ENTERTAINMENT LAWYERS: WHO? WHAT? WHEN? WHERE? & HOW MUCH?

            As an artist or creator in the entertainment industry you do not need to know everything about the business in order to succeed, but you should hire people who do. When I was a teenage recording artist some years back, I can remember being intimidated by the "suits". Now that I am on the other side of the desk, I have a broader perspective. I am here to tell you that those "suits" can help you; provided, however, that like any other aspect of your life, you use your instincts in making your selection.

            The best place for you to start building your "team" of representatives is with a competent lawyer who specializes in entertainment law, which is a combination of contract, intellectual property (copyright and trademark) and licensing law. Eventually, your team could possibly include a personal manager, an agent and a business manager/accountant. Your lawyer can assist you in assembling your team. He may then function as the linchpin in coordinating the activities of your team and insuring that these people are acting in your best interests.

            A good lawyer will navigate you safely through the minefield that is the entertainment industry. Entertainment contracts can be extremely complicated. Proper negotiating and drafting requires superior legal skills as well as knowledge of entertainment business and intellectual property practice. Your lawyer can explain the concepts of copyright and trademark to you and assist you in securing proper protection for your work. In addition to structuring and documenting a deal to maximize the benefits to you, some lawyers also actively solicit deals for their clients. Moreover, if you are not properly compensated in accordance with your contract, you may look to your lawyer to commence a lawsuit to enforce the terms of your contract.

            When looking for a lawyer, you should not be afraid to speak with a few before retaining one. Some lawyers are with large firms but many are solo practitioners. Lawyers have various personalities and legal skills and you should seek out a situation where the "vibe" is right. Although your first contact may be on the telephone or online, most likely you will have an initial consultation for which there may be a modest charge, although some lawyers may not charge for that first meeting depending on the circumstances. Remember, your lawyer's time is money, so be prepared and be on time for your appointment.

            It is not necessary that your lawyer like or even understand your creative endeavors be it an app, a book, music, your film or TV pilot idea. It is more important that you feel he or she is a trustworthy and competent adviser. The lawyer/client relationship is known as a "fiduciary" relationship which means that a lawyer must always act in your best interest and not his own or that of anyone else. Your lawyer is also under a duty to keep your conversations with him confidential. It is often in your best interest that it stay that way.

            Keep in mind that a lawyer with other big name clients is not necessarily the best lawyer for you; if it comes down to taking your calls or those of a superstar, which do you think will get preference? 

             You are probably wondering, "How much will this cost?" Well, remember that the only thing a lawyer has to sell is his time. A lawyer, much like a doctor, is selling services, so if you go to him for advice you should expect to pay. With the odds of success in this business being what they are, very few lawyers will agree to work for you and wait for payment until you are successful and can pay your bills. A lawyer specializing in the entertainment field usually charges an hourly fee or a percentage of the money value of your deal. Hourly rates generally run from $300-$500 and up. Percentages on a pending deal are based on the "reasonable value of services rendered" in connection with a particular contract and generally run around 5-10% of the deal depending on how it is structured. A few lawyers may charge a set fee to review and negotiate certain documents. Check around to see if the fee arrangement proposed is competitive. Most lawyers will require a payment of money in advance or "retainer", which can range anywhere from $500 to $10,000 (and more for litigation matters). Even those who take a percentage of the deal as a legal fee may require that you pay some amount as a retainer deposit. In addition to the hourly fee or percentage, you are usually required to reimburse your lawyer for his out-of-pocket costs, including long distance telephone calls, photocopies, postage, fax, etc. 

            You should realize that in retaining a lawyer you are making a contract even if your agreement is not written. In return for a fee, the lawyer promises to render legal services on your behalf. However, some lawyers may want a fee arrangement in writing (specifically in connection with a percentage deal) and/or a payment direction letter. A cautious lawyer will advise you that you have the right to seek the advice of another lawyer as to the propriety of a percentage fee arrangement.

            You should consult a lawyer if you are asked to sign anything. Too many aspiring creative artists want to get a deal so badly they will sign almost anything that promises them a chance to do it. Even successful careers have a relatively short life span, especially when it comes to careers in music, movie and television. Therefore, it is important for you to get maximum returns in the good years and not sign away rights to valuable income.

