Thursday, September 27, 2012
Recording Boot Camp
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Sunday, September 16, 2012
New Rules For The Music Industry
By George Howard & Jeff Price
(follow George on Twitter)
From TuneCore.com
*** This was a post from 2011 - just wandering if anything worked!! -KHS
FOR THE MUSIC INDUSTRY:
1) BE TRANSPARENT – No more hiding behind complex royalty calculations. Man up. Be honest. Provide clear and accurate accounting. The digital world makes it easier than ever to do this.
This applies to labels, distributors, ASCAP, BMI, SESAC and anyone else you can think of. They can all be transparent if they choose to be. Right now they choose not to be.
2) PAY ON TIME! – No more artificial royalty accounting periods. Returns and co-ops are a thing of the past. Pay out and account on one way no return sales that you have been paid in the same month you get them.
The only reason to hold on to the money is to make bank interest on it. If this is what you are going to do, see #1, BE TRANSPARENT and tell artists you are doing this.
3) NO MORE SUGARCOATING AND HIDING REALITY – Seriously. Stop promising things you know you can’t deliver. Not everyone is going to be a star. Be honest, tell the truth,. Let the musician and artist know the realities of the market so they can have a better understand of what needs to be done to succeed or why things are not going the way they want them to.
4) ACKNOWLEDGE YOU WORK FOR THE ARTIST, NOT THE OTHER WAY AROUND – Without the artist none of us will have jobs. They are the ones with the talent. They create culture and write songs that have an impact on the world. They are allowing us to serve them, not the other way around. This philosophy and culture must permeate everything you do. Turn this industry from one that “exploits” the artist to one that serves the artist.
5) ONLY OFFER SERVICES YOU CAN ACTUALLY DO – No more asking for rights or income from things you can’t contribute towards. If you are a label and want more money from other areas (i.e. merchandise, songwriter income, gig income etc) you actually have to provide a service that does something to earn that right. There are others out there that are specialists in these areas, can you do what they can?
6) UNDERSTAND THE ARTIST NOW HAS CHOICE – Unlike the old days, artists can now succeed without you. Labels have gone from a “must have” to a “might need”. Be clear in what you have to offer and create a fair and equitable deal in exchange for the services you are offering.
7) COMMERCIAL RADIO AND MTV NO LONGER SINGULARLY BREAK BANDS – It used to be that print, commercial radio and MTV were the three ways to break a band, no longer. Fans themselves have this power via social networking. Find ways to speak to fans directly and don’t use a middleman. Empower and excite them and they will follow.
FOR THE ARTIST
1) STOP ASKING FOR BIG ADVANCES – Understand that the economics of the business have changed for both the artists and the labels. The goal for artists and labels must be the same: create sustainable working relationships for both parties. Disproportionate advances only add tension (economic and otherwise) to an already tense dynamic. Create financial working relationships based on realistic expectations of ROI.
2) EDUCATE YOURSELF – It’s no longer acceptable (or charming) to be the un-informed artist who doesn’t know the difference between a mechanical royalty and a mechanic. You can’t claim that you’ve been taken advantage of by anyone at this point; the information you need is out there, and it’s not that hard to find. Learn it, once you have this knowledge you can then make informed decisions and decide if the other entity is doing its job. Not to mention, the labels etc already know this info and so should you.
3) TAKE RESPONSIBILITY – Stating that there is any person or thing standing in the way of you and success is a cop out. No longer can you say, “If only my records were in stores, people would buy them,” or, “If only people could hear my music they would love it.” The gatekeepers have vanished; the gates are open…go through them.
4) TAKE ACTION – Waiting for a booking agent before you tour? Waiting for a producer before you make a recording? Waiting for a label before you distribute or promote your music? Guess what, someone else isn’t waiting for anyone, and he or she is leaving you in the dust. The worst thing you can do is nothing.
5) SELL – Get over the fact that you’re the artist, and asking people for money in exchange for your art is awkward. The reality is that if your work is good, people will want to compensate you for it. You must not only give them the opportunity to do so, but make it easy for them. Be clear and transparent, and tell your customers that your music is valuable, and that if they want to ensure that you are able to keep creating the music that they enjoy, that they must pay for it. Then give them a wide variety of things to buy at different prices.
