Third, the publisher must register the songs to be published with the Copyright Office in Washington, D.C. in the name of the publishing entity. If the songs have already been copyrighted under the name of the writer, assignments need to be filed which transfer the ownership of the songs to the name of the publisher.
Fourth, it is advisable to affiliate with the Harry Fox Agency in New York. For a small percentage fee, the Harry Fox Agency acts as the publisher's agent to issue mechanical licenses (which allow others to record the songs), collects the mechanical royalties, and accounts to the publisher.
Finally, if the artist ends up signing a record deal, third party publishers (major or indie) will then want to become the publisher (or co-pubisher) because a record deal almost always ensures that the songs will generate some income. By acting as his or her own publisher, this does not mean that the writer cannot one day be published (or co-published) by a larger, more established publishing company in exchange for an advance and better promotion of the songs. The writer simply has to assign the publishing (or part of it) over to the major or indie publisher.
In conclusion, if an artist is planning to release his or her own record and is without a publisher, forming a publishing company might be advisable and the above-mentioned steps should be helpful in doing so.
Ben McLane Esq
benmclane.com
Monday, June 13, 2011
Monday, June 6, 2011
Music Business/Law Tips - "Publishing Company" (Part 1)
The area of the music business known as publishing can be very lucrative. Because of the income potential, many writers form their own publishing companies. Some writers do this in order to "keep their publishing," while others do so because the established publishing companies have shown no interest. However, getting published means nothing if the songs are not recorded or exploited in some other way. Thus, If a writer is also an artist that has an independent record coming out, or has a song being used in a film or on television, the writer should consider forming a publishing company.
It is easy to form a publishing company assuming that there is a record coming out or if a film or television show is using one of the writer's songs. First, the writer must affiliate with ASCAP, BMI or SESAC. (All 3 if the writer intends to publish other writer's songs as well.) The reason for joining is that these rights societies pay the publisher performance royalties if the songs are played on radio, television, etc. These societies will not let a publisher use a name which is similar to an existing company because the wrong party might be paid accidentally. An uncommon name should be selected for the company so that the name will clear. If the publisher is also a writer that has not yet affiliated with either SESAC, BMI or ASCAP, he or she should affiliate as a writer with one of the three societies at the same time as joining as a publisher. Because the societies require that the song's publisher be affiliated with the same society as the song's writer, the publisher will have to affiliate as a publisher with the same society joined as a writer. Part of the registration process will involve registering all songs written by the writer with the performance rights society selected.
If the publishing entity will not be operating as a corporation or LLC, the second step is to file a "fictitious name statement" with the county recorder. This puts the public on notice that the publisher is doing business under a name that is different from the writer's surname. In California, this statement is necessary in order to open a bank account, and to cash checks made out to that name.
[more next time]
Ben McLane Esq
benmclane.com
It is easy to form a publishing company assuming that there is a record coming out or if a film or television show is using one of the writer's songs. First, the writer must affiliate with ASCAP, BMI or SESAC. (All 3 if the writer intends to publish other writer's songs as well.) The reason for joining is that these rights societies pay the publisher performance royalties if the songs are played on radio, television, etc. These societies will not let a publisher use a name which is similar to an existing company because the wrong party might be paid accidentally. An uncommon name should be selected for the company so that the name will clear. If the publisher is also a writer that has not yet affiliated with either SESAC, BMI or ASCAP, he or she should affiliate as a writer with one of the three societies at the same time as joining as a publisher. Because the societies require that the song's publisher be affiliated with the same society as the song's writer, the publisher will have to affiliate as a publisher with the same society joined as a writer. Part of the registration process will involve registering all songs written by the writer with the performance rights society selected.
If the publishing entity will not be operating as a corporation or LLC, the second step is to file a "fictitious name statement" with the county recorder. This puts the public on notice that the publisher is doing business under a name that is different from the writer's surname. In California, this statement is necessary in order to open a bank account, and to cash checks made out to that name.
[more next time]
Ben McLane Esq
benmclane.com
Monday, May 23, 2011
Music Business/Law Tips - "Performance Royalty" (Part 2)
BMI, ASCAP and SESAC represent both songwriters and publishers. It should be noted that even where a songwriter is represented by a third party publisher, that songwriter needs to also join a society because songwriters and publishers are paid separately by the societies. One would normally join when they have a song being performed in some medium (i.e., radio, tv, internet). As for which organization is best, each songwriter will have to decide that for themselves because it is difficult to say with certainty which society pays more. BMI, ASCAP and SESAC all have websites and will be happy to send out information brochures to interested applicants.
