What the heck is a derivative work, and why should I care?

George Howard

Overview
When you are the author of an original work, and you fix that work in a tangible medium (write it down, record it), you are automatically granted six exclusive rights. One of the works that you don’t hear about very much is the right to create a “derivative work.” It, like all the other rights, is codified in the United States Copyright Act in 17 U.S.C. § 101:

A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

Put simply, the only person who can create or grant the rights for a derivative work to be created is the holder of the copyright for the original work.

Translations
When, for instance, The Gypsy Kings decided to do a version of The Eagles’ “Hotel California” (as seen in The Big Lebowski), sung in Spanish, it was a translation of the original work, and as such, not a cover. Thus, the Gypsy Kings had to get permission from the copyright holder(s) of “Hotel California” in order to create this derivative version of the work. Remember, you can cover any song that has been publicly released without getting anyone’s permission so long as you don’t make substantive changes to the lyrics or melody, and you abide by the compulsory license requirements (for a refresher on this topic, please see here [link]).

A translation, however, is deemed to be a substantial change, and therefore a derivative work, which, as an exclusive right of the holder of the copyright, requires permission to be granted.

As you can see from the above, it’s not just translations that are deemed derivative works, and require permission from the holder of the copyright. If you, for instance, wanted to create a movie or TV show based on a song, it would be deemed a derivative work.

Samples
However, where I believe derivatives will be relevant to most readers is with respect to sampling.

Sampling is one of the most confusing elements of the music business, but through understanding derivatives it will help you better understand both the rules around samples as well as — depending on which side of the fence you’re on (sampler or sampled) — the money to be made/paid.

A sample is when you take a piece of an existing copyrighted work and combine it with another work. If you refer back to the language from the Copyright Act regarding derivatives you’ll see explicitly where samples and derivatives overlap: “…any other form in which a work may be recast, transformed, or adapted.”

Because a sample clearly involves “recast[ing], transform[ing], or adapt[ing]” one work in order to merge it with another work, the copyright holder of the work being recast, transformed, or adapted must grant permission for this to occur. Simply put, because a sample is a derivative work, you cannot sample someone else’s copyrighted work without permission.

Note that there are actually often two copyrights that must be addressed when a work is sampled (and thus two copyright holders you must get permission from in order to avoid infringing): 1. The copyright to the song itself; 2. The copyright to the version of the song (i.e. the master). For instance, if you want to sample the guitar riff from a Beatles song, you would need to negotiate a deal with the copyright holder to the song (The Beatles’ publisher(s)) and negotiate a deal with the copyright holder to the version of the song from the recording which you are sampling from (The Beatles’ label). Either party can reject the request and not grant you the right to create a derivative work.

Should they not reject the request outright, they will negotiate with you to attempt to come to terms. Unlike mechanicals there’s no statutory maximum rate for samples, so publishers and master holders will get everything they can — including the rights to the copyright of the song that is using their sample — in the negotiations.

A lesser-known approach to sampling is often referred to as a “replay.” This is where a derivative work is created and used as part of another work via a re-performance/recording of a piece of the original work. For instance, instead of taking the sample of a guitar riff from a Beatles record, if an artist played the riff herself and then used that within her own song, she’d create a derivative work of the composition (the song), but not the master; i.e. a “replay.” In this case, the person creating the derivative “replay” would need to negotiate a deal with the copyright holder of the song (i.e. the publisher), but not with the copyright holder of the recording (i.e. the label). Of course, the publisher can reject the request.

If you do not negotiate the rights to create a derivative work with the relevant copyright holder(s), you will be infringing on the exclusive right of the copyright holder(s) to create a derivative work, and you can be sued.

It cuts both ways, of course, should someone want to sample your copyrighted work, he or she will have to negotiate a deal with you in order to do so, or risk you suing them for infringing upon your exclusive right to create derivative works.

A note on the fair use defense of “transformativeness.” The Supreme Court held in Campbell v/ Acuff-Rose Music Inc. (i.e. the “2 Live Crew Case”) that while 2 Live Crew’s unauthorized use of elements of “Oh, Pretty Woman” (the song popularized by Roy Orbison, and copyrighted by the publisher Acuff-Rose) represented a derivative work, the infringement was defensible due to the fair use as 2 Live Crew’s version provides new insight to listeners, and thus represents socially important commentary (this is very similar to/overlaps with the fair use defense of parody). This transformativeness fair use defense is likely what, for instance, Girl Talk will rely on should any of the various copyright holders accuse him of infringing on their exclusive right to create derivative works.

Don’t be confused with respect to some misinformation out there about how you can use small amounts of another’s copyrighted work in your composition — i.e. a “short” sample — and get away with it. There is no clear standard for what is considered de minimis usage, and thus you are at risk if you misappropriate any copyrighted material and create a derivative work in the form of a sample in your own composition.

