Tag: copyright

What You Get and What You Give: Permission and Compensation for Setting a Text

Posted on October 21, 2019 by - Columns, NewMusicBox

Four old fashioned metal keys.

Once you’ve found a writer whose words you want to set and discussed some basic logistics and interpersonal concerns relating to your partnership, you’ll transition to discussing rights, permissions, and compensation.

Copyright for Pieces Using Text

Who owns what rights will depend on the nature of your collaboration and what you negotiate.

Who owns what rights will depend on the nature of your collaboration and what you negotiate. For transactional partnerships involving pre-existing text, the author/publisher keeps the copyright of the words, but allows the composer to use them in their piece. The composer then owns the copyright for the resulting musical work, but not the copyright for the words. If the author is creating new text for the composer to set, the same generally will be true.

However, if a composer and writer are co-creating the words and music (for example, in musical theater or a similar song-writing situation), then they might equally share the rights to both words and music. Contracts for that type of arrangement differ significantly enough from general text-setting agreements that they are outside the scope of this article.

Text-Setting Permissions

The heart of a text-setting agreement—whether for an already written text or a new one—includes the permissions granted to the composer and what compensation they provide in exchange. When the copyright holder of a written work grants a composer text-setting permission, they are licensing the text to the composer for specific uses. How exactly the composer can use the text and what they can thus do with their composition depends on the permissions granted.

There are six permissions a composer should get.

There are six permissions a composer should get:

1.) to use the text in a musical composition

2.) to license public performances of the resulting composition

3.) to publish and sell the resulting composition

4.) to have the resulting composition recorded (audio and video) and to permit the commercial release, synchronization, and/or other transmission of such recordings

5.) to print the text with proper credits in concert programs and liner notes for recordings

6.) to create arrangements or similar derivative works of the resulting composition

Permission 1 allows you to incorporate the author’s words into a musical setting. Everything else depends on this license being granted.

Permission 1 may or may not be exclusive, and exclusivity may be given in perpetuity or for a specific amount of time. If possible, I prefer to get exclusivity for at least a few years for art songs or choral works, and in perpetuity for dramatic works. If I receive exclusivity for a fixed term, I make sure the agreement specifies that I will continue to have non-exclusive permission after exclusivity expires.

When giving text-setting permission, some authors/publishers may stipulate how the text can be set. Most commonly, they could prohibit the composer from changing the text. Others may allow repeating lines or words but forbid other alterations. Or, they might indicate that any proposed modifications must be approved by the author/publisher. Less commonly, an author/publisher may also give guidelines about the music itself. I personally have not encountered this issue, but it does happen. Still, unless an author/publisher insists on it, specifying details about the musical composition in the text-setting agreement should be avoided.

Specifying details about the musical composition in the text-setting agreement should be avoided.

In any case, if the author/publisher includes a stipulation that is a deal-breaker for you, try to negotiate with them. If that doesn’t work, you’ll need to decide if you can live with that arrangement or if you should walk away.

Permissions 2-4 ensure your composition will have a long, productive life. More performances means more performance royalties, more music sales/rentals, and more possibility for future career growth. Recordings are vital for the same reason. Even if they are not directly generating income, recordings can help to attract potential performers, presenters, and commissioners. And if you do release a recording commercially or license it for use in film or on television, you and the author/publisher will receive added income. Allowing performances, recordings, and publication thus benefits all parties.

Permissions 1-4 are essential. Do not set a text without them.

There is a little more flexibility with the other two permissions. No. 5 accounts for the standard practice of printing texts to aid in listening, but should a copyright holder balk, it is not absolutely necessary. If you don’t get this permission, include a note in your score directing presenters to request permission to print the text in a concert program from the copyright holder.

Allowing performances, recordings, and publication benefits all parties.

Permission 6 is also not strictly necessary (and one could argue it falls under Permission 1). Still, I prefer to be explicit about the possibility of making arrangements or other versions of a piece up front. Generally, the splits for performance royalties, sales/rentals, etc. would remain the same for any such arrangements. The main exception would be any purely instrumental pieces based on a vocal work: there, the text’s copyright holder would not have any rights to royalties or other compensation.