            Do not rely on anyone else (or even their lawyer) to tell you what your contract says. Your lawyer will "translate" the deal for you and explain to you exactly what you are getting into. Do not let anyone rush you or pressure you into signing any agreement. There is really no such thing as a standard "form" contract. Any such contract was drafted by that party's attorney to protect that party's interests; your lawyer can help negotiate more favorable terms for you. Everyone needs someone to look out for his or her interests. That is why you need a lawyer. If you believe in yourself and your talents, give yourself the benefit of the doubt, invest in legal representation and do not sign anything without consulting your lawyer and making sure it is the right deal for you.

            As a final piece of free legal advice: never sign anything – other than an autograph - without having your own lawyer review it first.

Wallace E.J. Collins III is an entertainment and intellectual property lawyer. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; wallacecollins@gmail.com; www.wallacecollins.com 

Sony Music Defeats "Iron Man" Composer's Lawsuit (At Least For Now)

A New York Federal Courts' recent decision concerning a "work for hire" determination could prove controversial. The Court's ruling involved "Iron Man", a rapper from the Wu-Tang Clan and a music composer working in television back in the 1960s.

Federal Court Judge Naomi Buchwald granted summary judgment to defendant Sony Music over plaintiff' Jack Urbont's claims the artist "Ghostface Killah" sampled the "Iron Man Theme" on two tracks of the rapper's second album, "Supreme Clientele.". In ruling in Sony's favor, the Judge examined how Marvel's Stan Lee had set up Urbont to create music for a certain the 1960s television show. She determined that Urbont contributed his materials as a "work made for hire," meaning that Marvel really owns the work and Urbont had no standing to claim an illegal sample. Sony is the beneficiary of this determination, but the opinion steps on controversial territory and might set off a flurry of amicus briefs should Urbont take the matter to a higher authority.

According to The Hollywood Reporter and Billboard, in the 1960s and 1970s, the House of Marvel operated in a loose collaborative working group environment known as the "Marvel Method." In part because of a lack of documentation around the time, there's been many subsequent fights over intellectual property rights. For instance, Marvel fought for years with "Ghost Rider"creator Gary Friedrich and they battled Jack Kirby when the comic book legend attempted to terminate a copyright grant. In those disputes, the issue of whether the artists had created their works as "made for hire" was closely examined, and in the Kirby case, judges applied what is known as the "instance and expense" test, or what happens when the "employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out."

Last September, Marvel settled with Kirby just days before the U.S. Supreme Court was scheduled to discuss whether to grant a review. The high court sent out signals that it was indeed interested in picking up this case, and when that happened, there was a flurry of amicus briefs from intellectual property scholars and Hollywood labor guilds arguing a "critically important case" where Judges overseeing the Kirby dispute had applied the wrong standard when looking at commissioned works.
Judge Buchwald's decision over the "Iron Man Theme" raises the prospect of reviving this debate -- although there are wrinkles here that could arguably make it even more important. In coming to her conclusion, the judge addresses Urbont's situation back in the '60s. Urbont, whose later musical work includes That 70's Show, Oprah, 20/20 and The View, wasn't familiar back then with Marvel superheroes before getting in touch with Lee by a mutual friend. The composer wished to create songs for Marvel Super Heroes, and after reviewing comic books, he absorbed the nature of the characters and composed a theme and presented it to Lee's approval. After the songs were accepted, he received $3,000, which he used to record the music including the "Iron Man Theme."
There was no written agreement at the time, and Urbont didn't initially get royalties, but he was issued a certificate of registration. In the 1990s, he sued Marvel for unauthorized use of the theme and came to a settlement agreement, which referred to Urbont as the "owner" and Marvel as the "licensee."

Sony wasn't a party to Marvel's relationship with Urbont, and yet the judge allows the music company to challenge ownership anyway. As Urbont's lawyer put it in a motion brief, "It is outrageous for Sony to claim that the Works are works for hire, when the supposed employer does not itself claim that the Works are works for hire."