6) GIVE WITHOUT ASKING FOR ANYTHING IN RETURN – It’s not all selling, of course, and we are all in this together. Look for ways to help other artists. Share information, share resources. This is not a zero-sum game; the overall pie can expand, and we will all benefit proportionately when it does.
7) DEMAND ANSWERS – if you don’t understand something, ask. If the person you ask can’t give you a clear, understandable answer then he or she is either clueless or trying to hide something. Demand a clear, understandable answer or walk away from the deal.
8) MARKETING DOES NOT ALWAYS EQUAL SUCCESS – The major labels spent hundreds of millions of dollars marketing and promoting bands. Only 2% of them succeeded, the other 98% were deemed failures. If marketing = success, they would have had a 100% hit ratio. The reason an artist succeeds is because the music caused reaction.
9) LEAD TIME FOR STREET DATES MATTER LESS – It’s not like the old days where you only had a limited time for prime real estate in a retail store and if the CDs did not sell they would be returned. In the new model you can release music today, and market later, with little detrimental impact.
10) IT’S ABOUT A CONSTANT STREAM OF MUSIC AND MEDIA, NOT A ONCE A YEAR ALBUM RELEASE – The new world moves fast. The best strategy is to roll out songs, videos, pictures, blog postings, tweets and anything else you can think of on a constant basis. This keeps your fans engaged and stops you from losing momentum and going stale.
11) IT’S GLOBAL – The new music industry is a global one. At the click of a button your music is available to buy, share, stream and download around the world. Keep this in mind when you think about where your money is being held, generated and how to get it.
12) YOU ARE NOT POWERLESS – Music is not food, shelter or clothing, but everyone likes it and needs it. The music industry currently generates around $30 billion dollars a year. The entities and people getting this money is shifting from the legacy companies to you. Within another five years the collective power of you will be bigger than any of them. You have the power to change things, and you already are.
As just one example, in the past two years, TuneCore Artists have earned over $170 million in gross music sales and have sold over 400 million songs by paid download or stream. TuneCore Songwriters have earned over another $120 million dollars. As you sell more, they sell less.
13) DEFINE YOUR GOALS – Know what it is you are tying to accomplish. Are you looking to be the next Vanilla Ice or just sell some music without touring? Is your goal corporate sponsorships or having others cover your songs? Whatever it may be, have a goal in mind and then work towards accomplishing that objective. With that one conquered, you can move on to the next.
DON’T EXPECT SOMETHING FOR NOTHING
It’s going to take work to make things happen. Either you need to do the work or you must hire someone else to do part, or all of it, for you. If you understand your rights, how money is made, and how much you should make, you can make educated decisions.
Got more rules? Post them here!
(follow George on Twitter)
From TuneCore.com
*** This was a post from 2011 - just wandering if anything worked!! -KHS
FOR THE MUSIC INDUSTRY:
1) BE TRANSPARENT – No more hiding behind complex royalty calculations. Man up. Be honest. Provide clear and accurate accounting. The digital world makes it easier than ever to do this.
This applies to labels, distributors, ASCAP, BMI, SESAC and anyone else you can think of. They can all be transparent if they choose to be. Right now they choose not to be.
2) PAY ON TIME! – No more artificial royalty accounting periods. Returns and co-ops are a thing of the past. Pay out and account on one way no return sales that you have been paid in the same month you get them.
The only reason to hold on to the money is to make bank interest on it. If this is what you are going to do, see #1, BE TRANSPARENT and tell artists you are doing this.
3) NO MORE SUGARCOATING AND HIDING REALITY – Seriously. Stop promising things you know you can’t deliver. Not everyone is going to be a star. Be honest, tell the truth,. Let the musician and artist know the realities of the market so they can have a better understand of what needs to be done to succeed or why things are not going the way they want them to.
4) ACKNOWLEDGE YOU WORK FOR THE ARTIST, NOT THE OTHER WAY AROUND – Without the artist none of us will have jobs. They are the ones with the talent. They create culture and write songs that have an impact on the world. They are allowing us to serve them, not the other way around. This philosophy and culture must permeate everything you do. Turn this industry from one that “exploits” the artist to one that serves the artist.
5) ONLY OFFER SERVICES YOU CAN ACTUALLY DO – No more asking for rights or income from things you can’t contribute towards. If you are a label and want more money from other areas (i.e. merchandise, songwriter income, gig income etc) you actually have to provide a service that does something to earn that right. There are others out there that are specialists in these areas, can you do what they can?
