Music Row Lawyer (C. Stephen Weaver)

Sean Parker Blames Labels For Spotify Artist Royalties

    At SXSW in Austin this year, Sean Parker attempted to explain that artists are not receiving a much money from his company, Spotify, because their labels are ripping them off.  Parker states that by the terms of the artists’ recording agreements the labels are getting the bulk of the take from Spotify.  In making the bold and apparent omnipotent statements on stage in Austin Parker went on and predicted a war between artists and their labels.  "There's blood in the water for labels” Parker stated.

Recording Agreements are drafted in favor of the labels because the agreements are drafted by the label attorneys.  This is not a concept unique to the recording industry.  It is assumed in any business or other endeavor that the drafting party will have the agreement slanted in their favor.  Hello-o!  The idea is that the other party will then negotiate the agreement and insist that certain provisions be modified to be more reflective of their interests.  Not all recording agreements are the same—especially after negotiation and weighing all the factors that give one party or the other leverage.  I have been practicing entertainment law over 30 years and have negotiated and seen enough to know what I am talking about.  Parker hasn’t been alive much longer than that. 

Oh – and are we really supposed to pay any attention to Sean Parker’s excuse for his company not paying artists enough?  Laughable if not astonishing at best.  This is the guy whose first business success was based on not paying artists anything for use of their music (Napster).  What a joke for him now to point the blame finger at somebody else for his continuing methodology of screwing artists, songwriters, producers, musicians and others in the recording industry.

Here’s a bit more reading: 

http://www.wired.co.uk/news/archive/2012-03/15/sean-parker-spotify-blood-water

http://www.hypebot.com/hypebot/2012/03/sean-parker-theres-blood-in-the-water-for-labels-over-spotify-royalty-payments.html

http://digitalmusicnews.com/permalink/2012/120322emi

30 Years of Music Industry Change in 30 Seconds

This is cool.  Had to share it with you.  If you are a reader of Digital Music News then you may have already seen this cool moving chart of what has changed in the recorded music industry over the past 30 years.  If you haven't seen it, you can now by clicking here.

The Closing of Motown – and the Future of Music

            It’s not that I haven’t wanted to blog lately – it’s more that sometimes I just don’t know what to say.  I am a bit overwhelmed when I begin looking for something newsworthy in the music industry to blog about.  I’ve watched the record business crumble around me for the last several years – and it seems to continue to do so.  And I get tired of talking to you about the negatives.  No, I’m not in the record business but I have had more than one record label as a client during my career.  And me as a young man and many of my clients since dreamt of becoming recording artists and having a record deal.  Fewer and fewer will have the opportunity to see that dream come true.

            Most recently the Universal Music Group basically shut down Motown, the legendary R&B label of my teens and 20s and continuing into my adulthood.  Songwriters that inspired me and motivated me to find my place in the music business wrote for that label.  I remember classmates walking the halls of Overton High School in Memphis singing songs by Dianna Ross & The Supremes, The 4 Tops, The Temptations, Stevie Wonder, Marvin Gaye and many, many more.  Or I might hear the “real” music on someone’s transistor radio while they stood at their locker or outside the school before going home.

            Motown’s closing made me sad.  I was moved to the depths of my soul by music when I was just a little fellow.  By the time Elvis had his first hit I already owned a guitar and knew my future would have something to do with music.  The Beatles escalated that passion to a new level.  And many other artists through the years have helped keep the fires burning.  No, it is not over.  I know that.  It is just changing.  I will adapt, as will others.  But sometimes it is difficult and emotional.

            And that is also why it is sometimes it is difficult to know what to blog about.  But I have lived long enough to know that tomorrow is a new day.  And the Phoenix will rise from the ashes – although in a different form that many might not recognize.  But nevertheless sufficient to again inspire young artists and future music entrepreneurs.