Similarly, ignorance is not a defense. If you, for example, create a derivative work without knowing or intending to do so; e.g., you put a riff in your work that is so similar as to be seen as a derivative work of another’s copyrighted material, but you didn’t know about this prior work. In this case, you are still infringing on the copyright holder’s exclusive right to create a derivative work. However, if you can show that there was no knowing or intentional infringement the damages against you (if any) will be less than if you intentionally and knowingly infringed.

Summary
The exclusive right to create derivative works is a lesser-known exclusive right that is granted to authors of original works who fix their work in a tangible form. However, as can be seen — particularly with respect to samples — it can be a very important and lucrative right.

Copyright Navigator

A Digital Annotated Concept Map  

of the Fundamentals of U.S. Copyright Law

by Lionel S. Sobel

Professor, Southwestern University School of Law

Editor, Entertainment Law Reporter

click below

http://navigator.carolon.net/

Why Music Publishing?

Chris Horvath

Music Publishing EXCITES me, it really does. I may be some kind of geek because I get all jazzed when I talk about copyrights and intellectual property but I truly believe that a musician who makes their business aPublishing business first is putting themselves in much greater control of their career and future than the person who wants to be an artist, producer, songwriter, or session musician.

In the past Music Publishing has been the bastard stepchild to the record business; a stodgy, un-sexy business that nobody but bean counters really paid any attention to, much less UNDERSTOOD. Why was this the case? 

Simple answer; it ain’t sexy.

The RECORD business and the TOURING business are sexy and cool. Staying up all night in expensive recording studios and jetting from city to city playing for adoring fans is an easy sell to any young aspiring musician. But sitting in an office pushing paper, reading royalty statements, and cutting licensing deals just doesn’t have the same appeal for some reason, does it? Well allow me to show you a few things that may not completely change your mind but will hopefully show you that profit can be sexy, and the older you get the sexier profit looks!

With the idea of big record labels controlling the way we access our music fading with each passing hour, the Music Publishing business is growing   in strength. Why? We’ll get into that in a minute but the teaser is this;

When it comes to recorded music, all barriers between the creators and the paying audience have been erased.

We don’t need a record label, we don’t need an expensive recording studio, we don’t need a record store, we don’t even really need radio, etc, etc. OK, I admit to break a song BIG you still need some of those but…

The control of the RECORDING of a song is no longer an issue because almost anyone can record a great sounding track on Logic, Pro-Tools, etc, in their bedroom that sounds as good as something recorded at Record Plant Studios in Hollywood. Then they can set up a website with some simple e-commerce to sell to their fans directly.

Let’s say you have a great song and it’s available for download on an artists website and iTunes. Plus it’s in a cool indie movie that is in small release on a few hundred US screens and headed for a respectable DVD run. What is the difference between you and a big record label?

My answer; less than you would think. In fact, almost nothing.

All you need is for people to come to the website and decide to buy it. Of course you also need to know and have access to some people in the media business that would have placed your song in the film. You’ll also need to have the infrastructure to manage the exploitation of your song and collect the money it generates but that is easier to put together than it’s ever been.

The only thing that hasn’t been replaced by technology or a changing business model; a good song (and let’s face it, that hasn’t ever been a pre-requisite for success). It all begins with the song.

And because of the erased barriers I mentioned above you can control what happens with that song and youcan make the most money from it.

When the people can access your creative output with as few intermediaries as possible you stand to make the most money. Word of mouth is a powerful marketing tool and “Customers who bought X also bought Y” may eventually be a new way to break music. The tides are shifting in favor of those who control copyrights – it’s the new “Real Estate”.

Who Actually Needs Who?

I mentioned above that the record business is fading and the music publishing business is growing in strength, the very simple reason is this;

You can have a song without a recording but you can’t have a recording without a song.

And remember that you can have many recordings or versions of a song all making money at once. You would be hard pressed to find someone who has more passion, respect, and love for the process of recording music than me. But if I am to be totally realistic, I think that in the future recordings of music will make much less than the compositions will. With technology what it is and “virtual musicians” taking over much of the work it doesn’t look good.

Here’s a story as to why the record biz ultimately needs the publishing biz and not the other way around.

Back when I was producing tons of indie artists that you’ve never heard of, I got an interesting call from a major publishing company. It seems they had acquired the publishing rights of a very well-known blues/rock artist and were working hard to get his music placed in film & TV. The problem was that every time they got a potential drop it was thwarted because the artist had spent his career on a major label who owned the master recording rights and wanted to charge far more than the potential buyers were willing to pay (FYI - it’s customary that the master recording rights and synch rights are about the same). The publisher was getting potential drops for $40,000 and the label wanted $50,000 for the master rights alone. Hmmmm.