Performance Royalties

In return for the permissions listed above, the composer would typically compensate the copyright holder in some way. First, in any piece where text is spoken or sung, the author(s) are entitled to a portion of the performance royalties, regardless of any other compensation they might receive.

Typically, performance royalties are split 50-50 between the publisher and all creators. The 50% creator share is most commonly divided 25% to the composer(s) and 25% shared by any authors not in the Public Domain. A 2/3-1/3 split or other arrangement is possible if all parties agree. (Translators—if applicable—are included in “authors,” as they contribute to the creation of the text. Remember, translations of texts that are Public Domain in their original language may not be Public Domain themselves. In such cases, you’d need to get permission from the translator/their publisher and compensate them for use of the text.)

The 50% creator share is most commonly divided 25% to the composer(s) and 25% shared by any authors not in the Public Domain.

For non-dramatic works, these royalties are collected by performing rights organizations (or PROs) like ASCAP or BMI, who distribute the funds to their members.  Authors must belong to a PRO to receive this income, so I suggest including a clause in the contract that the author must be a member of an appropriate PRO to receive their performance royalties.

Dramatic works like operas fall under grand rights, and such performances are licensed by the copyright holder(s). In that case, the composer or their publisher if they have one will need to distribute any licensing fees to the author(s). The split between composer, author(s), and if applicable, publisher should be specified in the contract.

Additional Compensation

There is no one standard for compensating a copyright holder to use a text. Some common arrangements are:

  • the author receives performance royalties but no additional compensation
  • the composer pays the author an upfront fee
  • the composer agrees to give the author/publisher a percentage of sales/rentals
  • the composer pays both an upfront fee and a percentage of sales/rentals

It is more likely performance royalties will be the sole form of compensation when one or more of the following are true:

  • the composer and author have a personal relationship
  • one or both is a student or emerging artist
  • the composer is receiving little or no money for writing the piece
  • the music will be self-published
  • the text is already written
  • financial need or other similar extenuating circumstances exist

Performance royalties usually provide more income over time than either an upfront fee or a percentage of the sales/rental income, so this arrangement is not an unreasonable possibility. Still, it is good to offer additional compensation when you can, especially if the author is writing a new text for your collaboration.

It is good to offer additional compensation when you can, especially if the author is writing a new text for your collaboration.

An upfront fee has the benefit of being a clearly defined one-time commitment. However, it requires an initial investment on a piece for which you may not have received any money yet. This can be problematic depending on your financial situation and the fee involved.

The amount requested can vary widely depending on who the author is, who the publisher is (if applicable), and who you are. If you are receiving a commission to write the piece for which you need text, you could offer a percentage of your commission fee. . If you are not being commissioned, you may have to pay the fee out of pocket. It could be relatively affordable, perhaps in the $50-200 range. Or, the fee could be a prohibitively high amount (up to $1000 or more) that you are unlikely to ever make back in future sales.

If the fee is beyond what you can afford, you might share details like planned list price, anticipated sales, or profit of similar pieces you’ve created in order to give the person with whom you are negotiating a more realistic sense of the finances involved. When the amount comes from the publisher, the author might be able to convince them to agree to a more reasonable fee. Or, if you have a publisher, they could negotiate with the author’s publisher on your behalf. Ultimately, though, if the fee is too high, you may need to find a different text or author to work with.

A percentage of the sales/rentals for the composition is another option. While this has the benefit of requiring no money up front, it could cost you more in the long-term if the piece is very successful. For published musical compositions, the publisher typically keeps 90% of the sale price. The creator share is 10%, which is split between the composer and author(s). That may be divided so that half goes to the composer and the other half is shared by any authors, or it may be split 2/3 to the composer and 1/3 to the authors. For self-published works, giving the author 10-15% of the sale/rental price is reasonable. Some composers may go as high a 50% share on sale/rental income. That split only makes sense if it comes after expenses, since you alone will be covering those.