 

Copyright © 2011 C. Stephen Weaver

Obama Administration Supports Creators and Content Owners

    Last year the Obama administration sent a White Paper to Congress which, among other things, suggested that legislation be enacted to emphasize that illegal file sharing is a felony in certain circumstances.  Apparently the intention is to either create new legislation or somehow encourage enforcement of the criminal provisions of the existing Copyright Act.  Rarely is there criminal prosecution under the copyright act.  Normally only in cases of mass organized piracy and bootlegging.  Moses Avalon makes the comment in his latest blog that “it seems like the Fed is ready to level the playing field between America’s newest major industry—Internet technology--and one of its oldest—intellectual property, as Obama sets to put an end to piracy and torrent “streaming” of music.”

    Moses doesn’t mention that in the same White Paper the Obama Administration also endorses the Performance Rights Act which would provide a right of public performance for Sound Recording copyrights.  This is the right (non-existent in the U.S.) which would require that radio stations and others pay a royalty to the creators and owners of sound recordings in addition to their current payments to the creators of musical compositions.  Whether or not this recommendation to Congress will have any effect we do not know – but as Kevin Goldberg states in his law firm's blog, “as endorsements go, this is a pretty big one.”

    Any thoughts about this dear readers?

 

 © C. Stephen Weaver 2011

 

Who Owns The Performances On Your Recordings? Part 2

            Continuing with last weeks subject matter, why is it when you hire musicians, producers, vocalists and others that the resulting Master tracks are not “Works Made For Hire”.  If the recording were works for hire then you as the person who paid for their creation might be considered the employer and thus the “author” and owner of the sound recording copyrights.

            The idea of work for hire is an exception to the general rule that the creator of a work is the “author” and thus is automatically the owner of the copyright.  There are two kinds of works for hire.  First, a work can be considered a work for hire if it is created by an employee within the scope of his or her regular employment.  If you were to hire a vocalist to sing jingles for you full time and told the person when and where to work, then the jingle recordings might indeed be works for hire.  But that is not the situation in most recording sessions that I know about.  The artist or record label hires the musicians to come to the studio and record for that one album or for a certain number of songs on the album.  Recording that specific album is not their full time job.  They get paid for the project and not as a regular full time employee.  They are independent contractors. 

            The second type of work for hire is the situation where one hires independent contractors which is the example given for most recording sessions.  In that situation every one making a creative contribution to the recording will likely be a creator of it and thus an owner of copyright along with the other musicians, vocalists, etc.  However, their work can be considered a work for hire only if two conditions are met:  (1)  the work must be intended to fit into one of nine categories listed in the copyright act AND (2) there must be a signed contract that states that the work when finished will be considered a work for hire.  That is why I stated in last week's post that without the written agreement most songwriters and artists will not own the copyright in the sound recordings they just finished recording and paying for.  Does an EP or an Album fit into one of the required nine categories?  Arguably “yes” – in category number 1 below:

1. A contribution to a collective work
2. A part of a motion picture or other audiovisual work or sound recording
3. A translation
4. A supplementary work
5. A compilation
6. An instructional text
7. A test
8. The answer material for a test
9. An atlas

            The lesson:  when you get ready to go to the studio be sure you have anyone making a creative contribution to the sessions sign a work-for-hire agreement that addresses all the requirements of the Copyright Act. 

© C. Stephen Weaver 2011

 

Who Owns The Performances On Your Recordings?

            There seems to be a common presumption that if you pay for the recording session you automatically own the copyrights in the Sound Recordings – that is the Demo or Master tracks.  The Sound Recording copyright needs to be distinguished from the copyright in the underlying song that is being recorded. The sound recording copyright protects the performance of the song.  It protects the performance from piracy.  It prevents others from actually illegally duplicating the sound recordings – or illegally downloading the recordings owned by record labels.