6) UNDERSTAND THE ARTIST NOW HAS CHOICE – Unlike the old days, artists can now succeed without you. Labels have gone from a “must have” to a “might need”. Be clear in what you have to offer and create a fair and equitable deal in exchange for the services you are offering.
7) COMMERCIAL RADIO AND MTV NO LONGER SINGULARLY BREAK BANDS – It used to be that print, commercial radio and MTV were the three ways to break a band, no longer. Fans themselves have this power via social networking. Find ways to speak to fans directly and don’t use a middleman. Empower and excite them and they will follow.
FOR THE ARTIST
1) STOP ASKING FOR BIG ADVANCES – Understand that the economics of the business have changed for both the artists and the labels. The goal for artists and labels must be the same: create sustainable working relationships for both parties. Disproportionate advances only add tension (economic and otherwise) to an already tense dynamic. Create financial working relationships based on realistic expectations of ROI.
2) EDUCATE YOURSELF – It’s no longer acceptable (or charming) to be the un-informed artist who doesn’t know the difference between a mechanical royalty and a mechanic. You can’t claim that you’ve been taken advantage of by anyone at this point; the information you need is out there, and it’s not that hard to find. Learn it, once you have this knowledge you can then make informed decisions and decide if the other entity is doing its job. Not to mention, the labels etc already know this info and so should you.
3) TAKE RESPONSIBILITY – Stating that there is any person or thing standing in the way of you and success is a cop out. No longer can you say, “If only my records were in stores, people would buy them,” or, “If only people could hear my music they would love it.” The gatekeepers have vanished; the gates are open…go through them.
4) TAKE ACTION – Waiting for a booking agent before you tour? Waiting for a producer before you make a recording? Waiting for a label before you distribute or promote your music? Guess what, someone else isn’t waiting for anyone, and he or she is leaving you in the dust. The worst thing you can do is nothing.
5) SELL – Get over the fact that you’re the artist, and asking people for money in exchange for your art is awkward. The reality is that if your work is good, people will want to compensate you for it. You must not only give them the opportunity to do so, but make it easy for them. Be clear and transparent, and tell your customers that your music is valuable, and that if they want to ensure that you are able to keep creating the music that they enjoy, that they must pay for it. Then give them a wide variety of things to buy at different prices.
6) GIVE WITHOUT ASKING FOR ANYTHING IN RETURN – It’s not all selling, of course, and we are all in this together. Look for ways to help other artists. Share information, share resources. This is not a zero-sum game; the overall pie can expand, and we will all benefit proportionately when it does.
7) DEMAND ANSWERS – if you don’t understand something, ask. If the person you ask can’t give you a clear, understandable answer then he or she is either clueless or trying to hide something. Demand a clear, understandable answer or walk away from the deal.
8) MARKETING DOES NOT ALWAYS EQUAL SUCCESS – The major labels spent hundreds of millions of dollars marketing and promoting bands. Only 2% of them succeeded, the other 98% were deemed failures. If marketing = success, they would have had a 100% hit ratio. The reason an artist succeeds is because the music caused reaction.
9) LEAD TIME FOR STREET DATES MATTER LESS – It’s not like the old days where you only had a limited time for prime real estate in a retail store and if the CDs did not sell they would be returned. In the new model you can release music today, and market later, with little detrimental impact.
10) IT’S ABOUT A CONSTANT STREAM OF MUSIC AND MEDIA, NOT A ONCE A YEAR ALBUM RELEASE – The new world moves fast. The best strategy is to roll out songs, videos, pictures, blog postings, tweets and anything else you can think of on a constant basis. This keeps your fans engaged and stops you from losing momentum and going stale.
11) IT’S GLOBAL – The new music industry is a global one. At the click of a button your music is available to buy, share, stream and download around the world. Keep this in mind when you think about where your money is being held, generated and how to get it.
12) YOU ARE NOT POWERLESS – Music is not food, shelter or clothing, but everyone likes it and needs it. The music industry currently generates around $30 billion dollars a year. The entities and people getting this money is shifting from the legacy companies to you. Within another five years the collective power of you will be bigger than any of them. You have the power to change things, and you already are.