Nevertheless, the judge gives Sony standing to argue that "Iron Man Theme" is a work for hire, and once she does, Buchwald applies the same "instance and expense" test that became the focus of an attempted Supreme Court review in the Kirby case. She liberally quotes the 2nd Circuit's language in Kirby in guiding her analysis.

Eventually, she concludes that "the Iron Man Composition was created at Marvel’s instance because it was developed to Marvel’s specifications and for Marvel’s approval. As in the Kirby case, Urbont’s compositions 'were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest...'" She writes that Marvel retained a right to direct Urbont's work and that the composition "was created at Marvel’s expense because Urbont was paid the fixed sum of $3,000 for his work."

This decision could prompt an appellate review -- a motion for reconsideration might be the first step --on the same grounds as the Kirby case, but there's something of further interest here too. As Urbont's briefs to the judge stress, Sony is not the employer and there's no cited cases where "a third party infringer seek[s] a finding that a particular work is a work made for hire when there is no dispute between the supposed contractor and author." Another difference between Urbont and Kirby?
"In Kirby, plaintiff could offer no testimony regarding the understanding of the parties because the plaintiff was deceased," Urbont's lawyers wrote. "In this case, Urbont is able to testify and has testified to a contemporaneous understanding with the producers of the television series that he owned the Works."

In other words, Urbont at least wants the treatment that Friedrich got when the 2nd Circuit vacated a summary judgment ruling and ruled there were triable issues. Judge Buchwald doesn't seem to think it matters what Marvel and Urbont called the working relationship, or how the settlement agreement referred to Urbont as the "owner." She says that a settlement doesn't really mean that Marvel conceded that Urbont was the owner, and further "case law within the copyright infringement context affirms that a licensing or settlement agreement should not supplant a court’s independent determination of copyright ownership." So, as a result of Judge Buchwald's ruling, Marvel seems to be the owner of the "Iron Man Theme" - and didn't even ask for it.

Wallace Collins is an entertainment and intellectual property lawyer based in New York. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656;  www.wallacecollins.com 

HOW DO I GET MY RIGHTS BACK: TERMINATION RIGHTS UNDER U.S. COPYRIGHT LAW

     The 1976 Copyright Act provides for the termination of copyright transfers. It entitles content creators to reclaim their copyrights - regardless of any contract stating otherwise –after certain time periods. So, even if an author, artist, musician, photographer or songwriter signed a contract which purports to transfer all rights in a work for perpetuity, the Copyright Act provides that the author of the work (or the author's heirs) can terminate that grant and demand that the rights revert in a shorter period of time. Authors and creators are now entitled to terminate their contractual transfers and demand back control of their copyrights: authors can terminate their book publishing contracts, songwriters can demand return of their musical compositions from music publishers and recording artists and record producers can demand return of their sound recordings from the record companies.

            

   Generally speaking, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the Copyright Act. For pre-1978 works Section 304(c) of the Copyright Act, says that a copyright owner (or his or her heirs) can terminate all grants, licenses or transfers of beginning on the 56th year after that assignment was made. Termination may be exercised anytime during a 5 year period beginning at the end of either the 35 year or 56 year period from the execution of the grant (as applicable) or, if the pre-1978 grant concerns the right of publication of the work, then the period begins on the sooner of 35 years after publication or 40 years after execution of the grant. Although there are certain formalities which must be complied with to effectuate transfer, this essentially means that recording artists and songwriters were entitled to start exercising their right of termination on post-1978 works as of the start of 2013. 

       The big exception to the termination right is if a work was done as a "work-for-hire.” Section 101 of the Copyright Act of 1976 delineates what types of works by their nature are incontestably works for hire. It is essentially a two part test: (1) was the work created by an employee within the scope of his or her employment, and; (2) if not, is it (a) one of the nine enumerated work-for-hire classes of works and (b) is there a written agreement signed by the author acknowledging the work for hire relationship. Included on the list of nine enumerated categories of works that are works for hire are collective works, compilations and motion pictures. Not included on this list are books, photographs, songs and sound recordings.

       There are ongoing legal battles over how termination rights affect the book, comic book and motion picture fields. Not unexpectedly, the entertainment business companies are not pleased with the copyright termination provision and the inevitable ramifications thereof.