If you are self-published, this approach also requires extra accounting to ensure the income is collected and distributed appropriately. You might make annual payments or periodic ones triggered when the author/publisher’s portion reaches a certain threshold (for example, when the total reaches $25). Whatever arrangement you and the author/publisher agree to should be detailed in your written agreement, as should the actual percentage.

Whatever arrangement you and the author/publisher agree to should be detailed in your written agreement.

Paying both an upfront fee and a percentage of sales/rental income is not to the composer’s advantage. It has all the downsides listed above plus an increased overall financial commitment. Unless you really want that text and cannot negotiate another arrangement, avoid this possibility.

Regardless of which arrangement you and text’s copyright holder agree to, you will want to write up the granted permissions, any stipulations, and all financial details into your contract. The final article of this series will focus on formalizing your agreement and completing the collaboration.

Support for the writing of this article was provided by the ASCAP Foundation Irving Caesar Fund.
ASCAP Foundation Logo

Copy Rites

Posted on August 16, 2013 by - Columns

Madison Building, LoC

The James Madison Building in Washington, D.C., which houses the U.S. Copyright Office.
Photo credit: Matt H. Wade from Wikipedia
(CC-BY-SA-3.0)

My post last week about preparing oneself to improvise as a performance technique (or practicing improvisation sotospeak) inspired several reader comments. One of them began an exchange that I believe warrants further dialogue on the subject. A reader described improvisation as a way to find new ideas for compositions, which I countered as not practicing (in the sense of preparing oneself for performance) as much as a process of composing, which is different from the “creation of music in the course of performance” (“Improvisation,” New Harvard Dictionary of Music, Cambridge: Belknap Press, 1986; p. 392). I then asked the reader if he used improvisation in performance and how he practiced in preparation for that. He described two methods he used to prepare to play trumpet in his school jazz band. One, arpeggiating chord progressions and inserting passing tones to create “licks,” is a good way to practice applied harmony in a jazz setting. His second method, though—to “imitate the solos in recordings”—profoundly goes to a comment that was sent to me privately from someone who “thought there could have been more … about finding your own voice and improvising in a new music as well as jazz context.”

Imitation is the first and possibly most important step in finding one’s own musical voice. In every genre and culture, long before we become musically literate, we learn music by ear, mimicking the sounds others make. Even formal musical pedagogy requires that students imitate what their teachers demonstrate as essential to proper technique and interpretation. “No, that’s not right; do it like this” is an indispensible part of the music instructor’s teaching repertoire. But once the lessons have been mastered and are over, an autodidactic process takes place whereby everything learned can be ignored. Then the core value of the lesson remains while the student’s innate philosophical aesthetic takes over to supply insight and guidance. I remember a time long ago when I was hired to play with saxophonist Bill Evans, his teacher Dave Liebman, and drummer John Riley at Michael’s Pub in Boston. It was Evans’s “coming out” concert after he had been placed in the saxophone chair of Miles Davis’s newly reformed group. (He’s no relation to the pianist Bill Evans, who played with Davis’ band in the 1950s.) It also marked the official end of Evans’s apprenticeship with Liebman. I don’t remember much from that particular date. None of the music stayed in my head. But I do recall Evans making strange announcements on his CB radio on our way to Boston. Also, that we all stayed at the same apartment that night and listened to a recording of the gig. While Liebman honored Riley and me by sharing his candid thoughts about what he heard, Evans fell asleep. Because Evans was, for all intents and purposes, taking over the spot in Davis’ band once held by Liebman, there was a bit of a textural similarity in their playing. But Evans, like another of Liebman’s students, Joe Lovano, was striking out in his own direction. The music we played was nothing like what Davis was doing at the time. We were, in a sense, putting our own stamp on the two-saxophone and pianoless group that Elvin Jones had formed with Liebman, Steve Grossman (another Miles Davis alumni), and bassist Gene Perla. Davis, on the other hand, was playing his own brand of funk that would mark his coming out of “retirement” with the Grammy-winning album We Want Miles (Columbia Records, 1982). While Davis’s sound has informed the greater part of Evans’s music making since then, his music doesn’t sound at all like Davis’s or Liebman’s.
Dave Liebman’s Svengali-like influence on his students brings us to another comment from last week which was meant as a tongue-in-cheek reference to instructors who are allowed to dominate their students to the point of inhibiting them. My post included the first of a three-part YouTube extravaganza called Tristano Robots which is a satirical look at the so-called “Tristano-ites” who seem to worship everything about pianist-composer-educator Lennie Tristano. Tristano practiced a famously stringent teaching method that required his students to memorize key solos of the recorded output of Louis Armstrong, Lester Young, and Charlie Parker. They were also restricted in the amount of chord progressions they could practice and were instructed to learn complicated “lines” that were composed and recorded by Tristano and his principle colleagues: Warne Marsh and Lee Konitz. The chord progressions used were lifted from popular songs like: “All The Things You Are” (“Ablution”), “All of Me” (“Line Up”), and “You’d Be So Nice To Come Home To” (“G Minor Complex”). The fact is that many of the students of Tristano’s methods are highly original performers. Pianists Connie Crothers and Kazzrie Jaxen are two examples that come to mind. It is interesting to note that Dave Liebman, who also studied with Tristano, requires his students to write a “line” on the chord progression to John Coltrane’s “Giant Steps,” a tune that the more traditional members of the Tristano school prefer to eschew.