As just one example, in the past two years, TuneCore Artists have earned over $170 million in gross music sales and have sold over 400 million songs by paid download or stream. TuneCore Songwriters have earned over another $120 million dollars. As you sell more, they sell less.
13) DEFINE YOUR GOALS – Know what it is you are tying to accomplish. Are you looking to be the next Vanilla Ice or just sell some music without touring? Is your goal corporate sponsorships or having others cover your songs? Whatever it may be, have a goal in mind and then work towards accomplishing that objective. With that one conquered, you can move on to the next.
DON’T EXPECT SOMETHING FOR NOTHING
It’s going to take work to make things happen. Either you need to do the work or you must hire someone else to do part, or all of it, for you. If you understand your rights, how money is made, and how much you should make, you can make educated decisions.
Got more rules? Post them here!
A Walk-Through: Sampling
George Howard is the Executive Vice President
of Wolfgang’s Vault. Wolfgang’s Vault is the parent company of Concert
Vault, Paste Magazine, and Daytrotter. Mr. Howard is an Associate
Professor of Management at Berklee College of Music.
By George Howard
(Follow George on Twitter)
I’ll be writing a periodic set of articles all designed to present the necessary information to make complex topics in the music business more easily understood—”walk-throughs,” if you will. The first in the series is a walk through on sampling.
I chose this topic because it allows us to view an action—sampling—which requires an understanding of an array of music business elements. As such, I’m able to introduce several important concepts at the same time. Even if you yourself are an artist who does not sample, it’s important to understand the process because someone may desire to sample your music.
First, a definition. Sampling is the act of inserting a portion of another work into your work. For instance, Vanilla Ice inserted the bass line from the David Bowie/Queen composition “Under Pressure” into his song “Ice, Ice, Baby.” As such, Vanilla Ice sampled David Bowie/Queen’s song.
Whenever you question whether something is allowable in the music business, you should always begin with examining the bundle of rights that are automatically granted to copyright holders upon the creation and fixation (writing down or recording) of an original work of authorship. For a primer on this, please refer to this handy guide.
Ok, let’s take a look.
First things first, should you desire to insert the copyrighted work of another artist into your own work (i.e. sample their work), you immediately bump into that artist’s exclusive right to create derivative works. This—the right to create derivatives—is one of the six rights conferred on copyright holders. What this means is that only the copyright holder can do things like: make a translation of their song, create a screenplay of their song, and—most relevant here—create a new song that is in any way derived from the original composition. So, inserting a portion of someone else’s work—however short that insertion might be—is deemed to be creating a new work derived from another work. Only the copyright holder of the original work can do this without infringing upon another’s copyright.
What this means is that should you desire to sample someone else’s work in a song you have written, you must go to the copyright holder(s), and seek permission to do so. Similarly, should someone desire to sample your work in one of their songs, they must come to you. Fair is fair, right?
In terms of what type of deal you must strike with this person (or, they with you), there is no compulsory rate. In other words, unlike, for example, when you want to cover someone’s song, and can rely on the compulsory license statute, which establishes the rules (including what you must pay the copyright holder of the song you cover), no such statute exists with respect to derivative works; it’s a purely negotiated dynamic. The person who controls the copyright you desire to sample in your work can grant you the right to create a derivative for free or for whatever fee the market will bear, or just say no, and, thus, keep you from sampling the work at all.
Of course, the same rules apply to you when someone wants to sample your work. This is reasonable. Imagine someone wants to use your work in their work, but you feel their doing so would present your work (and, by extension, you) in a way that you’re not comfortable with—you wouldn’t want them to be able to just do it anyway. Similarly, if you are the copyright holder of a very popular song, and someone who is less well-known wants to sample your work in their song (I’m looking at you P-Diddy), you might reasonably feel that this artist is reaping disproportionate benefit from your song; in other words, the popularity of “their” song is contingent upon the established popularity of your work. In this case, you would want to be compensated in such a way so as to not feel that the artist sampling your work is free-riding, and being unjustly enriched. By not having a compulsory rate, you are able to do this.
Before we move on to further details with respect to compensation, let’s pull back and examine what exactly is being sampled. For every song there are two copyrights: the copyright in the composition itself (represented by the (c) symbol), and the copyright in the sound recording of the song—frequently referred to as the “master;” this is the recording/version of the song that is on a CD or download (it is represented by the (P) symbol). While the songwriter or the songwriter’s publisher is typically the copyright owner of the composition (the (c)); the sound recording (the (P)) is typically owned/controlled by the label who releases the record/CD/download. Of course, if the songwriter releases the work himself/herself he/she would be the owner of both the (c) and the (p).