       With respect to songs and music publishers, some litigation has already been decided. In Scorpio Music S.A. v. Willis (Case No. 11 CV 1557 (C.D. CA 2012), California Federal District Judge Moskowitz determined that original Village People member, Victor Willis, could terminate his transfers and recapture a direct copyright interest in many of his group's songs, including "YMCA." In this case, after Willis notified Scorpio that he was terminating the prior transfers, Scorpio sued arguing that Willis could not terminate because a majority of each song's authors had not also agreed to terminate their transfers. The court sided with Willis, ruling that an author can unilaterally terminate the transfer of his share in a copyrighted work without his co-writers.  Although the Scorpio decision addressed a fairly narrow point concerning multi-author transfers, the decision opens the way for most songwriters to get their composition copyrights returned and sets the stage for the bigger battles looming on the recorded music side of the business. The copyright termination procedures apply to the separate and equally lucrative sound recording copyrights transferred to record labels as part of typical recording artist contracts over the years. Since the term “sound recordings” is not explicitly contained in the enumerated work for hire category list, practitioners representing record companies will need to try to find other ways to justify any claim that sound recordings are indeed works for hire in order to preclude termination by artists.

       The termination rights of the author or creator of a copyrighted work are generally subject to a 5 year window. Termination must be made effective within the termination window or the right to terminate the grant is forfeited. To be effective, the author must serve a written notice of termination on the original record company or publisher (and/or any successors) no more than 10 and no less than 2 years prior to the effective date stated in the notice. The notice of termination must state the effective date of termination. Perfection of the termination requires that a copy of the written notice also be filed with the U.S. Copyright Office prior to the effective date of termination.

       Although the termination rights of an artist under the 1976 Copyright Act would only be effective for the U.S. territory, the size of the U.S. consumer market still makes this a valuable right to reclaim. 

Wallace Collins is an entertainment and intellectual property lawyer based in New York. He was a songwriter and teenage recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656;  www.wallacecollins.com 

WHAT’S THE SCORE WITH SYNCHRONIZATION RIGHTS

As the composer of a film or TV score or as a songwriter, artist or producer whose song is used in a movie, TV show, advertisement or video game, under U.S. copyright law you own 100% of the copyright in your work from the moment you create the work and "fix it in a tangible medium." However, you must be careful what you sign so that you do not assign away those rights without fair compensation for your work. 

When it comes to the use of music there are two copyrights: one in the musical composition or song and one in the sound recording which is the fixation of the sounds that make up the music. When music is used in synchronization with visual images, whether it is created especially for the particular score or whether it is a pre-existing song that the director wants to use in a scene in a TV show or a theatrical motion picture, this is referred to as the "synchronization" of music with visual images. Permission in the form of a synchronization license (sometimes referred to as a “synch license”) must be procured by the makers of the audio/visual production from both the owner of the sound recording (the artist or record company) and from the owner of the song copyright (the songwriter or publishing company) Sometimes these are one and the same person or entity, sometimes they are not.

A synchronization license may take various forms. If a show's producer, director or music supervisor decides that a certain pre-existing song is right for a particular scene in a film or TV show or commercial or video game, then a synch license covering the master and the composition would be requested. Depending on the length and prominence of the use, if limited solely to use in the show the amount paid can range from a few hundred dollars to tens of thousand of dollars, or more. If the company also wants the right to include the music on a soundtrack album, then additional provisions would be required for that use which would pay royalties for each record sold. Also, the song should be registered by the author with the performing rights society (e.g., ASCAP, BMI, SESAC, etc.) so that revenues from performances in foreign movie theaters (U.S. movie theaters do not pay performance royalties) and from television broadcast can be collected and paid to the author.

On the other hand, a songwriter may be specifically employed to write incidental music or underscore cues for a film or for a TV commercial or other audio/visual work. Such an arrangement may be structured as a "work made for hire" whereby the songwriter is employed to write specific music which may ultimately be owned by the producer of the film. There is no set fee for such an arrangement - it can range from a few hundred dollars for a small budget project to hundreds of thousands of dollars for a blockbuster film score. However, in such circumstances, since the production company would usually claim ownership of the copyright, the author needs to be sure to try to negotiate to receive the 50% "writer share" of performance monies and have producer only get the 50% "publisher" share - otherwise the author may not be entitled to performance royalties from his or her performing rights society and it would all go to the producer. Issues like this would depend on the careful negotiation of the contract between the parties and their legal counsel.

