Pro Audio Files

The Basics of Music Copyright and Publishing

Transcript
Hey folks, Matthew Weiss here — weiss-sound.com, theproaudiofiles.com, and if you’re interested in some in-depth educational resources on music production, check out weisstuts.com. That link will be in the description, and as always, if you’re enjoying the information that I’m providing here, please click that like button and hit that subscribe button. It really helps us keep doing what we’re doing.

Okay, so this tutorial is going to be about copyright. Copyright is sort of a complicated idea. It’s something that a lot of people are a little confused on or don’t know much about, and I think it’s really important that we all have a basic understanding of what it is.

I’m going to preface this by saying, I’m not a lawyer, I’m just someone who’s dealt with this stuff pretty often and knows it pretty well. So anytime you’re negotiating anything that really involves copyright, I really do recommend getting somebody who specializes in the legality of the music business and making sure that it’s done right, even if it’s a little bit of extra money on the front end, it could end up being a lot of money on the back end.

Okay. So all of that being said, what is copyright? Well, the copyright is like the deed to a property, like if you buy a home. Except for it’s the deed to intellectual property, which is sort of a unique concept, but it’s basically the idea that if I create something out of my imagination, legally speaking, it is property and I own it. I have the right to produce copy. That’s a copyright. And I own it.

Kind of cool.

The only little asterisk there is that it has to be in some tangible medium. So if I come up with lyrics for a song for example, as long as I write it down on a piece of paper or record it into my phone, or type it into an email, as long as it exists in a tangible form, that is my copyright that I am protecting.

Oh, so how do we get copyright ownership? Well, it turns out we start with it. As soon as we create something that is creative, whether it’s a lyric or a melody, or whatever it may be, we own that copyright.

The real cornerstone here is that we then might have to be able to defend and prove our ownership of copyright if somebody rips us off. This is where things like what some people call the Poor Man’s Copyright comes into play, what registering a claim with the department of copyright at copyright.gov comes into play, you don’t have to do any of those things, but it helps when it comes time if you need to settle something legally.

So the way that works is you just need to basically formulate your proof of ownership. I really recommend that you do this. So if you, for example, write song lyrics for example, recorded it into your phone, and send the recording to yourself through email, or put it onto some form of hard copy like a CD or a flash drive or something like that, and send it through the mail so that it becomes post dated and then don’t open the mail, these are all things that can help provide evidence if you need to go to court. You don’t gain your ownership by doing this, you help prove it, and that’s what’s important.

Okay, so why is copyright important at all? Well, copyright is to say that nobody can come in and take your intellectual property just as assuredly as nobody can legally walk into my home and take this microphone, unless maybe I want something out of it. Maybe somebody wants to rent my microphone?

Well in that case, I can give them permission to do it for a fee. When we collect revenue on our intellectual property, it’s called a royalty. So there’s three main departments of royalties that come through these various streams.

The first one is called a mechanical royalty. This is something that’s regulated by federal law. Right now I think it’s about 9 cents per sale of a unit. So if I write a song and I am the copyright owner, then legally speaking, whoever put that song out is required to give me 9 cents every time it sells, and that is strictly from the mechanical sale of the music, so like, a download off of iTunes, or an in-store purchase if it happens to be on CD, something like that.

The second place where it comes from is a performance royalty. A performance royalty is any public use of my copyrighted material. So that might be, say, something like a radio spin. If the song plays on the radio, I’m supposed to get approximately two cents for that. While that doesn’t seem like a lot of money, if we’re talking about something that’s getting like, 10 spins a day on 800 different radio stations and plays out for a month, well, I haven’t done the math, but you can see that it would add up.

This doesn’t just mean radio, it also means streaming on Spotify, it also means technically any time a coffee shop plays the song in a mixtape, although sometimes, that is kind of hard to keep track of, but the bottom line is we have these performance royalties, and those are managed by what’s called a performance rights organization.

Probably heard of that. If you’re a musician, you probably have one. You might not even know why. BMI, ASCAP, SESAC, those are the organizations that manage performance rights, and make sure that you get paid royalties every time your music is played.

Then the third place is a little bit unique, it’s called a sync licensing fee. It’s not a royalty, it’s a fee, and it’s when somebody wants to use your copyrighted material in say, a movie or an advertisement or a television show. This is actually up to negotiation. This is something where somebody says, “Okay, I have a budget, I would like to use your song as the opening theme to my TV show, and I have $10,000 to do it.”

And you might say, “$10,000, that’s great, I’ll take it,” or you might say, “You’re going to probably have to make it closer to $40,000, then we can talk.”

It’s really up to you, and usually in this negotiation, you are consulted and represented by your publisher, which I’m going to get into in a second. So those are our main streams of collecting revenue off of your copyright. So now, we have to talk about the logistics of all of that. Right? This is already a little complicated, but now it’s going to get even a little more complicated.