Both the (c) holder and the (p) holder have the exclusive right to create derivative works, and so it’s not only the writer of the song (the (c) holder) that you must obtain permission to create derivatives from, but also the copyright holder of the sound recording/master (the (p) holder)—again, typically the label.
Either party can say no, and either party can negotiate whatever deal with you that they want. Frequently, these deals are “Most Favored Nations” (MFN), meaning that whatever deal is struck with one party (the (c) holder, for example) must also be struck with the other party (the (p) holder).
The copyright holder to the composition (the (c) holder) is the dispositive party. That is, if the (c) holder denies the usage, it’s game over. If, on the other hand, the (c) holder agrees to the usage, but the copyright holder of the sound recording (the (p) holder—typically, the label) says “no,” the person desiring the sample can re-record the sample, and, thereby, bypass the (p) holder.
Obtaining permission from the rights holders to create a derivative work is the first step, but, again referring to the six rights the (c) holder(s) are conferred with, we see that there are other steps that must be taken.
Simply having the right to create a derivative, and, thus, include a sample of someone else’s work in your work, doesn’t do you much good if you can’t exploit (sell) it. In order to sell you must have the right to do at least two other things that—unless a deal is struck with the copyright holder—only the copyright holder has the right to do: reproduce and distribute the work.
The rights to reproduce and distribute a work are, of course, essential to selling that work. Labels that desire to reproduce and distribute the copyrighted works of a songwriter on the label’s releases do so via a “mechanical license.” Therefore, when a sample is inserted into a song, unless the copyright holder(s) of the sample waives their rights with respect to reproduction and distribution (and, why would they?) the copyright holder(s) of the sampled work must be paid for the reproduction and distribution of the work.
Typically, what occurs is that as part of the deal that “clears” the sample—i.e. outlines things like the right to create a derivative work—details concerning royalties associated with reproduction and distribution are also addressed. These are negotiated, and — like the terms for the use of the sample—are determined by what the market will bear, but the normal scenario is that the person using the sample gives up some or all of the mechanical royalties to the writer of the original composition. Note, that a “synchronization”—the use of a song combined with an image; such as in a movie or TV show—also triggers reproduction and distribution issues, and must be addressed in these deals. In short, if your work is sampled in a song, and that song is used in a movie or TV show, you should get paid when that movie is reproduced/distributed.
The last element to consider with respect to rights/income and samples is public performance. The exclusive right to public performance (both in the composition (the (c)) and the sound recording (the (p)) are exclusive to the writer and the master holder. As such, when the writer and master holder’s works are publicly performed as part of the song that sampled them (that is, when a song that has a sample in it is played on the radio, streamed online, performed live in front of an audience, or, in any manner, publicly performed) performance royalties are owed. In all cases, a public performance royalty is owed to the copyright holder of the composition (the (c)), and in the case of non-interactive digital streams (such as internet radio, Pandora, or satellite radio), a public performance royalty is due to the master holder and featured performer. The payments to the the songwriter are made via Performance Rights Organizations, such as ASCAP, BMI, or SESAC. The payments to the master holder/featured performer are made via SoundExchange.
As you can see, the use of another’s work as part of a new work (a sample) triggers a vast array of rights issues. While—from the point of view of someone who desires to sample someone else’s work—this may seem extreme, from the other viewpoint—that of someone sampling your work—it should give you assurance that you have both control (via the ability to exclusively control whether or not a derivative of your work can be created) and compensation (via your exclusive rights related to distribution, reproduction, and public performance).
For those who feel that having their work sampled is beneficial from a promotional standpoint, and want to facilitate/encourage the use of their works as samples, they can utilize a Creative Commons license that allows the copyright holder to opt out of certain elements of their copyright bundle. For example, they could allow the creation of derivative works, and/or reproduction/distribution with few (attribution, for example) or no conditions. I suggested in a prior article that perhaps another way forward is to create a compulsory license for samples under a certain length (similar to the compulsory license rules around covers).
Certainly, there can be benefits to having your work sampled, as there can be benefits to sampling the work of others—in terms of revenue and awareness—and songwriters/master holders need to understand them, and, if they choose, attempt to maximize their value.