So the publisher called me and asked if I would be interested in recording versions of the artists catalog that were almost sound-a-likes of the originals. Of course I had to make them sound different enough that there would be no copyright infringement on the original recordings but still with the same vibe and feel. After some creative thinking and a lot of fun in the studio with great musicians it turned out to be pretty easy.

The publisher now had in their hands versions of the songs that respected the artist’s sound and vibe but were legally clean and ready to go. The record label found themselves completely cut out of any film & tv placements. And because the publisher owned these versions outright, they would make all the money, not just half. Good business move on their part, eh?

Making It “Below The Radar”

It’s also important to understand that music publishing (controlling and exploiting copyrights) extends down to the very low end of the music business and there is plenty of money to be made even there. The examples you so often hear are of seven figure sums generated by motion picture soundtrack deals, album sales, and massive performance royalty checks from ASCAP, BMI, and SESAC, but listen up; those examples are .0001 percent of the reality of the working music business and when you set the bar there you’re bound to be disappointed.

You can make a substantial amount of money and still be well below the radar of fame and visibility. Here’s a real life example to illustrate what I mean…

Many years ago I wrote a song on a whim for no other reason than to have fun musically and play with all the cool toys in my studio. I probably spent about 10 hours writing and recording it and though it was really nothing special it sounded good. It was something I wrote and moved on from within a day or so.

A year or so later I went through my back catalog and pulled together all the songs that I still owned and put them on a CD to send around to various networks, studios, etc. etc. Someone called me about using the above song in a tv show. I charged them a reasonable license fee and went on my way. The show got syndicated and over the years has played all over the world. This track also got licensed a few other times and to date I’ve made over $46,000 from basically 10 hours of work. Brain Surgeons don’t make that kind of money.

Now did that happen for every track I wrote? Of course not. On most tracks I’ve made nothing but on some tracks a lot more. And now after many years of writing and hundreds of titles created I get a lot of “mailbox money” that would have never appeared had I not been wise to the Music Publishing business.

As I said before – I am probably a geek. But I am a geek that makes money while I sleep. Why? Because I pay attention to the business aspects of what I do and I control my own publishing. Until you read this article you never heard my name, but you’ve probably heard my music. And if you heard it, I got paid.

So my advice to young musicians is to learn all you can about Music Publishing. It really is one of the best ways to sustain your career and really enjoy the benefits of a life spent creating music.

Copyright Navigator

A Digital Annotated Concept Map  

of the Fundamentals of U.S. Copyright Law

by Lionel S. Sobel

Professor, Southwestern University School of Law

Editor, Entertainment Law Reporter

click below

http://navigator.carolon.net/

Copyright Inefficiency

by Phillip Richard 

Allowing others the freedom to sample and remix a musician’s work can be a true positive for everyone involved. In the age of technology, there are alternatives to copyright laws that are arguably out of sync with the best interests of artists, record companies, and publishers.

The non-profit organization Creative Commons, founded in 2001, is playing a large role in giving artists control over their own copyright. Artists can choose what rights they want reserved and what rights they feel they do not need. A Creative Commons license is free and can be issued online.

The organization has grown steadily over the last few years and Creative Commons licenses are now available in over fifty-two countries.  Several musicians, filmmakers, photographers, pharmaceutical companies, as well as the Wikipedia web portal, use them.

Many individuals and publicly oriented organizations seem to be recognizing how shared creativity can promote the growth of art and culture, and there are good reasons why the sentiment can carry over to the business of entertainment and, especially, song remixes: if a remix becomes popular, listeners may be compelled to look up the original.

A good example is the tune “Somebody That I Used to Know” by Gotye, which became an international sensation. There are countless covers of the song on YouTube that use some aspect from the original music video. The song has been recreated in several genres and styles, on an array of instruments, with an assortment of techniques. Gotye embraced the outpour of creativity surrounding his work. He created a video that meshed together several covers and made them work together to create “Somebodies: A YouTube Orchestra”¹ .

Goyte has company. George Clinton, a legend and pioneer in both funk and hip-hop for over thirty years, says he encourages others to sample his music in order to “Save the Funk”. When rap artists like Dr. Dre and Snoop Dogg sampled George Clinton, his records were already out of production. But because these new artists used bits of his music, they brought back an interest and a market for Clinton’s original works. Clinton says: “We knew that sampling would keep us alive and we also related it to cloning: if you take a look at how someone is cloned, you take a piece of them and make something new out of it–sampling is the same thing.”²

User-generated content can also help. For instance, a video titled “JK Wedding Entrance Dance” was uploaded to YouTube in July 2009. The video featured people dancing down the aisle to a song by Chris Brown called “Forever”, which was released about one year earlier. Within the first week, the video accumulated 1.7 million hits and, since then, has been viewed over seventy-seven million times.³ The popularity of “JK Wedding Entrance Dance” caused “Forever” to land in the iTunes top twenty chart.⁴ If the “JK Wedding” video had been taken down due to copyright infringement, Chris Brown’s record company would have lost a significant amount of potential sales.