Choosing a performing rights society is an important decision for a songwriter to make because if a song ever becomes a hit, the performance royalties can be substantial. Thus, any serious writer should find out about affiliating with either BMI, ASCAP or SESAC.
Ben McLane Esq
benmclane.com
Choosing a performing rights society is an important decision for a songwriter to make because if a song ever becomes a hit, the performance royalties can be substantial. Thus, any serious writer should find out about affiliating with either BMI, ASCAP or SESAC.
Ben McLane Esq
benmclane.com
Monday, May 16, 2011
Music Business/Law Tips - "Performance Royalty" (Part 1)
There are several ways that songwriters can make money in the music business. One of the most significant is from royalties generated by the public performance of their songs. These royalties result from what are called "performance rights".
In the United States, "performance royalties" are paid out mainly by three performance rights societies, BMI, ASCAP and SESAC (most foreign countries also have their own societies). Under the copyright law, a songwriter controls the public performance of that songwriter's songs. In essence, a songwriter designates either BMI, ASCAP or SESAC as his or her agent for the public performance rights of that songwriter's songs. A songwriter can only affiliate with one society at a time. BMI, ASCAP and SESAC have arrangements with the parties - such as radio, television, concert venues, restaurants, etc. (essentially any user who performs music publicly) - who want to use the songs in the societies respective catalogs. For a licensing fee, BMI, ASCAP or SESAC will grant to that user what is called a "blanket license", which means that the user can play any song, by any songwriter or publisher affiliated with that society, any number of times. It must be stressed that fees are collected from the entity or venue user, not from any actual performer.
The money earned by a songwriter from the societies (i.e., the performance royalty) is proportionate to the volume of airplay or performances of the songwriter's songs. Performance royalties are based on extremely complicated formulas. Basically, however, the societies monitor radio and television airplay to determine how often a song is heard and by how many people. The larger the audience and the more times a song is played, the more the income. Since it is impossible to cover all media outlets, BMI, ASCAP and SESAC rely on estimates based upon samples as well as data tracking software. After deducting operating expenses, the societies divide the fees up and pay it to their affiliated writers and publishers. The societies pay quarterly.
[part 2 next time]
Ben McLane Esq
benmclane.com
In the United States, "performance royalties" are paid out mainly by three performance rights societies, BMI, ASCAP and SESAC (most foreign countries also have their own societies). Under the copyright law, a songwriter controls the public performance of that songwriter's songs. In essence, a songwriter designates either BMI, ASCAP or SESAC as his or her agent for the public performance rights of that songwriter's songs. A songwriter can only affiliate with one society at a time. BMI, ASCAP and SESAC have arrangements with the parties - such as radio, television, concert venues, restaurants, etc. (essentially any user who performs music publicly) - who want to use the songs in the societies respective catalogs. For a licensing fee, BMI, ASCAP or SESAC will grant to that user what is called a "blanket license", which means that the user can play any song, by any songwriter or publisher affiliated with that society, any number of times. It must be stressed that fees are collected from the entity or venue user, not from any actual performer.
The money earned by a songwriter from the societies (i.e., the performance royalty) is proportionate to the volume of airplay or performances of the songwriter's songs. Performance royalties are based on extremely complicated formulas. Basically, however, the societies monitor radio and television airplay to determine how often a song is heard and by how many people. The larger the audience and the more times a song is played, the more the income. Since it is impossible to cover all media outlets, BMI, ASCAP and SESAC rely on estimates based upon samples as well as data tracking software. After deducting operating expenses, the societies divide the fees up and pay it to their affiliated writers and publishers. The societies pay quarterly.
[part 2 next time]
Ben McLane Esq
benmclane.com
Thursday, April 28, 2011
Music Business/Law Tips - "Name" (Part 2)
B. There could be a question as to who owns the name between two, or more, different groups who all perform under the same name. The actual ownership is usually decided by which artist performed under (i.e., used) the name first. However, there is a legal term called "secondary meaning" which could override first use. A secondary meaning is when the public identifies a name with a particular artist. The Rolling Stones are a good example. There is no question as to who this name refers to. It could be that another act using the name the Rolling Stones was around first, but the public identification is with the famous group. If the artist is just starting out and finds itself in a situation where there is a rival claim to the name, it is probably better to change the name early on to avoid legal hassles.