Since this is a complicated area the details of which are beyond the scope of this article, I would suggest that if such an offer is made to you, an experienced entertainment lawyer would be a good investment on your part.  My advice on such matters is always “don’t sign anything – other than an autograph – unless you have a lawyer review it first!”

Wallace Collins is an entertainment and intellectual property lawyer based in New York. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656;  www.wallacecollins.com 

FAA Ruling For Air Travel: you CAN carry on your guitar!

The U.S. Department of Transportation issued a final rule to implement section 403 of the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95, 49 U.S.C. §41724) regarding the carriage of musical instruments as carry-on baggage or checked baggage on commercial passenger flights operated by air carriers.The final rule does not change the earlier provisions of the Act, but mercifully puts a period at the end of the sentence: "Section 403 of the Act and this final rule provide that "carriers are required to allow passengers to stow their musical instruments in an approved stowage area in the cabin only if at the time the passenger boards the aircraft such stowage space is available."

"With the exception of certain disability assistance devices, overhead bins or under seat stowage space is available to all passengers and crew members for their carry-on baggage on a “first come, first served” basis. Accordingly, carriers are not required to remove other passengers’ or crew members’ carry-on baggage that is already stowed in order to make space for a musical instrument. However, this also means that carriers are not allowed to require a passenger to remove his or her musical instrument that is already safely stowed (e.g., in the overhead bin) to make room for carry-on baggage of other passengers who board the aircraft later than the passenger with the musical instrumenT." Most importantly, "This is true even if the space taken by the musical instrument could accommodate one or more other carry-on items." You can read the entire text of the rule here.

The DOT has also provided a helpful page with links to procedures for complaining to an airline or to the DOT regarding air travel with instruments, and tips for traveling with a musical instrument, available here.

One problem is that on any given day a random gate agent might be having a bad day and decide that he or she does not want to permit your guitar to go on with you as carry-on - and, as a practical matter, there is not a lot you can do in that situation (otherwise, if you get defensive or even ornery, you run the risk that security will be called, etc.). Consider that particular dilemma a bit of bad luck.

Best advice? Print a copy of the rule and carry it on with you when you travel so you can stop arguing with that officious ticket agent who insists that you have to check your guitar as baggage or buy another seat for it.


Wallace Collins is an entertainment and intellectual property lawyer based in New York. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; email: wallacecollins@gmail.com.

BASIC LEGAL TIPS FOR RECORD PRODUCERS

     Producers should be aware of their legal rights when it comes to working with recording artists in the studio. These days the music business, particularly the pop and urban markets, is producer-driven more so than ever before. Producers not only help capture the sound in the studio and use the available technology to mold it to be as commercially acceptable as possible, but more and more producers are finding and discovering new talent and developing the artist’s sound and even co-writing the songs with the artists.

     As a producer there are two copyrights that come into play in your business under the copyright law: one in the sound recording and one in the underlying musical composition or song. I usually suggest to my producer clients that they file a copyright registration with a Form SR covering both copyrights as soon as they begin to circulate a finished track (whether passing it around or posting it on a website or social media). The filing of a copyright registration in Washington D.C. gives you additional protection in so far as it establishes evidence of the existence of such copyright and gives you the presumption of validity in the event of a lawsuit. Registration also allows for lawsuits to be commenced in Federal court and, under Federal law, allows an award of attorneys’ fees to the prevailing party. Forms are available at www.loc.gov.

     Under copyright law, when a producer and an artist work together to create a sound recording in the studio they become co-authors in the work. The producer and the artist become joint owners of the copyright in the sound recording. In urban and hip-hop music, the producer who creates the musical bed or track becomes a collaborator with the artist who writes the lyric and performs the vocals in the recording studio so that the producer and artist become joint owners not only in the copyright in the sound recording but also, by current custom in the industry, in the underlying musical composition. Copyright vests in the creator as soon as the idea is “fixed in a tangible medium”, so as soon as you write it down or record it the copyright is created. Under the copyright law, although a non-exclusive license can be verbal, you can only transfer your right in the copyright by signing a written agreement to transfer them - so be careful what you sign.