It could be argued, that if an artist wants to use a sample of someone’s work in their own art, they should just ask for permission.  However, this process becomes overwhelmingly complicated. It is common for a remixed song to sample upwards of ten, fifteen, or even hundreds of original pieces. Given the current laws, having an artist request permission from each copyright holder can cause the creation of a piece of music to be tremendously slow and expensive. This is true for big name artists as well as independent musicians.

Harvard University Law professor and  Creative Commons co-founder, Lawrence Lessig, suggests a change in the way we think about sampling. He compares the act of sampling a small piece of music in a new song to quoting someone in a new piece of writing. When a quotation is used, the original author is typically given credit.  Lessig suggests that this type of thinking should be applied to music samples.⁵ As long as credit is given to the original author of the work, the sampling should be legal and free to use without obtaining permission.

Yet to own a copyright for a piece of music means that no one can record, publish, reproduce, distribute, perform, or creatively alter it.  This monopoly is meant to protect the creator, but especially in the age of mass communication, it can be restricting and overly protective. Consumers can be artists themselves through the age-old process of taking an original idea and building upon it to create something different. The technology needed to remix art is easily accessible and more and more popular. The current copyright law also prevents consumers from acting as promoters.

The right to freely remix or sample existing music would not destroy the incentive for an artist to create original work. Furthermore, restructuring copyright law should not need to mean allowing piracy or mass reproduction of someone else’s work for personal profit. But at a time when more artists than ever are relying on the Internet as a promotional tool, copyright law needs to be rethought if it is to stimulate creativity.

By Phillip Richard

Endnotes

1. http://www.youtube.com/watch?v=opg4VGvyi3M

2.http://www.hiphopdx.com/index/interviews/id.1833/title.george-clinton-aleon-craft-talk-mothership-the-decatur-connection-parliament-funkadelics-encouragement-of-sampling

3. http://www.youtube.com/watch?v=4-94JhLEiN0

4.http://music-mix.ew.com/2009/07/24/jill-and-kevin-chris-brown-wedding/

5. Lessig, Lawrence. “Chapter 4 – RW Revived.” Remix: Making Art and Commerce Thrive in the Hybrid Economy. New York City: Penguin, 2008. 52. Print.

Kamal Jabbar is the founder and CEO of Palace Music Group, a Digital Distribution Company, marketing, and artist development firm.  Mr. Jabbar is a staunch believer in the notion that head-to-toe artist development is what is needed most to ensure longevity in an ever-evolving music industry.

Can we talk about the way you work for artists?

KJ: I was raised on my mother’s teachings.  I grew up on faith, believing in God, and struggling.  She said to me, “ Push yourself to do better and get more. You can do anything”  Moms taught my siblings and I survival skills.  So, I teach survival skills to each new artists because I think that people need to know how to take care of themselves.  Self-preservation is the first law of nature.  I stand very firmly on that foundation, and in my line of work you eat what you kill.

I understand that you have a background in jewelry.  How have you transformed that into being a manager and distributor for over 20 years?

KJ: I am still figuring that one out.  I started as a Jeweler relatively young in Sacramento, CA at 21-28 and did that for six and a half years.  I must say wanted a more exciting life.  Man, I had so many jewelry designs at first.    But I wasn’t getting any one to purchase my work.  One day Rick Calloway from the Sacramento Kings came in to the store, we started talking, and I explained to him that I was a Jeweler. I showed him my book and he agreed that my portfolio was okay.  I learned that day that, okay doesn't get you paid. You have got to be great. Over time he showed pictures of designs he liked and I worked constantly for two months sketching and hanging out at the Kings practices.  Asking them what they liked each time I came back.  I would show the team-Anthony Bonner, Rick Calloway, Anthony Fredericks, Ben Guillory, Kenny Smith and Lionel Simmons sketches and designs.  I graduated from the Gemological Institute of America  —I made around 10 or so designs for the Sacramento Kings--a lot of one of-a-kind pieces, too.    From that, I had the nerve to shop my designs around to potential retailers and had some of my stuff sold in nicer jewelry stores.