            The U.S. Copyright Act grants copyright ownership to the “author” of a work.  In most instances this would be the creator – anybody who made a creative contribution to the work.  That isn’t necessarily the person or company that pays the studio, the producer, the engineer and the players, although it could be.  In the case of your song demos or master recordings in many cases more than one person made a creative contribution:  The Producer, the musicians, the backup vocalists, etc.  This is especially true at the professional level.  Although it has not been a standard practice in the industry, you should have each one of those people sign a simple agreement stating that their contribution to the song is a “work made for hire”.  This should be signed before the recording begins.  The agreement should go even further and state that if the work is not legally a work for hire then the person making the contribution (musician, etc.) is assigning his copyright interests in it to you.  If you have ever signed a recording agreement or a producer agreement you will have seen the work-for-hire and assignment language in the agreement.  Now you know why it was there.

            It is becoming much more common that in the case where the “demos” or masters end up having an opportunity to be commercially exploited, having those agreements will be required by the record label, the motion picture company, etc.  And having to go back and get a written assignment from everybody involved in the session can be a real problem later on.  I know because I have tried to help artists about to be signed to a label try to get signatures after the work is done.

            I have had many clients and prospective clients believe that their masters or demos are works for hire because they paid for them.  In most instances in the music business that is not going to be true unless the written agreement I referred to is signed by the creators.  And not always true even if there is a written agreement.  I will explain this more thoroughly in my next post.

 

© C. Stephen Weaver 2011

Majors Labels Are Still Best Choice for Super Stardom

            Paul Resnikov penned a recent post regarding what I often tell my clients.  And that is if making the biggest national and/or worldwide impact as a new artist out of the gate is your objective, your best chance is still with a major label.  They have the money, the staff, the know-how and the connections that most indie artists do not.

            True, the majors have a bad rap – mostly for the behavior of their 1950’s predecessors and for their attempts to stop the theft of their multi-million dollar assets by illegal file sharing.  Majors are far from perfect.  But I’m not talking about perfection.  I’m talking about increasing your odds of becoming a huge success in the shortest period of time.

            The indie life offers many more options than ever before.  I also tell my clients if they like running their own show they can certainly make a good living as an indie and can enjoy artistic freedom.  But those discussions have nothing to do with the odds of achieving super star status.  Sure an indie can do that – but what are the odds compared to the latest artist being financed, groomed and backed by a major?  

            Speaking of odds, what are the chances of even being signed by a Major?  Slimmer and slimmer everyday.  Becoming an indie artist for most is the only option.  For most of todays’ new artists who want to be with a major label, the best option is probably not to sit around waiting for an offer from one of the big companies.  The best option is to create your own sales history and fan base while also pursuing the major deal.

In my own career as an entertainment attorney I have chosen the life of an “indie”.  I am a solo practitioner and have been for all but two years of my career.  I love it.  What I have given up is the guaranteed income offered by large law firms and to some degree more “fame”.  My choice and I do not regret it.

            As a reminder, I define “Major” as a label with major label distribution, its own radio promotion staff (at a minimum) and the ability to finance a national launch of their artists.  Here is Paul’s original article “If Major Labels Are Bleeding So Badly, Why Are They Still Creating the Biggest Artists?”

 

Copyright © 2011 C. Stephen Weaver

Who Wrote The Band's Song?

           More than once in my career I have seen arguments occur among band members over who wrote the group’s songs.  Is it the member or members who walked in the door one day with the melody and lyrics or is it everybody in the band who “played” the song the first time they learned it from the music and lyric writers?  In the situation I just described I believe the answer is the creators of the melody and lyrics.  And in fact that is the way it is normally handled – think “The Beatles”.

            I realize there are different situations that might determine who the writer or writers are of an original song performed by a band.  The genre of music might be a big factor.  Or the actual collaboration process.  I don’t argue that everybody might be a writer in the situation where an entire band collaborates.  My problem is the situation where there is clearly one or two writers who do their writing away from the entire band.  In effect, they “write” the song and then bring it in for the band to work it up – and probably to do some on the spot arranging. 

