By Bobby Borg
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 offerand 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 publisherbut 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 producein as little as one dayexactly what the client needs. That's pretty impressive!
The happier the music library makes its clients, the stronger the level of trust. With trustthere 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 clientand 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 compositionsin television and also in films aired in foreign territoriesafter 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</b> 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 premiumthat 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.