All satire, though, exaggerates the truth and the comment from last week reflects this with, “[Are] you sure the NSA didn’t have an eavesdropping program on me back when I was studying? I think that was me.” I can assure you that this was not the case because I know the person who invented the Tristano Robots and he explained that he was using humor to help process his experience of studying with one of Tristano’s students, pianist Sal Mosca. While not everyone involved with the Tristano milieu feels frustrated by their pedagogical regimen, there is a certain uniformity of approach that permeates the school. I discovered quite a bit about my own music making while playing with Connie Crothers that I truly believe was a result of a quest for artistic purity and integrity. But Charlie Parker composed original melodies over the changes to popular songs, so a precedent was set. And, although Parker did this primarily to avoid paying licensing fees on the tunes, his “lines,” like “Ornithology” (“How High the Moon”), “Ko Ko” (“Cherokee”), and “Donna Lee” (actually composed by Miles Davis over the changes to “Back Home Again in Indiana”) are highly memorable and have become bebop classics.

The reader’s choice of words emphasized an issue at the core of this phenomenon: the U.S. Copyright Office, like the NSA, was established to protect certain dimensions of society but often falls short of achieving its goal. Copyright regulations are intended to entitle the creator of a work exclusive rights for a period of time; currently 70 years beyond the life of the composer. Unfortunately, loopholes exist that obfuscate authorship; notably the “work for hire” provision that designates music created by a staff composer as belonging to his or her employer. So a bandleader might claim authorship of the works of his or her sidemen or a record company might demand the publishing rights in return for recording and distributing an artist’s music. Furthermore, artists aren’t given copyright protection for a work’s title, a chord progression or, in many cases, an improvisation. The case of a work’s title makes sense to me (imagine the backlog of infringement disputes over works named after their forms: Symphony in C, Concerto for Piano). Chord progressions are less obvious. Should John Coltrane be given copyright protection for “Giant Steps”? If so, what then of the 12-bar blues—public domain? However, to my way of thinking, an improvisation is a work that should be copyrightable. As it stands now, the only way to copyright an improvisation is to record it or write it onto paper. [1]
Current Federal copyright regulations, however, only cover the recording of the improvisation, not a recreation of it by someone else. So, while John Coltrane’s estate would only be allowed the mechanical fees for the recordings of his many highly original versions of “My Favorite Things” (with the composer royalties going to the estates of Richard Rodgers and Oscar Hammerstein II), [2] it could be denied royalties for someone else’s vocalise interpretation of his improvised solos on it. State regulations like California’s Civil Code § 980 offer a modicum of protection vis-à-vis legal argument, but not much. The situation makes me appreciate the genius behind Louis Armstrong’s copyrighting his part for “Cornet Chop Suey” before he recorded it. It smacks of a guerilla tactic in the arts that that supports a Deleuzean view of how American music, by and large, can be considered the creation of subaltern communities looking for assimilation and appropriation by the Great American Culture Machine.