This is fairly straight forward when we are exclusively the singer, and performer, and writer on a record, but more often than not, a lot of records are a meeting of the minds, where maybe one person writes the music for the bed of the record, and another person comes in and then writes all the words that go on top of that, in which case, you might say, “Okay, for all of this copyright, I’m going to take 50%, because I did all of the music, and you’re going to have 50%, because you did all of the lyric writing, and those are valued equally.”

That’s a fairly standard negotiation. Things do tend to get a little bit dicey if there’s multiple writers on a record, or maybe one of them is more established or has better representation, maybe there’s an instrumentalist who comes in and writes just one part for the musical bed, and maybe they’re entitled to a little piece of the pie, all those things need to be negotiated, and they’re negotiated on something called a split sheet.

I highly recommend you download a split sheet, make sure you keep split sheets on hand. You want to get this stuff all out of the way, come to terms when everybody is in a friendly situation and just looking to create. Be fair to yourself, be fair to the other people you’re working with, everything will go smoothly.

But you get it down on a split sheet, and that determines where all of the royalty revenues and sync fees go once they’ve been collected into a pool, and they get distributed out based on who owns what percentage of the publishing.

Now, the second side of the logistics is that your bit of that publishing needs to be represented, because the fact is we’re not legal experts, we are people who make music. We write songs, we record songs, we produce songs. We don’t go around chasing people to make sure that we are getting paid for our publishing. That is the job of our publishing house, and so we get a representative that we assign to represent the right of our copyright.

So when we do a deal with a publishing group, you know, whether it’s BMG, or Pulse, or whatever it might be, we still own our copyright, but they represent it, and for doing that job, they are going to collect a service fee, which is fair, because it is a lot of work, and a lot of times, these publishing houses also will actively seek to sell the intellectual property usage, which helps us, because it then nets us more revenue, so even if they’re taking a little piece of it, ultimately, the pie is bigger, and so we’re getting more money in that regard.

But wait, there’s more! There’s a few other little things that I want to touch on about copyright that are pretty important to know. They’re little nuanced things that can show up in particular but very important situations.

The first is that much like actual property, you can transfer the ownership to somebody else. This is something that should be done with caution, it’s something that should be done when consulting a management company that will represent your best interests, but you can sell off part or all of your publishing to another party, and then they would own your copyright.

The second thing is that in the United States of America specifically, and some countries abroad, though not all, we use a system of licensing called fractional licensing, and this is to say that as long as there is a copyright owner, as long as they have something to do with what’s being licensed, they have say over whether or not the license takes place.

So what that means is, let’s say I’m self publishing, and I write a song with somebody else. Maybe they do the music and I do the lyrics.

So we together own 50% of this entire work. Let’s say a TV show or an advertising firm — let’s say an advertising firm — wants to then take our song and use the recorded version of the song in their advertisement. They’re going to offer a certain amount of money, or we’re going to ask for a certain amount of money, whatever it may be.

I own part of that complete work. So I have to say yes. The other person also owns part of that complete work, so in order for this licensing deal to take place, they have to also say yes. That’s extremely important.

Now, where that exception works is let’s say, in this scenario, that person wrote the music, I wrote the lyrics. Let’s say they make the offer, I’m not with it, I say no, the person who wrote the music is with it, they say yes, what the advertisement firm can say then is, “Well, since the person who owns the lyrics is saying no, can we get just the instrumental version, which they have no claim to ownership over, and license it from you?”

Well in that case, because the other person wrote all the music, they can say, “Yeah, 100% of the music is mine, so yes, you can use the music, you just can’t use the words.” But, for that complete work, the music and the lyrics, both people have to say it’s okay. That’s fractional licensing, it’s important to know that.

The third thing is something called Fair Use. There are times where our copyright ownership does not extend to the use of our material, and those are very nuanced situations, I think a lot of people don’t really understand Fair Use, and Fair Use has been — it’s negotiable. It comes up particularly with YouTube reaction videos, for example. Filming somebody reacting to a song has been declared Fair Use. It’s also being rejected by court that it’s not fair use. People just usually don’t really sue over it, but there’s a lot of nuance to that.

Fair Use generally extends to educational purposes, stands toward research purposes, archiving purposes, basically anything that doesn’t inhibit the innovation process, and inhibit the use of the material.

So there are certain particular circumstances where just because you own the copyright, doesn’t mean somebody else can’t use it. That’s important to know as well.

Anyway, that basically sums up the overview of how copyright works, this is an extremely detailed subject, but that’s basically what you need to know, so once again, if you liked this video, if you dig what I’m doing here, please hit that like button, please hit that subscribe button, and I will catch you next time.

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Matthew Weiss

Matthew Weiss

Matthew Weiss is a Grammy nominated and Spellemann Award winning audio engineer from Philadelphia. Matthew has mixed songs for Snoop, Sonny Digital, Gorilla Zoe, Uri Caine, Dizzee Rascal, Arrested Development, 9th Wonder, !llmind & more. Get in touch: Weiss-Sound.com.

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