I was blessed with the opportunity of meeting Cedric Singleton.  Cedric is the Blackmarket Recs. label owner who had signed artist like “Homicide”, “Sicx”, “Brotha Lynch Hung”,“Mr Doctor”and “Triple Beam”.  He liked jewelry and used to come to a jewelry store I worked for.  A mutual friend approached me once at a show and asked me about doing some collaborative work with him and Ced’s artist-- Brutha' Lynch Hung's- latest release.  Ced and I became friends instantly—like family—and I would help him shop his artist around independently like the projects where mine.  He would talk to me about how the industry works. I would listen intently but I was clueless at the end of each conversation even after asking him lots of questions.  One day he came to me and said, “If really are that interested, you should come work for me.  I want you to general manage me, Black Market Records.”  I designed jewelry.  I didn’t have any clue why he wanted me, but reluctantly I agreed.  So, I started working for the Black Market Records, part-time.  I must’ve sat in six meetings with Priority records not knowing what the hell they where talking about.”  This went on for months.  He would have me read the contracts he had under manufacturing and distribution deals through Priority and Selecto-hits. Eventually, he told me “Kamal, I want you to talk to them (Priority) I want you to understand these contracts and find out how to lower these shipping and breakage fees they are charging me. What I do is creative end of the business. You, your going to be on the administrative end. I  need you to collect from my independent distributors as well as,  ship my product to the one stops and mom & pop stores. I need you to find out how save me  money in these areas if I can.” After that, I understood.

That’s how I got into music.  Around that time he created his corporation. At that time he also had a manufacturing and distribution deal with Priority.  I even started to manage several artists after working with him—clearly not knowing what I was doing.  I was smart enough to be able to add what I needed and put the pieces in place.  Cedric is a highly intelligent person, and was really my guide through it all.  He got the opportunity to film a major motion picture, called “Greedy”, which had several of his artist in it.  I was so happy that his persistence  got him the opportunity, but now he wanted me to get him some publicity.  I turned his office into my office, and I went and bought all the industry trade magazines.  I called all of them telling them about the new film, about the artist, and that my boss, Mr. Singleton, had done the movie.  I chased the press’ attention.  Thus, from jewelry came music.

Are you still active within the Jewelry community?

KJ: I’ve incorporated it all still to this day, both jewelry, fashion and music.  I look at what I have now as sort of a one-stop-shop.  Fashion is truly married to music.  Look at Lady Gaga, who has taken fashion to another level, Rihanna, Nicki Minaj, and all these people.  I don’t think we can sell just music anymore.  We have to sell a sexy image and style.  When you go to a magazine stand or go online, you see how these actors and artist look first.  Then you get into the music.  Whenever we have a new artist, we focus on the importance of his or her image and style first before looking at their music.

How do you recruit clients?

KJ: My A&R's do that. I don’t do that much, really.  I spend lots of time marketing the company now. Sure, if you would like to become a client you can go to my website or call the office, but I have 27 plus years worth of relationship building under my belt.  Most of the clients I personally bring aboard come to me as a result of some sort of referral by association. I do believe building relationships is paramount to everything else.

What kind of things do you work on with artists?

KJ: Let me start by saying that I’m a hands-on guy, especially when I see something special in an artist.    I have them through an artist development program.  We have them worked on hair, skin, makeup, clothes, and style.  At the same time, we set them up with voice and dance lessons— some amazing teachers.  They got to do all this without complaining, they must always on time, and must always be happy to do anything we asked of them.  Their work ethic has to be incredible.  Their interpretation of lyric outstanding.  On top of that, they need to aligned themselves with PROs, for the songs they write.  I teach my clients that it’s important for them to be able to give back to the community and families.

Do you also teach them about the business-related aspects of music?

KJ: Very much so, yes.  Industry education is incredibly important.  You need to know what has been written in your recording contract, you need to know about publishing deals, endorsement deals, and things of the sort.   With the Internet, new artists are quickly achieving levels of success without being prepared adequately for all of it.  They don’t last very long at all either. I truly believe that,  if you invest the time, teach the necessary skills, and prepare an artist for what they will face, then that artist will have a longer career.  When an artist studies the business of music, he or she must understand that every entity is important.  You can’t go and get a manager without knowing about the work that he’s supposed to be doing for you.  He’s managing you, but you also need to be managing him.  Wouldn’t it be great for you to know all of the who’s, what’s, when’s, where’s, and why’s so that as this manager oversees your business you know the effect that his decisions will have?  It’s a real functioning business, and you have to indulge in every aspect.  If you don’t, you’re here today and gone tomorrow. We’ve seen evidence of this.  In the past, I’ve spoken out against certain hip-hop executives regarding the day in time when rap music was gaining popularity.  These executives were ripping these young artists off by taking their publishing rights and their royalties.  They now live in mansions and their children live a life of luxury, while the rappers who made the music have come and gone.  Those executives didn’t care about the artists, and the artists didn’t know anything about the business.  Where are the artists now?

Do you think that artists need to be as scrutinized in the media as much as they are?

KJ: I firmly believe that artists should be held accountable for their behavior just as you and I are.  With that as a base, they should take this into consideration. At this day in time, an artist has the ability to be more influential than the President.  Our own children want to be like the artists they see.  The problem in urban communities today are because influential artists in music videos are glorifying a materialistic lifestyle you know, jewelry, tons of cars, and plenty of women.  A lot of artists don’t realize that they have to take this seriously and think about how their words affect their audience.  
Is it unfair for an artist to have to live up to public expectations?

