Buche & Associates, P.C.
is involved in music law because we love music. We handle music law and
represent the interests of record and publishing companies, managers,
producers and musicians. We represent clients in negotiating music deals and
in litigation concerning music related business.
Music law is a highly specialized field that couples contract, copyright and
other intellectual property laws. The music business is extremely
competitive, riddled with minefields for the unsuspecting, and constantly
evolving with new technologies. Buche & Associates, P.C. is familiar
with this law and can help you negotiate the business complexities,
minefields, and many nuances of music contracts. Where legislatures may not
have caught up with the pace of the music business, Buche & Associates,
P.C. is committed to using creative legal solutions to help your creative
business stay ahead of the changes.
The following
introduction is provided for those who may be new to the Business.
Copyrights
The
foundation of music law rests in the protections afforded to artists under the
copyright laws. Copyrights protect artistic expression and exist from the
moment an author reduces the expression to a tangible medium, for example,
when a musician first records a string of notes. The musician owns a
copyright from the point of creation. It is not necessary to file a copyright
registration, although to do so is highly beneficial from the standpoint of
proving copyright ownership, collecting damages from infringers, and for
collecting royalties.
A
songwriter owns a music copyright. A copyright is truly a collection of
separate rights to (1) reproduce the work; (2) distribute the work; (3) create
derivative works from the original; and (4) to perform the work publicly.
These are the most important aspects of copyright for purposes of music law,
although other rights exist. A record company will typically own another type
of copyright—a sound recording copyright— which is separate from the music
copyright and discussed in this article.
A music copyright
created under the 1976 Copyright Act (written after January 1, 1978) lasts for
70 years extending beyond the life of the author, therefore, the rights
represented by copyright are extremely valuable to Artists, their
heirs, record companies and investors. Ask rock legend David Bowie, who in
1997 embraced trends toward securitizing intellectual property rights, and
netted roughly $55 Million by selling “Bowie Bonds” to investors for an
average 10-year life (paying 7-8%), and for which revenue is generated by
publishing fees and recording sales.
Royalties
Music royalties are the proceeds of licensing song copyrights. Royalties are
paid in exchange for the privilege of using another person’s copyright. There
are many types of royalties in music law, depending on which specific
copyright is being used. Some typical royalties that are dealt with in the
music business include performance royalties, song royalties, mechanical
royalties, and synchronization royalties.
Performance
Royalties
Performance royalties are owed when a person “performs” a copyrighted song.
In music law, such performances can include a stage performance, but can also
extend to broadcasts of a songwriter’s song. For instance, a restaurant that
broadcasts a radio station that happens to plays an Artists song over a very
bad stereo system still “performs” a work. BMI®, ASCAP®
and SESAC® (www.BMI.com,
www.ascap.com,
www.sesac.com) are performer’s rights organizations—sometimes known as
“copyright police”—who will be the first to inform the restaurant that it must
pay performance royalties for use of the songs, or face the music via federal
lawsuits. Most musicians should join such an organization, which will collect
and pay royalties to the songwriters.
Mechanical Royalties
Mechanical royalties are what a recording company pays to a music publisher
under a mechanical license in exchange for the right to make and distribute
records featuring a particular song. Mechanical licenses for most music
publishers can be obtained through the Harry Fox Agency (www.harryfox.com),
which is an agency formed to license, collect, and distribute royalties on
behalf of U.S. publishers that own and/or control the rights to musical
compositions. If you want to record and distribute songs written by others,
you need to get mechanical licenses. The Congress sets a statutory rate for
mechanical royalty rates, which for 2005 are 8.5¢ per song for each CD or tape
made and distributed, or 1.65¢ for each minute of playing time, whichever is
greater. The rate after 2005 is 9.1¢ per song or 1.75¢ per minute. Despite
statutory rates, it is commonplace for record companies contract to pay 75% of
the statutory rate in most contracts.
Songwriter Royalties
A
songwriter earns, or at least is supposed to earn, royalties every time a
reproduction of the artist’s song is sold. This could be a compact disc sold
at a music store or a song downloaded from the Internet, the latter of which
is becoming increasingly more popular with downloadable MP3 files and
portable, IPOD® styled players. The widespread free distribution
of Metallica’s® songs on Napster® is what spawned
litigation to stop the understandably popular music distributor. Aside from
recent controversies, the royalty percentage a songwriter earns will vary
depending on the songwriter’s popularity, the medium licensed, and contract
negotiations setting the royalty, although a typical songwriter royalty on an
music album would typically be in the range of 8-25% of a suggested retail
list price. It is important not to neglect royalties for new music mediums in
calculating royalties. It is also important to understand that expenses
established by the recording company contract offset amounts actually paid to
an Artist.
Synchronization
Rights
When film legend Quentin Tarantino merges “Woo Hoo” by the
5.6.7.8’s with his movie Kill Bill 1, “synch” rights are involved. A
songwriter is synchronizing his or her music with another multi-media
project. The perfect song at the intro of a movie or television commercial
can make or break a product. The Cadillac® division of General
Motors® obviously appreciated the value of the synch rights when
they rolled out their new Caddie on nationwide commercials to Led Zeppelin’s
famous tune “Rock N’ Roll.” How much is Led Zeppelin’s song worth? What is
the value of changing a products image? It is not uncommon in a publishing
deal for the publisher to claim as much as 50% interest in synch rights to an
Artist’s song. The value of a particular or song or synch right is another
question entirely. This is why you want Buche & Associates, P.C. on
your side when you negotiate such a deal.