My hope is that, via this article, both those who desire to sample, and those who have their work sampled see that there is a system in place (however effective/efficient it may or may not be), and that the system is rooted in the same copyright law that governs all elements of the music business. To that end, if you understand this article, you’ve gone a long way in understanding the music business generally.
A Walk-Through: Sampling
By George Howard
(Follow George on Twitter)
I’ll be writing a periodic set of articles all designed to present the necessary information to make complex topics in the music business more easily understood—”walk-throughs,” if you will. The first in the series is a walk through on sampling.
I chose this topic because it allows us to view an action—sampling—which requires an understanding of an array of music business elements. As such, I’m able to introduce several important concepts at the same time. Even if you yourself are an artist who does not sample, it’s important to understand the process because someone may desire to sample your music.
First, a definition. Sampling is the act of inserting a portion of another work into your work. For instance, Vanilla Ice inserted the bass line from the David Bowie/Queen composition “Under Pressure” into his song “Ice, Ice, Baby.” As such, Vanilla Ice sampled David Bowie/Queen’s song.
Whenever you question whether something is allowable in the music business, you should always begin with examining the bundle of rights that are automatically granted to copyright holders upon the creation and fixation (writing down or recording) of an original work of authorship. For a primer on this, please refer to this handy guide.
Ok, let’s take a look.
First things first, should you desire to insert the copyrighted work of another artist into your own work (i.e. sample their work), you immediately bump into that artist’s exclusive right to create derivative works. This—the right to create derivatives—is one of the six rights conferred on copyright holders. What this means is that only the copyright holder can do things like: make a translation of their song, create a screenplay of their song, and—most relevant here—create a new song that is in any way derived from the original composition. So, inserting a portion of someone else’s work—however short that insertion might be—is deemed to be creating a new work derived from another work. Only the copyright holder of the original work can do this without infringing upon another’s copyright.
What this means is that should you desire to sample someone else’s work in a song you have written, you must go to the copyright holder(s), and seek permission to do so. Similarly, should someone desire to sample your work in one of their songs, they must come to you. Fair is fair, right?
In terms of what type of deal you must strike with this person (or, they with you), there is no compulsory rate. In other words, unlike, for example, when you want to cover someone’s song, and can rely on the compulsory license statute, which establishes the rules (including what you must pay the copyright holder of the song you cover), no such statute exists with respect to derivative works; it’s a purely negotiated dynamic. The person who controls the copyright you desire to sample in your work can grant you the right to create a derivative for free or for whatever fee the market will bear, or just say no, and, thus, keep you from sampling the work at all.
Of course, the same rules apply to you when someone wants to sample your work. This is reasonable. Imagine someone wants to use your work in their work, but you feel their doing so would present your work (and, by extension, you) in a way that you’re not comfortable with—you wouldn’t want them to be able to just do it anyway. Similarly, if you are the copyright holder of a very popular song, and someone who is less well-known wants to sample your work in their song (I’m looking at you P-Diddy), you might reasonably feel that this artist is reaping disproportionate benefit from your song; in other words, the popularity of “their” song is contingent upon the established popularity of your work. In this case, you would want to be compensated in such a way so as to not feel that the artist sampling your work is free-riding, and being unjustly enriched. By not having a compulsory rate, you are able to do this.
Before we move on to further details with respect to compensation, let’s pull back and examine what exactly is being sampled. For every song there are two copyrights: the copyright in the composition itself (represented by the (c) symbol), and the copyright in the sound recording of the song—frequently referred to as the “master;” this is the recording/version of the song that is on a CD or download (it is represented by the (P) symbol). While the songwriter or the songwriter’s publisher is typically the copyright owner of the composition (the (c)); the sound recording (the (P)) is typically owned/controlled by the label who releases the record/CD/download. Of course, if the songwriter releases the work himself/herself he/she would be the owner of both the (c) and the (p).
Both the (c) holder and the (p) holder have the exclusive right to create derivative works, and so it’s not only the writer of the song (the (c) holder) that you must obtain permission to create derivatives from, but also the copyright holder of the sound recording/master (the (p) holder)—again, typically the label.
Either party can say no, and either party can negotiate whatever deal with you that they want. Frequently, these deals are “Most Favored Nations” (MFN), meaning that whatever deal is struck with one party (the (c) holder, for example) must also be struck with the other party (the (p) holder).
