Music Publishing

The Roadmap to Royalties

Ron Sobel, Dick Weissman

• Publisher: Routledge
• Year: 2008
• ISBN:
  9781135921989
• Edition: 1
• Topic: Médias et arts de la scène
• Subtopic: Musique

Music Publishing covers the basics of how a composition is copyrighted, published, and promoted. Publishing in the music business goes far beyond the physical sheet--it includes live performance and mechanical (recording) rights, and income streams from licensing deals of various kinds. A single song can generate over thirty different royalty streams, and a writer must know how these royalties are calculated and who controls the flow of the money.

Taking a practical approach, the authors -- one a successful music publisher and attorney, the other a songwriter and music business professor -- explain in simple terms the basic concept of copyright law as it pertains to compositions. Throughout, they give practical examples from "real world" situations that illuminate both potential pitfalls and possible upsides for the working composers.

1
A brief history of music publishing and copyright law

In an historic U.S. Supreme Court decision, Justice Sandra Day O’Connor wrote that copyright protection—far from being inconsistent with the rights of free speech and freedom of information—is the very engine of free expression (Harper & Row, Publishers, Inc., et al. v. Nation Enterprises et al.; May 20, 1985). This principle is not new. Over 200 years ago, Benjamin Franklin, Thomas Jefferson, James Madison, and the other champions of American democracy, considered copyright protection and the ownership of intellectual property so essential and complementary to freedom of speech that they included a mandate for it in Article 1, Section 8 of the U.S. Constitution.

Art. 1, Section 8. The Congress shall have power to … promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

A brief history of copyright

Copyright was an inevitable extension of the creation of the printing press, and the use of moveable type. The invention of the press dates back to 1450, but the first printed music dates to 1495, and the world history book revised by Wynkyn de Worde in London. Details of the evolution of music copyright and the process of printing music are available in Russell Sanjek’s ground-breaking book, American Popular Music and its Business: The First Four Hundred Years, Volume 1, The Beginning to 1790. Among the many stones along the path, Sanjek dates the use of lute tablature to 1508. Lute tablature, the ancestor of guitar tablature, is a system of indicating notes through the use of numbers or diagrams.

In 1790 the United States Congress passed a federal copyright act, but it did not protect music. Publishers got around this omission by publishing music books, and protecting them as books, rather than as original musical compositions. The initial term of protection was fourteen years. A copyright could be renewed, but only one renewal was permitted. If a copyright was not renewed, it would fall into the public domain. Works in the public domain do not belong to a composer or publisher, but are freely available for use by anyone. Many folksongs, for example, are in the public domain, because we do not know who the original author was, and often these works had never been formally published or copyrighted.

It is important to note that at this point in time, authors or songwriters received a single payment for their work, and royalties were unknown. The only recourse that a songwriter had was to take on the additional task of publication, as well as authorship. Copyright has grown from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly every modern industry, covering such items as sound recordings, films, photographs, software, and architectural works.We will return to this thread of thought when we undertake a discussion of songwriters or composers who own their own publishing companies.

The Berne Convention

The 1866 Berne Convention first established recognition of copyrights among sovereign nations. Under the Berne Convention, copyrights for creative works do not have to be asserted or declared, as they are automatically in force at creation: an author need not “register” or “apply for” a copyright in countries adhering to the Berne Convention. As soon as a work is “fixed,” that is, written or recorded on some physical medium, its author is automatically entitled to all copyrights in the work, and to any derivative works unless and until the author explicitly disclaims them, or until the copyright expires. The United States did not sign the Berne Convention until 1989. Currently 160 nations have signed on to the Berne Convention.

Music publishers and sheet music

Up until the early part of the twentieth century, the music publishing business was primarily involved in publishing printed sheet music. The bulk of its income came from the sales of printed sheet music, and the sheet music was promoted by convincing popular performers to sing a new song. In return, the artist, as we will see later, was compensated in various ways. All sorts of inventive ploys were used to help promote songs. Publishers hired people to get up and yell out requests for new songs, and sometimes claques of people were paid small amounts of money to loudly applaud performances of a publisher’s music. And payola did not begin with the rock and roll business of the 1950s, but was practiced in nineteenth-century England, when publishers sometimes paid performers to perform songs. Songwriters received royalties primarily from the sales of sheet music. No income was generated from musical performances, early recordings did not mandate any licensing fees for the use of songs on records, and radio did not exist until the 1920s. Prior to the advent of radio, published songs were promoted through performances and endorsements by the popular performers of the day. Often the performer’s name and picture would appear on the cover of the sheet music, for which the performer was paid a fee or even given a composer credit. If the song became popular, the performer would, in essence, share in the royalties with the songwriter or songwriters.

The nature of copyright

By ensuring that creators are fairly compensated for the use of their works, strong copyright laws encourage the broadest possible participation of citizens in the creative process. Compensation for the use of copyrighted works enables those whose works the public deems of value to continue creating, while encouraging newcomers with something to say to join in. The national and global culture is enormously enriched by such a system, which rewards the most popular and talented creators and allows them to devote themselves full time to their art. Great works engender increased public discussion, and the creation of new art, to the betterment of all. By the same token, without adequate copyright protections and enforcement, the fruits of human creativity are severely diminished. Uncompensated creators are not afforded the time, the resources, or other incentives to create. After a while, the well of great new works runs dry. The notion is the same as that underlying all property rights: with ownership comes the right to control use.

Copyright law

The grants established by the Copyright Act serve to create ownership rights—intellectual property rights—in the creative works of authors, lyricists, songwriters, and composers. Much like ownership rights in real estate and other personal property, songs created from the “factory of the mind” are valuable property assets that can generate substantial wealth, and can lead to long-lasting careers. And like other more traditional property rights, interests in copyrights can be sold, licensed, assigned, and passed on to the owners’ heirs. Legally, a copyright means that a musician, author, or artist has a “limited duration monopoly” on anything she creates. The U.S. Constitution grants the government power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Article 1 Section 8, U.S. Constitution).

Copyright law covers only the form or manner in which ideas or information have been manifested, the “form of material expression.” It is not designed or intended to cover the actual ideas, concepts, facts, styles, or techniques which may be embodied in or represented by the copyright work—this is called the idea/expression or fact/expression dichotomy. Copyright is a set of exclusive rights regulating the use of a particular expression of an idea or information. At its most general, it is literally “the right to copy” an original creation. For example, if a writer has a general concept or idea for a song, a copyright of that “idea” does not prohibit other writers from creating the same general idea for a project. However, if the writer develops the idea to a point of detailed and specific lyric and melody, then that specific expression of the idea is copyrighted. Copyright may subsist in a wide range of creative, intellectual, or artistic forms or “works.” These include musical compositions, audio recordings, and radio and television broadcasts of live and other performances. Copyright is one of the laws covered by the umbrella term “intellectual property.” In most cases, these rights are of limited duration. The symbol for copyright is ©, and in some jurisdictions may alternatively be written as (c).

Writer share and publisher share

It is fundamental to understand that when a writer or composer creates a work, whether alone or with others, the writer(s) owns that entire song and all of the rights—both the so-called “writer’s half” and the so-cal...