    

     Although it is generally standard operating procedure when dealing with the major record labels to be asked to sign contracts to transfer your sound recording copyright to the label in exchange for an advance and royalties, you must be cautious with any agreement you are asked to sign whether by the artist or the record company. In addition, the underlying song copyright and the related “publishing rights” have an important value that the producer should know how to monetize whether through a publishing deal or acting as his own publisher. Producer contracts address numerous issues and the language can be a minefield - it is best to have an experienced entertainment lawyer navigate your way through that minefield.

      Producers earn revenues from advances and royalties paid for the sale of the sound recording, and may also earn mechanical royalties and performance monies (e.g., ASCAP, BMI, SESAC) if the producer is deemed a co-author of the musical composition. In addition, the producer should earn income from all use and exploitation of the record just as the artist does, whether from synchronization licenses for film and TV use, from social media, and from streaming services like YouTube and Spotify. Producer agreements should also provide for payment to the producer of SoundExchange revenues. Most of these issues are dealt with in the producer contact. In the absence of paperwork concerning the producer’s work in the studio and the producer’s share of income, then the producer and artist are joint owners of the sound recording copyright and the issue is then how to divide the revenues that may arise from the use and exploitation of the recording.

     Never sign anything - other than an autograph - without having your entertainment lawyer review it first. Do not rely on anyone else (or even their lawyer) to tell you what your contract says. And never let anyone rush you or pressure you into signing any agreement. There is really no such thing as a standard "form" contract. Any such contract was drafted by that party's attorney to protect that party's interests. Your lawyer can "translate" the deal and explain its terms to you, and then help negotiate more favorable terms for you.

     Keep in mind that it may, in fact, be in your best interest to "get it in writing" if you have an arrangement with someone. This is especially true in collaborative situations. Otherwise, you run the risk of a disagreement later over the actual terms of the oral agreement, and it becomes your word against that of the other party. That is not to say that an oral agreement is not a binding contract, but a contract is easier to prove if the terms of the arrangement are in writing. A simple contract may not necessarily require extensive involvement by lawyers. A contract can be as basic as a letter describing the details of your arrangement which is signed by both parties to the agreement. However, at the end of the day, if you believe in yourself and your talents, give yourself the benefit of the doubt, and invest in good legal representation - all the successful producers do.

Wallace Collins is an entertainment and intellectual property lawyer with more than 30 years of experience based in New York. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com

What Is A Music Publishing Deal? - and Do I Really Need One?

    Sometimes I hear songwriters talk about wanting a "publishing deal" without even really understanding what that means. Depending on the circumstances of each writer and the terms of the particular contract, sometimes no publishing deal is better than the wrong publishing deal.

    The term "publishing", most simply, means the business of song copyrights.  Under US copyright law, a songwriter owns 100% of his song copyright and all the related publishing rights until the songwriter signs those rights away. Under the law, a copyright (literally, the right to make and sell copies) automatically vests in the author or creator of a work the moment the expression of an idea is "fixed in a tangible medium." (i.e., the moment it is written down or recorded on tape.)  With respect to recorded music, there are really two copyrights: the copyright in the musical composition owned by the songwriter and the copyright in the sound of the recording owned by the recording artist (but usually transferred to the record company when a record deal is signed).

     A writer owns the copyright in his or her work the moment he or she writes it down or records it, and by law can only transfer those rights by signing a written agreement to transfer them. Therefore, a songwriter must be wary of any agreement he or she is asked to sign. Although it is not necessary, it is advisable to place a notice of copyright on all copies of the work. This consists of the symbol "c" or the word "copyright", the author's name, and the year in which the work was created, for example: "(c) John Doe 2020."

     The filing of a copyright registration form in Washington D.C. provides additional protection in so far as it establishes a record of the existence of such copyright and gives the creator the presumption of validity in the event of a lawsuit. Registration also allows for lawsuits to be commenced in Federal court and, under Federal law, allows an award of attorneys fees to the prevailing party.  To order forms and for additional information on copyright registration go to www.loc.gov\copyrights. These days, a songwriter can register for a copyright on line.