The copyright holder to the composition (the (c) holder) is the dispositive party. That is, if the (c) holder denies the usage, it’s game over. If, on the other hand, the (c) holder agrees to the usage, but the copyright holder of the sound recording (the (p) holder—typically, the label) says “no,” the person desiring the sample can re-record the sample, and, thereby, bypass the (p) holder.
Obtaining permission from the rights holders to create a derivative work is the first step, but, again referring to the six rights the (c) holder(s) are conferred with, we see that there are other steps that must be taken.
Simply having the right to create a derivative, and, thus, include a sample of someone else’s work in your work, doesn’t do you much good if you can’t exploit (sell) it. In order to sell you must have the right to do at least two other things that—unless a deal is struck with the copyright holder—only the copyright holder has the right to do: reproduce and distribute the work.
The rights to reproduce and distribute a work are, of course, essential to selling that work. Labels that desire to reproduce and distribute the copyrighted works of a songwriter on the label’s releases do so via a “mechanical license.” Therefore, when a sample is inserted into a song, unless the copyright holder(s) of the sample waives their rights with respect to reproduction and distribution (and, why would they?) the copyright holder(s) of the sampled work must be paid for the reproduction and distribution of the work.
Typically, what occurs is that as part of the deal that “clears” the sample—i.e. outlines things like the right to create a derivative work—details concerning royalties associated with reproduction and distribution are also addressed. These are negotiated, and — like the terms for the use of the sample—are determined by what the market will bear, but the normal scenario is that the person using the sample gives up some or all of the mechanical royalties to the writer of the original composition. Note, that a “synchronization”—the use of a song combined with an image; such as in a movie or TV show—also triggers reproduction and distribution issues, and must be addressed in these deals. In short, if your work is sampled in a song, and that song is used in a movie or TV show, you should get paid when that movie is reproduced/distributed.
The last element to consider with respect to rights/income and samples is public performance. The exclusive right to public performance (both in the composition (the (c)) and the sound recording (the (p)) are exclusive to the writer and the master holder. As such, when the writer and master holder’s works are publicly performed as part of the song that sampled them (that is, when a song that has a sample in it is played on the radio, streamed online, performed live in front of an audience, or, in any manner, publicly performed) performance royalties are owed. In all cases, a public performance royalty is owed to the copyright holder of the composition (the (c)), and in the case of non-interactive digital streams (such as internet radio, Pandora, or satellite radio), a public performance royalty is due to the master holder and featured performer. The payments to the the songwriter are made via Performance Rights Organizations, such as ASCAP, BMI, or SESAC. The payments to the master holder/featured performer are made via SoundExchange.
As you can see, the use of another’s work as part of a new work (a sample) triggers a vast array of rights issues. While—from the point of view of someone who desires to sample someone else’s work—this may seem extreme, from the other viewpoint—that of someone sampling your work—it should give you assurance that you have both control (via the ability to exclusively control whether or not a derivative of your work can be created) and compensation (via your exclusive rights related to distribution, reproduction, and public performance).
For those who feel that having their work sampled is beneficial from a promotional standpoint, and want to facilitate/encourage the use of their works as samples, they can utilize a Creative Commons license that allows the copyright holder to opt out of certain elements of their copyright bundle. For example, they could allow the creation of derivative works, and/or reproduction/distribution with few (attribution, for example) or no conditions. I suggested in a prior article that perhaps another way forward is to create a compulsory license for samples under a certain length (similar to the compulsory license rules around covers).
Certainly, there can be benefits to having your work sampled, as there can be benefits to sampling the work of others—in terms of revenue and awareness—and songwriters/master holders need to understand them, and, if they choose, attempt to maximize their value.
My hope is that, via this article, both those who desire to sample, and those who have their work sampled see that there is a system in place (however effective/efficient it may or may not be), and that the system is rooted in the same copyright law that governs all elements of the music business. To that end, if you understand this article, you’ve gone a long way in understanding the music business generally.
Thursday, September 13, 2012
PSP Radio One Widget
http://pspradioone.Caster.fm/
[url=http://pspradioone.Caster.fm] Visit my Radio Website [/url]
Sunday, September 9, 2012
13 Indaba Members were released on the first crowdsourced eBook soundtrack through the Booktrack Opportunity
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