C. There could be a question as to who owns the name between the members of a group. This becomes a problem if a member leaves or the group breaks up. It is advisable for the group to enter into a partnership agreement, or form a corporation, so that this issue is dealt with in advance.
An artist should also be wary of any record label that attempts in the contract to have ownership rights in the name transferred to the label. The artist must refuse this request because it is unfair for the label to benefit from owning a name that the artist created and developed.
In conclusion, a name is very important and great care should be taken in selecting it, protecting it and clarifying ownership in it.
Ben McLane Esq
benmclane.com
C. There could be a question as to who owns the name between the members of a group. This becomes a problem if a member leaves or the group breaks up. It is advisable for the group to enter into a partnership agreement, or form a corporation, so that this issue is dealt with in advance.
An artist should also be wary of any record label that attempts in the contract to have ownership rights in the name transferred to the label. The artist must refuse this request because it is unfair for the label to benefit from owning a name that the artist created and developed.
In conclusion, a name is very important and great care should be taken in selecting it, protecting it and clarifying ownership in it.
Ben McLane Esq
benmclane.com
Tuesday, April 19, 2011
Music Business/Law Tips - "Name" (Part 1)
The professional name that an artist performs under is a valuable commodity to both the artist and to any record company that releases the artist. Both the artist and the record company should be concerned that the name is protected, and that the rights in the name are reserved and understood. Usually, a record contract will have provisions dealing with the name, whether it is the artist's real name or a professional name. This article will discuss some of the common problems surrounding names.
The record label will essentially be concerned with two aspects of the name. First, the label will demand that the artist warrant and represent that the name used by the artist is in fact owned by the artist. Second, the label will demand that the artist grant to the label the right to use the name for publicity and promotion of the artist's recordings.
Often, the ownership of the name is disputed. There are three common scenarios:
A. There could be a question as to who owns the name between the artist and a third party (i.e., producer, production company, label, manager). In these situations, there is usually a contract between the artist and the third party that sets forth who in fact owns the name.
[part 2 next time]
Ben McLane Esq
benmclane.com
The record label will essentially be concerned with two aspects of the name. First, the label will demand that the artist warrant and represent that the name used by the artist is in fact owned by the artist. Second, the label will demand that the artist grant to the label the right to use the name for publicity and promotion of the artist's recordings.
Often, the ownership of the name is disputed. There are three common scenarios:
A. There could be a question as to who owns the name between the artist and a third party (i.e., producer, production company, label, manager). In these situations, there is usually a contract between the artist and the third party that sets forth who in fact owns the name.
[part 2 next time]
Ben McLane Esq
benmclane.com
Tuesday, April 12, 2011
Music Business/Law Tips - "Merchandising" (Part 2)
Term. This period is usually one or more years, or until the advance is recouped. The artist should make sure it has the right to repay the advance so that the deal does not drag on if sales are slow. The merchandiser will want to have a sell-off period (generally six months) after the deal ends in order to finish selling the goods that were manufactured. However, there should be no right to manufacture any further items.
Territory. The territory can be worldwide or rights can be licensed on a region by region basis.
Creative Control. The artist should insist that it has approval over any artwork which will be marketed so that shoddy or negative merchandise does not enter the marketplace.
The sale of merchandise can be very lucrative depending upon the type of artist because some forms of music lend themselves better to the sale of merchandise. Yet, since most popular artists will enter into some type of merchandising agreement, knowledge of the parameters of the contract will help ensure a fair deal.
Ben McLane Esq
benmclane.com
Territory. The territory can be worldwide or rights can be licensed on a region by region basis.
Creative Control. The artist should insist that it has approval over any artwork which will be marketed so that shoddy or negative merchandise does not enter the marketplace.
The sale of merchandise can be very lucrative depending upon the type of artist because some forms of music lend themselves better to the sale of merchandise. Yet, since most popular artists will enter into some type of merchandising agreement, knowledge of the parameters of the contract will help ensure a fair deal.
Ben McLane Esq
benmclane.com
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