Tag: performance rights

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

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.
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Blogging MIDEM 2012: Getting Paid vs. Getting Played

If the opening salvos of MIDEM 2012 on Saturday seemed to be dominated by technology and internet-based content aggregators, throughout Sunday and Monday (thus far at least) I witnessed a great deal of talk back from various content creators and their representatives who are not particularly happy with the emerging music industry paradigms and are seeking to find a third path.

The Commerce or Chaos Panel

The Commerce or Chaos Panel (left to right): Pierre-Marie Bouvery, Paul McGuinness, Roxanne Frias (moderator), Robert Levine, Yves Riesel

Sunday morning at 10:00 a.m., I attended a press conference with the provocative moniker “Commerce or Chaos.” Among the speakers was Principle Management’s Managing Director Paul McGuinness (who reps, among many others, the band U2) who expressed astonishment at the “extraordinary greed” of technology companies including ISPs and manufacturers, “Why are they not more far-sighted and generous? Why are they not trying to solve this?” At the same time he acknowledged from an audio perspective that the overall “low quality of internet music is an accidental conspiracy.”

Yves Riesel, president of an internet-based music company called Qobuz which purports to have a more equitable remuneration model as well as to be the first and only CD quality audio download service, countered that the problem is that most web and tech initiatives did not originate with folks from the music sector: “There is no love of music in these tech companies. There is no one in charge of classical music in France for iTunes; just one person for all of Europe.” He also stated that standards for the quality of metadata should be included in copyright protection. French entertainment lawyer Pierre-Marie Bouvery pointed out that despite the current anti-copyright rhetoric of people who claim to be representing free speech, copyright has never been something against free speech. Rather these anti-copyright positions are ultimately about ensuring that regulations are not imposed on big businesses which have been reaping huge financial benefits from an environment without any kind of regulation. Perhaps the most outspoken panelist, however, was Robert Levine, the German-based American author of a bestselling 2011 book called Free Ride that is highly critical of internet business practices. He explained that over the last decade his opinions about the online sphere have changed considerably. Whereas once he believed it could give individuals more control and was therefore an unequivocally positive environment, now he’s far more skeptical.

These technologies are not giving bands more control; they’re giving technology companies more control. The issue [of having a completely unregulated internet] has been framed as the “people” vs. “the man,” but look and see what side the big companies are on regarding this issue.

He acknowledged that as a freelance journalist, his own efforts to receive remuneration as a content creator are diminished by news aggregating blogs which he described as inherently parasitic, which is why he feels empathy for music creators. He was unabashedly blunt in his criticism of Creative Commons (which only has one artist on its fifteen-member board) and Google, particularly Google’s tactics in lobbying the United States congress against SOPA (the recently defeated Stop Online Piracy Act), a campaign on which Google spent some $11 million according to Open Secrets (which he pointed out was far in excess of the $2.6 million spent by MPAA in pro-SOPA lobbying). Plus, in addition to their placement of an anti-SOPA banner on the Google homepage, Wikipedia’s blackout day suspiciously occurred right after they had been given a $2 million donation from Google. According to Levine, “If NBC put a banner on their screen supporting SOPA everyone would have been outraged, but no one was outraged by Google using their homepage to promote an anti-SOPA position.”

In the afternoon I attended a session about performers’ incomes in a digital economy (in French, but luckily there were headphones for instant translation). The session featured a group of four speakers, all of whom work for SPEDIDAM, a performing rights society that collects revenue for recording artists—roughly the French version of Sound Exchange in the USA. According to SPEDIDAM’s estimates, there should be a remuneration of somewhere between 4 to 9.5 euros per household per month to account for internet usage of music, but that obtaining such remuneration will ultimately have to occur as a result of governmental legislation. At the same time, it was pointed out that the current, mostly non-remunerative system for recording artists is largely the fault of the major record labels, who were interested in maximize corporate profits rather than sharing revenue and, in the old paradigm, rarely gave recording artists fair remuneration. According to SPEDIDAM’s President Jean-Paul Bazin:

The system of making recordings is tantamount to blackmail to performers. Producers and labels own everything. It is important to remember that the record industry wants to keep this money for themselves. […] The wrong choices were made by industrialists who refused to make their catalogs available in new platforms.

The Nordic Bar

Never a dull moment at the Nordic Bar.

After all the talk about economic inequities between individuals and large corporations, my brain was reeling. Luckily at around 4:00 p.m., there were parties at exhibition stands with various countries offering regional drinks and foods. The Nordic countries (Denmark, Norway, Sweden, and Finland) pooled their resources for some really nice offerings—Swedish meatballs and bottles of beer, but the Czech republic was offering the herbal liqueur Becherovka with delicious sausages. The Belgians lured folks to their area with various lambics, but Switzerland perhaps gets top prize for serving white wine made from a nearly extinct Swiss grape called Heida along with the requisite fondue.

The evening, however, belonged to Singapore, at least for me. This was the first year that Singapore has ever participated in MIDEM and from while I was still in New York City, they were already lobbying hard for me to attend the first-ever showcase of Singaporean bands during MIDEM at a local club named DaDaDa. So I did and I brought along with me representatives from music information centres from Canada, Ireland, the Netherlands, Slovakia, and Greece. We were regaled with a succession of six different bands. Randolf Arriola performed one-man-band versions of some trippy, drony originals as well as a cover of Phil Collins’s “In the Air Tonight.” If that lulled anyone into a dream state, they were quickly awoken by a phenomenal percussion group called Wicked Aura Batucada that had at least 12 players (it was hard to tell) and a lead singer who had a penchant for climbing up on the bar while singing.

Singapore Showcase

Wicked Aura Batucada proves that Singapore ROCKS!!!

There was even some Singaporean rap, from a group called SIXX. It was quite hard to catch the words, but at one point I thought I heard, “It’s contagious; it’s outrageous.” Indeed. Most of it seemed to have nothing to do with the traditions of Singapore, which is comprised of a large percentage of ethnic Chinese and Malays, but most of the bands were very integrated between these two groups and at one point Kewei, a female singer who performed with several of the bands, pulled out what sounded like an erhu and played a dizzyingly virtuoso solo for about a minute. The show came to an end with a brief set by Zero Sequence, which claims to be the only progressive rock band in Singapore. They’re quite an elaborate outfit which unabashedly carries on the legacy of mid-1970s British prog. Although according to their manager who spoke with me earlier in the day, the band members are also fans of American bands like Nirvana and Smashing Pumpkins. To bring the set to a rousing conclusion, one of the band members conducted the rest of the group in a bombastic cadence. Following their closing note, I wandered back to my hotel in the pouring rain in order to catch a few hours of sleep before it all started again this morning.