     As defined by the copyright law, the word "publish" most simply means "distribution of copies of a work to the public by sale or other transfer of ownership, or by rental lease, or lending". As a practical matter, the music publishing business consists primarily of all administrative duties, exploitation of copyrights, and collection of monies generated from the exploitation of those copyrights. If a writer makes a publishing deal and a publisher takes on these responsibilities then that publisher "administers" the compositions. Administrative duties range from filing all the necessary registrations (i.e., copyright forms) to answering inquiries regarding the musical compositions.

     One important function of a music publisher is exploitation of a composition or "plugging" a song. Exploitation simply means seeking out different uses for musical compositions. Sometimes a music publisher will have professional quality demos prepared and send them to artists and producers to try to secure recordings of the songs. They may also use these tapes to secure usage in the television, film and advertising industries (known as a "synchronization" use).

     Equally important as exploitation is the collection of monies earned by these musical usages. Particularly in in the digital age, when transactions amount to billions and payments to fractions of pennies, the administration of song copyrights and the collection of revenues can be a complicated and massive undertaking. There are two primary sources of income for a music publisher: earnings that come from record sales (i.e., mechanical royalties from both physical and digital copies) and revenues that come from broadcast performances (i.e., performance royalties).  Mechanical royalties are collected directly from the record companies and paid to the publisher. Performance royalties are collected by performing rights organizations (e.g., ASCAP, BMI, and SESAC in the United States and different entities in each other country) and then distributed proportionately to the publisher and to the songwriter. In addition to plugging and administrative functions, it is also important to know that there is a creative side to music publishing. Since producing hit songs is in the best interest of both the writer and the publisher, good music publishers have whole departments devoted to helping writers grow and develop. The creative staff finds and signs new writers, works with them to improve their songs, pairs them up creatively with co-writers and hopes the outcome will be hit records.

     A publishing deal concerns rights and revenues. If a writer decides to do a publishing deal then the main issue for negotiation is going to be the language pertaining to the calculation and division of the rights in the copyright and division of the monies earned. In the old days, most deals were 100% copyright to the publisher and 50/50 share of the revenues because there was a concept that the "writer's share" was 50% and the "publisher's share" was 50%. This, of course, was an invention of the publishers. Legally, these terms have no such inherent meaning but their calculation is defined in each individual agreement. Most modern publishing deals, however, are referred to as "co-publishing" deals where the copyrights are co-owned 50/50 and the monies are usually calculated at around 75/25 meaning the writer gets 100% of the 50% writer's share and 50% of the publisher's 50% share for a total of 75%. It is best for the writer to insist that all calculations be made "at source" so that there are not too many charges and fees deducted off-the-top before the 75% calculation is made. Keep in mind, however, that the advance paid to the writer by the publisher is later recouped by the publisher out of the writer's share of income from the song. So, the net business effect is that the publisher pays the writer with the writer's own money to buy a share of the copyright (and the right to future income) from the writer.

     Although a writer can be his own publisher and retain 100% of the money, the larger publishers in the music business usually pay substantial advance payments to writers in order to induce them to sign a portion of their publishing rights to the publisher - and this can be a good thing for the writer. Although a deal for a single song may be done with little or no advance payment (provided there is a reversion of the song to the writer if no recording is released within a year or two), there should be a substantial advance paid ($5,000-$100,000+) to a writer for any publishing deal with a longer term (e.g., 3-5 years or more). Moreover, sometimes the length of an agreement is more than just a function of time, it might also be determined based on the number of songs delivered by the writer or, even more difficult to calculate, based on the number of songs that get recorded and released on a major label (something neither the writer nor the publisher may have any control over). 

     Publishing deals have to do with more than just the money though. Since every music publisher is different, it is important for the songwriter to assess both the business and the creative sides of a music publisher before signing any deal. Ultimately, the songwriter is trading a share of something the writer already owns 100% of (the song copyright) so it is important to be mindful of what it is exchanged for by way of services and money.

Wallace Collins is an entertainment and intellectual property lawyer. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com