            So why is it then that the rest of the group feels “entitled” to ownership of those songs?  In my experience band members do not make that kind of claim until there is money at stake.  The band gets a record deal and there is also a publishing or co-publishing deal being offered – with an advance.  The advance is to the “writers” – not to the artists – the players.  Maybe the players who were not a part of the original collaboration or solo writing project do make musical contributions that change the “fundamental character of the work” (Copyright Act terminology).  But I don’t think so in most situations.  Perhaps they truly believe that the day they first heard the song and performed it means they are songwriters.  But as one band member recently said to the true writer member and lead vocalist in the band:  “I stuck by you all this time.”  That musician was saying to the writer band member that since he had not quit the band during the hard times then he should now also be considered a writer and share in songwriter’s royalties and advances.  The recording advance and all the other band sources of income were not enough.  Maybe so – but the loyalty doesn’t make him a “writer”.  Any sharing in the writer’s money will be a result of the generosity of the writer – not a matter of law.

            In most situations it seems pretty clean cut.  Some examples are:  (1)  Songwriter sits down with guitar or at keyboards and writes a song.  Done.  The next band practice he plays it for the other group members and they work up the song.  (2)  Two or more band members sit down with instruments and write the song.  Same as number (1)—the band works it up.  (3)  Band Member writes the music and gives melody to another band member who writes the lyrics.  The band learns to play the song.

            In my opinion just because the band learns to play one of these songs it doesn’t make all of them writers of the songs.  Sometimes jealousy and hurt feelings are assuaged by letting the entire band share in the publishing or co-publishing income. 

            I know some of you are going to disagree with my take on this so please post your comments.  Tell me why I am wrong – or right.

 

Copyright © 2010 C. Stephen Weaver

iTunes, The Beatles Catalogue and EMI

Good morning all.  I have been traveling and am late with this week's blog.  By necessity it will be short today.  It is old news already that iTunes has acquired digital sales rights to the entire Beatles' catalogue. According to Billboard the negotiations for the catalogue have been going on since Apple decided to create iTunes.  The three main parties involved in the transaction are Apple, the Beatles' Apple Corp, LTD, and EMI which owns the distribution rights to the Beatles catalogue.  According to Billboard there is enough ambiguity in the Apple Corp/EMI Agreement regarding digital distribution that those two parties had to come to an agreement among themselves before EMI had the right to license the catalogue to iTunes.  Roger Faxon who only recently became head of EMI's recorded music division if given primary credit for finalization of the deal between Apple Corp and EMI and then between EMI and Apple's iTunes.

 

 

Copyright © 2010 C. Stephen Weaver

DIY Music Biz

        As the record business began to decline and the internet and other inexpensive technologies took flight, the option for recording artists to  apply do-it-yourself techniques began to be discussed in the industry.  At first it was the novelty of the idea and the possibility of reaching the masses through social networking sites and viral marketing.  But as time has passed it has become a necessity for more and more artists.

        When I relocated my offices to Nashville in the mid-nineties, there were multiple labels where I as an artist representative could present my unsigned clients in hopes of procuring a recording agreement for them.  These were free-standing labels with their own a&r, promotion, marketing and support staff.  Just off the top of my head, there was Capitol, Curb, RCA, Mercury, MCA, Atlantic, DreamWorks, Asylum, Giant, Columbia, Epic, Polydor, Almo Sounds, Warner Bros., Virgin, Decca, Arista, BNA, and a handful of independents.  Today many of those labels have disappeared entirely in Nashville or have been absorbed by their parent company and now consist primarily of promotions staffs, with A&R being handled by the same department for a company’s affiliated labels (e.g., RCA, BNA and Arista at Sony Music).  By my count, in the late 90's I had 18 chances of getting an artist heard by a major label or one distributed by a major.  Today there are three majors and four strong independents.

        This plus the depletion in available funds has greatly reduced the number of slots available for new artists.  And virtually eliminated the concept of artist development at the major labels.  So the option for many is to take a DIY approach.  I am a believer that opportunities for the DIY artist will continue to develop, including alternative approaches to financing the artist-owned label.  On the last point, check out the first paragraph of the recent Billboard article entitled “4 Strategies to Kickstart the Music Biz”.

        We are all learning right now.  I would love to hear your thoughts and experience in the comment section below.

 

Copyright 2010 C. Stephen Weaver