*

1. California Civil Code § 980(a)(1), however, presents an interesting provision among its statutes: “The author of any original work of authorship that is not fixed in any tangible medium of expression has an exclusive ownership in the representation or expression thereof as against all persons except one who originally and independently creates the same or similar work.” Sounds like someone is optimistically concerned about an infinite number of monkeys at their typewriters.
2. To be sure, the links provided all point to clips on YouTube, where, for the time being, equitable royalties are being denied to Rodgers and Hammerstein as well.

Derivative Works

Posted on July 10, 2013 by - Columns

Here’s a confession: I like creating derivative works. I mean that both in the colloquial, pejorative sense of the term, as well as the broader and more confusing legal definition of the term. According to the U.S. Copyright Act, a derivative work is “a work based upon one or more preexisting works.” Obviously there is more verbiage than that, but that’s the essence of it. To an artist, you can see why this might be a hopelessly vague definition.

Wrangling over what separates an original work from one that depends “too much” on a pre-existing work has been the subject of a number of high-profile lawsuits over the years. Off the top of my head, there was the Beastie Boys’ sampling of a jazz flute improvisation by James Newton; producer Timbaland’s appropriation of a track by obscure Finnish musician Janne Suni; and the Verve’s lifting of an orchestral arrangement of a Rolling Stones tune. In many of these sorts of cases, the outcome seemed to have less to do with musical merit and more to do with who had more weight to throw around (and/or who had better lawyers). In other words, the celebrities tend to defeat the lesser known quantities in these legal battles, regardless of which side they’re on. This ends up twisting and perverting the original intent of copyright law, stifling innovation and consolidating intellectual property into the hands of the powerful.

Many years ago a student composer I knew received a cease-and-desist regarding an electronic piece that paid homage to Michael Jackson’s music. The samples he used were so tiny and reconfigured that if you didn’t know it was based on Michael Jackson, you might have no idea. But by explicitly acknowledging it, this composer made himself a target. If it had gone to court it’s very possible he would have won the case, but the mere threat was enough incentive for him to withdraw his work. This puts the artist in a strange and unenviable position. By choosing not to cite your sources, you may escape notice, but you detach your work from a great deal of what gives it meaning. You might also find yourself feeling conflicted about sharing the work, or even betting against its success.

I don’t think it’s hyperbole to call this a culture of fear. Almost everyone I know second-guesses themselves when creating something that references the work of the recent past—and that includes nearly everything that we create. You can absolve yourself artistically by calling it a tribute or homage or parody, but this doesn’t actually protect you. It’s true that this often doesn’t stop people from creating, and it shouldn’t. (Alex Temple’s Nineteen, a collage piece that samples one hundred 20th-century works, is a great example of the kind of derivative creativity I hope to see more of.) But it does often affect what we can do with those works once they’re created. Without getting too specific, in the past it has stopped me from announcing, selling, or publicly posting recordings of certain pieces. Am I just being paranoid? Maybe. But I’m certainly not the only one.

David vs. Goliath

Posted on June 4, 2012 by - Uncategorized

I spent all of Friday attending the annual meeting of the Music Publishers Association, which is proud to call itself the oldest music trade organization in the United States. It was founded in 1895. This year, the MPA’s long history was much in evidence—even the printed program, as well as all the name tags for the attendees featured an iconic-looking old logo.

MPA Logo

History screams from the Music Publishers Association’s logo printed on the program for their 2012 annual meeting.