Sound Recordings
In
addition to considering mechanical royalties, any person who wants to record
and distribute the compositions of another must consider the importance of
obtaining the “master use rights.” These rights relate to the “sound
recording” or SR copyright, which is separate and apart from the copyright to
a song (words and music). A sound recording is the copyright to the
production of the master recording itself (CD, tapes, etc.) Instead of the
music publisher, record labels typically own the rights to the sound
recordings. Any reproduction of a previously recorded work will require a
license of the master.
Common Music
Contracts
Recording Contracts
The
recording contract you land will frankly depend on how highly people regard
your work. If you are Sting®, chances are that you can negotiate a
fairly favorable deal for yourself with basically anyone you want. On the
other hand, if your most recent gig was staged in your garage or at a family
barbecue, Columbia® may not beating down your door for a record
deal. Nevertheless, it is important for new, and newly discovered artists to
understand the terms of a record deal because the consequences are long term.
Signing a big label can have undeniable benefits, principally in terms of
national exposure for musicians, but the complexities of a record contract,
royalty calculations and expenses can rapidly erode any revenues earned by a
musician. Typical royalties could be anywhere from 8-25% of suggested retail
price of a recording. However, any royalties can be rapidly eroded through
royalty calculations and expenses. On major label deals, a newly signed
musician should fully expect to pay for all limos, resort hotels and
associated bling-bling from artist royalty deductions. Bad record contracts
can also have the unfortunate effect of making a band hard to market to
subsequent record companies. Buche & Associates, P.C. can help to
advise you of your rights and contractual obligations on a record deal.
Publishing &
Songwriter Contracts
Songwriters enter contracts with music publishers who help the Artist generate
income by promoting songs to the general public, record labels, and through
multi-media. Music publishers make money by licensing the songwriter’s songs
to interested parties and then it splits the proceeds with the songwriter.
Publishing or songwriter contracts are used to transfer or assign the
songwriter’ copyrights to the publishers who become the owners of a
composition. In exchange for the transfer of ownership, the Artist gets paid
from the publisher as money is collected. A common songwriter contract would
entitle the Publisher to 50% of mechanical royalty income, 50% of
synchronization royalties, and the “publisher’s share” of performance royalty
income. Also common are co-publishing agreements, where the Artist will get
closer to 75% of mechanical, synch and 50% of the publisher’s share of
performance royalties. Artists with a great deal of clout may be able to
arrange for “Administration Agreements” where a publisher manages an Artist’s
portfolio and retains a percentage of revenues collected.
Producer Contracts
A
producer is the person or business that orchestrates the actual recording,
editing and coordinating of various elements of a song or album into a high
quality master recording. Many record companies have in house production
facilities, but artists may often seek out a particular producer with
well-known skills or reputation in a particular field or genre of music.
Producers may work for a percentage of record sales or for a specified fee for
the particular project. Producer contracts can vary quite a bit and Buche
& Associates, P.C. can help you to negotiate a producer contract that fits
your needs.
Management Contracts
Good musicians are not always good business managers, or publicists. This is
why a good manager can often make the difference in whether an artist or band
is successful. The Beatles owe much of their early success to manager Brian
Epstein, who helped the band to dress and act like the early Beatles
(requiring the suits), and who also helped them sign a first record deal with
George Martin on EMI’s Parlophone label in June 1962. A good manager should
be proactive in securing opportunities for the musician(s) and managing his or
her business. In addition to helping a musician land gigs, record deals and
publicity, a good manager will also know how to select and assemble teams
necessary to make a musician a success, for example, tour support,
contractors, attorneys, accountants, etc. A manager will frequently work for
a percentage, with different arrangements made for expenses. Buche &
Associates, P.C. can make sure that your management contract facilitates
proper management.
Music Forms
Beware of “form” music contracts. While there are many organizations that
market music business forms, they are completely useless without a
comprehensive understanding of copyright law and the music business. In the
music business, you need a music business advocate. Buche & Associates,
P.C. will take the time to understand your business, your music, or your
art and provide you with the representation that you need. Buche &
Associates, P.C. is based in San Diego, California and represents clients
primarily in the states of California and Texas.
[ Firm - Practice -
Lawyers - Contact -
Links - Notice -
Home
]
PATENTS TRADEMARKS & TRADE
DRESS CIVIL LITIGATION & TRIALS
BUSINESS FORMATIONS
TRADE SECRETS & UNFAIR COMPETITION
LICENSING OF INTELLECTUAL PROPERTY
CONTRACTS
NONCOMPETE & CONFIDENTIALITY AGREEMENTS COPYRIGHT WEBSITES, DOMAIN NAMES & CYBERSQUATTERS
MUSIC LAW PERSONAL INJURY LOCAL COUNSEL SERVICES
