Music Business/Law Tips - "Parody"

For instance, you have written a parody of a John Mayer song, which does not substantially change the original music of this famous song but incorporates humorous new lyrics throughout (ala Weird Al). I note that this is not a “sample” in that it is a whole new recording. It is also important to note that there are 2 copyrights at issue here: (1) The composition copyright (song) which John Mayer's publisher administers for him [this is the “c” in the circle], and the (2) sound recording (master) of your parody version which you own [this is the “p” in the circle]. You only have to be concerned with the "c" copyright. Some quick background why Weird Al, et al generally tries to obtain permission to do a parody up front just to be safe since the world of fair use/parody is a slippery slope as it could be considered a derivative work, and each situation is case by case and not always legal per se (see famous cases e.g., 2 Live Crew case from the 80s where the final judgment of the appeals court prevented the parody of Roy Orbison’s “Pretty Woman” by 2 Live Crew on the grounds that it was blatantly commercial and damaged the market for the original, and the Catholic Priest’s re-done version of Jesus Chris Superstar from the 70s where the court would not allow it either). On the other hand there have been numerous other cases which allowed the parody. Under the Copyright Act of 1976 (Section 107) the court will weigh several factors to allow or prevent a parody (or any fair use of an existing copyright): 1. Is it for commercial or non-profit use (i.e., education, news, charity, etc)? 2. What is the nature of the original work (i.e., was it a hit song)? 3. Is the parody a close copy to the original (substantially similar) or does it just use bits a pieces of original? 4. Does it damage the potential market for the original or somehow diminish or tarnish the value of the original? Although for practical purposes you can make and release this parody and never obtain permission or share profits with John Mayer since its really under the radar, there is a chance if it took off you could possibly get sued for infringement, and then it would be up to the court to decide whether your parody would be allowed without permission by viewing all the factors set forth above. I think its down to a balance of whether your version would damage the original version due to massive sales (since clearly you are doing this for profit). Since getting permissions is a hassle and time consuming and sometimes expensive, you may just want to put out your version and then if someone ever comes after you get the permission then (and you could claim in good faith you did not know you needed it since you thought a parody was excepted which is a valid argument due to the murky nature of this issue), or worst case they would probably just tell you to stop selling. Ill have to leave that to you. If you do want to be 100% safe and seek a permission or give a courtesy notice, you can find out who administers famous song by checking with BMI.com, ASCAP.com or Harryfox.com. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Work For Hire" Demo

If you hire a producer and musicians to help you create a demo you are singing on, you need anyone who is making a contribution to the masters (i.e., producers, mixers, engineers, session musicians) to sign a form saying they are working for you on a "work for hire" basis and that you own and control the masters 100% without restriction (so you can pitch and license or transfer/sell the masters freely without any third party claims). Normally someone would sign a work for hire form because you have compensated them in some way like a fee, royalties on sales, and/or a credit.

Music Business/Law Tip - "Sample Clearance Issues"

If you want to use a "sample" of someone else's song in your new song, you will need to approach whoever owns/control the sampled song to get permission/clearance. The following are some of the issues you will need to address: Is your new song an independent release or via a label? What is the expected release date of your new song? Will your new song be for sale or promotional only? How many copies of your new song do you plan to press/sell (physically or digitally)? Do you also plan to have your new song included in video, TV, film, commercials? What territory/ies do you plan to release your new song? And of course they will want to hear a copy of your new song so a "split" of writers/owners share in the new song can be sorted out. Ben McLane Esq benmclane.com

Music Business/Law Tip - "Marketing/Promotion"

Marketing and promotion is imperative to this industry at all levels. If you are really serious you have to hire someone good to do PR. You need to play as much as possible in your region (and beyond within driving distance to hit new audiences/cities), and really do a lot of internet promo which is very possible and affordable for an indie artist I think. Lots of YouTube videos are also great as they can go viral (can be you live or in your room). When youre indie you can do more grass roots things and then you will start to bubble up and the mainstream pays more attention if you are really good and the public starts to react. Some specific things I recommend you do: 1. Get the Film/TV Music Guide from musicregistry.com and try hitting up some music supervisors. 2. Try to co-opt the similar artists fans by studying how those artists market themselves and who their fans are. Try to hit up blogs that will feature/mention you [check out hypem.com for genre blogs] and hit up those blogs and hopefully if your name and music is out there enough on the web when someone listens to that similar famous band you will come up as a "recommendation" for a fan to check out if they like that they will like you sort of thing. 3. Hire someone good to do PR over an extended period - you need press/exposure. 4. Tour/play as much as possible. 5. Maybe go to LA, NY or Nashville for a music conference to meet other artists and business folks that work in your genre. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Compilations"

Most artist album royalty deals with a label are about 15%-20% of the retail price (in general if a record sells for $10 that's $1.50 to the band) - its the same for a compilation, but instead of a solo act/band getting all 15-20%, its 12-15 acts splitting that royalty on what they call a pro-rata (fractional) basis. So an artist on a comp needs to ask for a pro-rata royalty of 20% (and hopefully no less than 14-15%), and also if possible try to get whats called a "most favored nations" rate which means the artist gets paid the same royalty (pennies per sale) as all the other acts on the comp (even if there is a big name), and most importantly make sure the label lists the artist's credit on the package (name and website), and make sure that the label only use track for the comp (nothing else like licensing to film/tv) without the artist's permission. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Synch Deal"

Common provisions that a songwriter/artist would want to see included in a synch deal are as follows: (1) a fee, (2) a credit, (3) a reversion if the song is not used, (4) limits on how the song is used in the show/film/commercial, (5) a term, and (6) copies of cue sheets sent to writer/artist so he/she can track the usage and make sure they get paid by BMI, ASCAP or SESAC. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Publishing Company"

Music publishing companies have many benefits to songwriters. A publishing company/deal can be: (1) a bank to support a songwriter, and (2) a way to get the songwriters songs “covered” by recoding artists or placed in film/tv/commercials which generates income and credits for the songwriter. Publishing deals can also have drawbacks: (1) the songwriter has to split the income and the copyrights with the publisher (usually forever), and (2) normally the deal is for several years so the writer can only write for the that one publishing company during the term and if the publisher is lazy or short-staffed the songs might languish and the songwriter will starve. Ben McLane Esa benmclane.com