KJ: I really respected Charles Barkley for saying, “I am not a role model.”  He acknowledged that he’s fallible and that he’s human.  Unfortunately, that’s not really how it works in America.  You have to realize that any public figure, whether positively or negatively influential, is going to be idolized by someone.  That’s a conscientious decision that an artist makes when he decides to call himself an artist.  They give up a lot in their decision to be a public figure. That’s just the way it is. You have to be comfortable wearing your heart on your sleeve.

How do you handle artists’ crises?

KJ: I’ve had to deal with a lot of those, and people come to me most often when they have a crisis.   I try to really get to know my clients as people, because I feel that I’m better prepared to handle the situations that they get mixed up with if I can really get to the root of the issue.

Are some artists’ crises not manageable or fixable?

KJ: For sure, but it’s always preventable. So many artists don’t take the time to think before they speak or act.  A lot of them just react and it’s not always pleasant.  One has to ask the artist whether or not they realized they did something wrong.  I always tell people that America is “gangster”.  When you do not go by the customs of the masses, you get shut down.  I think that the record labels’ reluctance to take the time to develop artists like it used to do is the hugest mistake ever.  I understand the need for “artistry.”  There are certain things, however, that should not change in modern times.  One of those is artist development.  Diction, speech, and manners are what allow an artist to succeed—as well as knowing when to shut up.

Do you think most artists need to be developed?

KJ: If they want to reach their maximum potential, absolutely yes. They have to practice drill and rehearse.  For me, it’s not about the Drake’s of the world.  It’s about the artist who are trying to get to that same level, who have previously lacked the opportunities and chances to get there.  A lot of publicists won’t work with an artist who they feel “don’t have it” or that they feel are a “lost cause”.  When I started my whole artist development program, people laughed at me and thought I was totally insane for teaching things like fashion and etiquette to artists, especially to rappers.  When I started my management business, I emulated Berry Gordy. He realized that his people were being shunned by mainstream America; so he taught the people under his tutelage how to walk, talk, dress, and meet kings and queens.  I try to teach the same thing to my clients, and provide them with the best chance to succeed.

Music Supervisors and Synch Licenses

by Andrea Johnson

After watching prime time dramas such as ABC’s Grey’s Anatomy, the amount of new music that a show like this introduces to the public is astonishing: “Anyone’s Ghost” by The National, “Abducted” by Cults, “Chameleon/Comedian” by Kathleen Edwards, “Hit It” by Miss Li, and “Echoes” by Mostar Diving Club. Who is responsible for introducing all of the amazing new music from today’s hit TV shows?  Week after week, these people have the uncanny knack for selecting uberhip underground artists barely breaking the film of the jellied masses of independent musicians.  Women like Alexandra Patsavas of Chop Shop Music known for her work on Grey’s Anatomy, Andrea von Foerster of Firestarter Music known for her work on Modern Family, and Lindsay Wolfington of Lone Wolf, known for her work on One Tree Hill are not only outstanding entrepreneurs, they are also the purveyors of musical cool.

For the record, MXSup is the slang industry term for music supervisor, a person who finds and licenses music for films, television, video games, or advertisements.  Music supervision began at the turn of the 20^th century when silent films were all the rage.  At that time, organists accompanied the film and the supervisor indicated at various places on the score where classical themes were to be played.  Today, music supervisors select music for critical points in the film soundtrack to increase the dramatic effect of the content on the screen.  The music leads the audience emotionally and heightens their anticipation and fear before the critical action takes place.

Music supervisors clear two sides of the copyright: the PA Copyright for the music and lyrics as well as the SR Copyright for the master recording.  Although a legal background is not a prerequisite, it is necessary to understand the rights of Intellectual Property holders and the terms of their copyright.  Music Supervision is often a long process that takes careful consideration and attention to detail.

Clearing A Synch License

Ramsay Adams, David Hnatiuk, and David Weiss have suggested in their book, Music Supervision, that “music supervisors must be chameleon-like in their business dealings, [and develop] an ability to adapt their methods to the needs of every new production environment”. For that, they write, it is essential that every project be well documented, especially as regards the parties in every transaction: the composer and song title, the publisher, and the record label.

For Lindsay Wolfington, the music supervisor for One Tree Hill, the licensing process starts after the spotting session.  During the spotting session, the music supervisor, producer, director, music producer, and music editor go through the script and highlight areas that require music ( ‘Jim drives to Malibu to find his ex-girlfriend and hears a song on the radio that reminds him of her’). The song coming from the source—the radio—must be integrated into the scene with a synchronization license. To minimize work, it is best to procure that license when the picture is “locked” to the music in a final version. A quote request is then sent to the publisher, who returns information about the credits used, her stake in the work, and the rate charged.  Wolfington then sends a confirmation of the terms and includes a grant of rights, the fee, and her contact information for final signature.

