an original melody and original lyrics, you’d be hard-pressed to say there’s a suit for infringement. That won’t stop people from suing you, but you can defend it. The trick is to not get too close, and to make sure that you’re not using the original melody and not using the original lyrics in any way whatsoever.
Nobody would want to have his or her music ripped off. But you could also make a strong case for late-sixties psychedelic music that might come out sounding like...
Steve: Look, if we were gonna make a case for sound, Chuck Berry would be living in Keith Richards’ house.
Let’s talk about blanket licenses. Everybody should know about blankets, because they’ve become more popular. Jeff, go ahead and give a definition of a blanket deal.
Jeff: If I’m the production company, or the station, and I get access to your whole catalog for a lump sum, or basically an agreement. That’s all it is-you’re blanketed.
So it’s all you can eat for one fee?
Jeff: Yeah. That’s what the PROs give to like a radio station is a blanket. You get everything for this rate.
OK, let’s say the catalog has got 5,000 tracks in it-or songs-and they do a blanket with a production company that’s got four shows on three different cable networks. It’s all reality-based stuff, and that production company pays them... What’s a range of what you might pay for 5,000 songs or tracks? Is it like 30 grand a year, or is it like 50 grand a year?
Jeff: Yeah, It’s like 20 grand to $200,000. It depends on the size of the catalog and the amount of uses. Mind you, also, that blanket is pre-cleared, so what they get is a big hard drive of music that the editors all get, and they just say, “I need music in this scene. Alright, put it in, put it in.” It’s all pre-cleared, it’s all good. There might be a needle-drop fee; there might be a per-use fee, but they know what they’re getting into. They know what it costs before they use it.
Is this a good thing or a bad thing for composers?
Steve: The real question for me in representing composers and libraries that do blanket deals is... Let’s use Jeff’s situation. He gets a $100,000 for a blanket for everything in his library. How does that $100,000 get paid to the writers?
Jeff: So the negatives would be how does your library define the blanket? Do they take the $100,000, and do they chip away at it every time your stuff gets used, and do they apply algorithm and you get paid this much for every time it’s used? Or do they just consider it their business fee and they don’t pay you crap, and you just get the back-end?
Which one is more prevalent?
Jeff: I would assume the latter. You know, they don’t pay you shit.
“It’s difficult to find out who’s gonna make you the money, other than just getting your feet wet and trying it out. Give the company a few tracks and see what they do.”
So that’s why I wanted to know if blankets are good or bad, because I hear this all the time.
Steve: Assuming the companies will pay you, let’s just start with that. If they will pay you, there are two basically different models. One is based upon the actual use. If Jeff’s production company uses a hundred songs and five of them are yours, you get 5% of the fee. On the other hand, the other model is based upon the volume of music. If you have ten CDs in a 100-CD library, it doesn’t matter what music is used, you get 10% of the income as writers. So those are the two different business models for people who will actually pay you. What does happen a lot though is that if the fee comes into the library, they consider it their costs of doing business and the writers only get back-end.
Jeff: This happens at the majors too. At a certain network where I’ve worked where we paid them millions of dollars for a blanket for pre-cleared stuff, aside from your marquee artists-your Elton Johns, or whoever is in that catalog-and paid them millions of dollars for access-pre-cleared major label stuff-they did not divvy that money up to one artist. I believe it was just called “promotional.”
I wouldn’t want to put myself in that catalog, then.
Jeff: Well, you wouldn’t have known that if you signed the deal in 1969, and you don’t have the control 50 years later.
Steve: And if you’re signed with a major company, they have all the rights to do whatever they want to do anyway.
Steve: I know we only have a couple minutes left, but there’s one thing I’d like to say that really hasn’t been addressed, and that is if you’re delivering music to a company, make sure you control all the rights. Make sure. I don’t care about your cousin who’s a drummer who contributed three lyrics, because if he’s not on the contract, you’re not giving me all the rights I need. We’ve had situations where all of a sudden it’s, “Ah gee, I forgot that guy was in the room when we wrote the song. We have to contact him.” It’s too late. We don’t have time to contact him, you just lost a placement. Make sure all the rights you are giving to anyone who licenses your music are 100% cleared, and you have the right to tell them that it’s cleared.
We put that in virtually all of our film and TV listings. It’ll say, “You must own or control 100% of the copyright and the master.”
Steve: We tell that to all our artists; it doesn’t always work.
Exactly. So we get people that submit stuff to us-and we’re acting in good faith that they’ve acted in good faith-and then we send it to you guys, and then you reach out to them and they go, “Oh no, I forgot my cousin, the bass player, was in the room when we came up with the lyric.”
Jeff: It’s hard. You’re dealing with musicians and their egos and their ability to do business. But I always recommend to people who will go in and co-write and do these things-especially if it’s a good relationship going in-try and get them to sign before you do the work. And quite frankly, ask them for your right to represent the song 100%, or sign for them 100%, if they trust you. Basically, you are becoming a pseudo-publisher in a way. But ask for the rights, and you can give it to each of them. You can say, “Look, we each have 50% of the song, but we each have 100% right to represent it and warrant it.” And if you have it in writing, it’s a sealed deal. And then they go, “Oh, you licensed it for that Maxi-Pad commercial? Thanks a lot.” But, hey, we’re getting paid. Try and do it. Try and give it to everybody who co-wrote on it. If you have that relationship, give everybody 100% rights to rep and warrant it. Because all they’re gonna do is make you money and not have to bother you during dinner to get the approval. It works.
Tanvi: We learned the hard way, as you always do running a business. What we implemented a few years ago is we have somebody that is part-time who just checks the rights. They check every single song that we get approved-not submitted, but approved. Most of you have probably heard from Tasha. But Tasha reaches out, looks up the copyright on the ASCAP and the BMI sites. If you’re an international artist, you have to send in your screen shot. Make sure there’s no publisher attached to it, or if the publisher that is attached to it is your publishing company. We check CD Baby; we check iTunes for the copyright symbol and who’s representing it. And, you know, if you don’t answer her questions, she will reject you. So don’t think like, “Oh yeah, I kinda own it. Yeah, I control it.” Well, do you know what control means? Do you know what that word means? Because nine out of 10 times they don’t, and if we don’t hear that you own this 100%, or, “OK, I did forget, so please add this person.” You know, you might have written a song with somebody 20 years ago and just forgot that there was a writer on it. Sure, we’re gonna catch it, because it’s gonna be registered. Hopefully, you had registered it 20 years ago, but when you submitted it you just go, “Oh, I’ll put that information in later,” or “I don’t want to take the time. The submission process takes too long.” There are just no excuses. Just do it right the first time, and then we will gladly take your track and have everybody sign on the contract. That’s just standard business.
How important is it for musicians to know all the business aspects of our industry?
Steve: Question. Who here wants to make money from their music? You people [in the audience] are in the music business. Learn the business. You already know how to make music, learn the business.
And with that thought, I want to thank Matt Hirt, Steve Winogradsky, Jeff Gray, and Tanvi Patel. You guys are an incredible wealth of information. Thank you. [Applause].