After the announcement of the MPA’s 2012 Paul Revere Awards, which honor graphic excellence in published music scores, a lifetime achievement award was given to Frank J. Hackinson, who has been in the music publishing business for seven decades. Highlights of Hackinson’s CV include popularizing the mixed song folio (now a standard publication format for pop music), signing the Beatles to their first print music contract in the United States, establishing Columbia Pictures Publications (whose roster included Henry Mancini, Stevie Wonder, Bruce Springsteen, and Whitney Houston) in 1971, and, in 1988, the FJH Music Company which specializes in repertoire for concert band and educational music publications.

Bryan Bradley

Bryan Bradley shows MPA attendees some facts and figures about the state of music publishing.

What was particularly heartwarming about this gathering was how deeply personal it all was. At one point during the meeting, there was a memorial to MPA members who had died during the past year, including, in most cases, brief archival video footage of conversations with them. Seeing the faces behind the names throughout the day, both of people who are now longer with us as well as those who very much are, helped me to understand how this particular industry—unlike most in our nation—is very much one that has been molded by individuals rather than by large corporations. Bryan Bradley, the chief operations officer of Alfred Music Publishing who moderated a panel in the afternoon, acknowledged that this “industry is very mom and pop.” And many of these individuals have also been and or continue to be composers or active performing musicians in addition to their work on behalf of other composers and interpreters.

Yet in the minds of many people, publishers are monoliths—giant, impenetrable entities that control the copyrights of others and draconically police their usage. And in the era of the internet, many people have taken an alternative view of intellectual property. Some believe that anyone should be able to disseminate any and all information to whomever they want to freely and at any time, and most believe that the duplication of intellectual property is not the moral equivalent of stealing a physical object. But people who create music in particular are, of course, well aware that this form of creation, though it can never be corporealized into a car or a diamond ring, can be far more valuable than either. And if there is no way to protect this kind of non-physical creation, the ability to make a living from creating it, which has always been tenuous at best, becomes even more of a pipe dream. Ironically, of course, many of those same folks who believe that intellectual property does not require financial remuneration spend loads of money on technological equipment, as well as on online connections, which would have considerably less value for them if these pieces of equipment and services did not supply them with that same intellectual property. As a result, companies like Apple, Facebook, and Google (which owns YouTube in addition to controlling how most people surf the web) are now catastrophically huge corporations, far bigger than any publisher. So much for monoliths!

Digital Big Business

One of the many slides that raced by during Viacom’s Stanley Pierre-Louis’s address at the 2012 MPA Annual Meeting

One of the most poignant observations about this phenomenon that I’ve yet heard was a comment made during the MPA meeting by attorney Kenneth B. Anderson. Anderson has recently been retained to serve as legal counsel for a new anti-piracy initiative launched jointly by the MPA and the National Music Publishers Association (NMPA), the other member organization for music publishers based in the United States. (Anderson, whose other clients include the Beastie Boys and the Dixie Chicks, is no stranger to a challenging fight. I imagine that representing the Dixie Chicks during the radio boycott following comments made by members of the band that were critical of then President George W. Bush must have kept him busy.) Anyway, during an updated Piracy Report given by Anderson, he exclaimed, “The concept that the entertainment industry is a Goliath and that the internet industry is a David is a 180 degree reversal of reality.”

Of course, whether or not Anderson can help the MPA and the NMPA change the climate of today’s digital environment remains to be seen. But if these mostly small organizations have anything going for them against giant corporate interests it is ultimately history. The NMPA, though not as old as the MPA, dates back to 1917. Together these organizations have been around for over 200 years and presumably have weathered a great number of challenges before the internet.

Bryan Bradley perhaps had the clearest vision of how the industry needs to move forward: “You need a specific knowledge to use the products we make. We’re not selling iPads that anyone can use. If we’re to survive, we need to create more customers. We’ve got to create more musicians, people who are passionate about music. If we don’t inspire that passion, we’re shooting ourselves in the foot.”