Cindy Badell-Slaughter CEO of Heavy Hitters Music, a contemporary music library that places music for television in shows like CSI-NY and True Blood, clears licenses following a similar multi step procedure. In both cases the publisher, who holds the rights to the Performing Arts (PA) Copyright, i.e. music and lyrics, is the first person contacted.

Next, the supervisor would approach the SR Copyright owner, usually the record label.  Once the publisher approves the request, the music supervisor creates a formal synchronization license with additional standard contract terms. Having an attorney draft a synch license to ensure its legality is recommended.

The Economics of Synch Licenses

Say an independent action film has a budget of $100,000. Most of the money is spent on actors, filming, and editing.  The director has $15,000 ($3K for the supervisor, plus 4 points – a percentage of ownership shares on the back end income from the movie) and $12K to find six pieces of music for the film – essentially $2000 per song. The director placed six temporary tracks into the film to give it the “feel” that she wants for the scenes.  These tracks are out of her i-pod collection and range from Foo Fighters’ “Rope”, Aerosmith’s “Love In An Elevator”, Broken Bells’ “The Ghost Inside”, Chris Cornell’s “Ground Zero”, Radiohead’s “Paranoid Android”, and Muse’s “Time is Running Out”.

Al and Bob Kohn, authors of Kohn on Music Licensing, state that the going rate to individually license one of these tracks for the life of the copyright in a worldwide release would be $5,000-25,000 for background use, $7,500-50,000 for Visual/Vocal use, and $15,000-100,000 for Featured use. Use of the title of the song as the title of the motion picture should bring an additional $50,000 to $100,000 over the above fees.  Use of the music for opening credits might double the synch fee with closing credits slightly lower.

Clearly, major labels’ songs are too expensive.  It is up to the music supervisor to find songs that fit the scenes with a similar mood and tempo as the temp tracks.  This can be a daunting task when everyone from the producer to the music editor has fallen in love with how perfectly the temp tracks fit into the film score.

The best option is an online music library.  These pre-cleared and professionally recorded tracks are an easy way to get music in a very cost effective and efficient way. Heavy Hitters, at www.heavyhittersmusic.com, is one of the top music libraries in the country.Heavy Hitters has an online “Jukebox” which allows the music supervisor to search using many options.   Searching for a replacement of Muse’s “Time Is Running Out”,  under “rock” and “Vocal Male”, returns 2,200 hits, but refining the find using “Bad Times” (since the title was “Time Is Running Out”) returned nine songs. One of them was “Wrong Way Down”. Being a hard-rock tune with distorted vocals, heavy guitars, and a similar tempo (111vs. 118 bpm) makes it a good fit.

Communication Skills

Overall, it is important to remember that being a music supervisor is also about facilitating relationships. Lindsay Wolfington, for example, has always tried to be upfront during negotiation by being transparent with the budget and offering fair rates.  She starts on ASCAP.com, where she searches for publishers’ information.  She notes that licensing can be difficult when the parties are not registered with the major PRO’s (Performing Rights Organizations).  Oftentimes she will find songs with an unlisted publisher.  On One Tree Hill, for example, she used a Black Eyes Peas song and couldn’t find the person who owned 2.5% of the song.  She told the producers and other publishers that unless it was all cleared, she would be unable to use it. She advises songwriters to “have a business head” and register with the appropriate PRO so that paperwork goes quickly and efficiently.  Brad Hatfield, Emmy award winner and music supervisor for the show Rescue Me stresses instead the benefits of the book Getting to Yes, by Roger Fisher and William Ury; for the parties to come to terms, the authors suggest use of the Best Alternative To a Negotiated Agreement method, known as BATNA.

A good licensing strategy depends also on good internal communications. Music supervisors usually report to a creative director, a producer or director of a film, and a video game designer, so pleasing those that have deposited faith in them is essential.

Redefining Public Performances: Interpreting Music Law

by Michael Benson

Amid the increasingly liquid landscape of the music industry, there is a constant struggle to re-define the terms used in copyright law. These disputes are often over only a few words, but their impact on future royalty structures and business models is enormous. As we head further into the digital age, performing rights organizations seek to monetize public performances through the digital medium on three fronts: downloads of music, downloads of audiovisual works, and song-samples. ASCAP and BMI have been at the forefront of many of these legal battles, most notably suing Verizon and AT&T in their failed attempt to establish public performance royalties in ringtones. Are the performance rights organizations simply fulfilling their fiduciary duties to rights holders or have they overreached?

The right to public performance is one of the six exclusive rights granted to copyright holders by Copyright Law. To dissect these issues clearly, we should look at what makes the performance of a song “public”. According to Section 101 of the Copyright Act:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered
So if your phone rings on the train and everyone hears Michael Jackson’s “Beat It,” it seems that this ‘performance’ would be ‘public’ under this definition alone. However, this certainly leaves a lot to be desired as it merely specifies the receiving environment of a performance. To account for the gradient of uses for copyrighted materials, limitations on exclusive rights are made in Copyright Law. For public performances, royalties are not payable for performances of an educational nature, religious services, and:

(4) performance of a non dramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizer
Indeed, this exemption on performance royalties for ringtones was used recently for cell phone users and service carriers . In October 2009, U.S. District Judge Denise Cote ruled that cell phones are not sources of commercial public entertainment. The court took some time to determine if there are any commercial purposes for playing ringtones, and came to the conclusion that there are none. ASCAP did provide one example- the 2006 Chicago Sinfonietta “Concerto for Orchestra and Cell Phones,” where ringtones were incorporated directly in the performance. However, the defendant (Verizon Wireless) pointed out that ASCAP had a public performance license in place with the orchestra at the time of the performance.

Back in 2005, in a rate-court proceeding between ASCAP and music services provided by Yahoo, AOL, and RealNetworks, it was made clear that digital downloads are the more modern equivalent of album purchases, and therefore are ‘private’ in nature and not subject to performance royalties.

However, as David Israelite (President and CEO of the National Music Publishers Association) points out- “This is really a fight about the future… As more and more people watch TV or movies over an Internet line as opposed to cable or broadcast signal, then we’re going to lose the income of the performance. For people who do production and background music, that’s how they make their living.” If the NMPA had its way, anyone who sells a download would have to pay a performance royalty.

In contrast, Jonathan Potter- executive director of the DiMA (Digital Media Association), makes the case that this push is merely a knee-jerk reaction to the dry wells music industry executives once profited from so greatly:

These guys are afraid that the business model is shifting away from public performances to a model of private performances. This is a turf battle. They are saying, ‘The songwriters aren’t getting paid.’ Baloney. Songwriters are getting paid. They’re paid sync rights and (mechanical) rights. They aren’t getting paid for the public performance in a download because there is no public performance in a download.

The performance rights organizations have shown their cards regarding where they feel business are heading, and it shows they are worried about the impact this could have on songwriters and copyright owners.

Most controversial is the case made that 30-second iTunes samples should be subject to performance royalty as well. Apple has licenses to offer these samples with rights holders but they currently do so without paying. The argument is likely made that the previews add value to the music offered because it allows prospective music buyers to try before they buy, an important feature to the music download paradigm. Along with the recent pricing changes including an increase on popular iTunes downloads (.99 to $1.29), many are worried that any other added cost will further drive the price of downloads upward given the popularity of single-song downloads. As digital revenues seek to replace the more profitable physical sales-revenues, the argument for performance royalties in song samples appears more likely to sink than swim.

In sum, ASCAP and BMI’s fiduciary duty to their affiliates seems to explain their willingness to fight these battles. The digital realm certainly remains the wild west- especially in terms of copyright law. These skirmishes will likely continue as new methods of delivery continue to evolve. But these waters must be trolled carefully, as the main threat to the income of rights holders is not a lack of public performance income, but a lack of consumers who are willing to pay for music at all.

Performance Royalties In New Media

by Sarah Demarco 

Q:
How do artists collect royalties when their sound recordings are performed on digital cable, satellite television, Internet and satellite radio?
A:
Artists collect their royalties through an independent, non-profit performance rights organization called SoundExchange. It represent over 3,500 record companies and their 6000 labels, and therefore thousands of artists licensing their music for noninteractive streaming services that use satellite, cable or Internet methods of distribution.in the digital age.

SoundExchange is the first organization formed in the United States to collect performance royalties for sound recording copyright owners (SRCOs), featured and nonfeatured artists. The latter is important, for sidemen in a record are at last recognized as parties in the collection of these royalties. The Digital Performance Right in Sound Recordings Act of 1995 (DPRA) and the Digital Millennium Copyright Act of 1998 (DMCA) granted a performance right in sound recordings for such transmissions.

SoundExchange also collects and distributes royalties from statutory licenses, including: (i) digital cable and satellite television services (Music Choice and Muzak), (ii) noninteractive “webcasters” (including original programmers and retransmissions of FCC-licensed radio stations by aggregators), and (iii) Satellite radio services (XM and SIRIUS).

It does NOT administer royalties for (i) interactive performances of sound recordings (e.g. “on-demand” services that allow the listener to select the tracks they wish to listen to and/or the order in which they wish to hear them); (ii) the reproduction right for sound recordings, e.g. digital downloads; (iii) licenses for interactive performances or reproduction of sound recordings must be obtained directly from the SRCO; and (iv) analog public performances (traditional radio and television).