by Robert Flis / November 5, 2021
The Sincop8ed Noize Foundation is proud to present its latest Rockalypse Workshop. Our guest speaker this month is Katie Seline, Account & Project Manager at Music Rights Clearance in Montreal, who joins us to help us develop a basic understanding of Copyright, Music Publishing and the impact they have on songwriters and musicians’ careers. This article will summarize her presentation which was packed with useful information.
What is Copyright?
In order to understand music publishing, we must first understand copyright. Copyright applies to all aspects of creative works. It is what allows creators to have exclusive rights to control the use of their creations, whether they be works of art like poetry, music or paintings, or scientific developments or discoveries. The purpose of copyright is to encourage and promote arts and sciences by protecting the rights of the creators as well as their creations. However, it only lasts for a limited time. In the United States Copyright law protects a work for the life of its author, plus 70 years. In Canada, the durations is currently the life of the author, plus 50 years (although that is set to soon increase to LOA + 70 years). Once copyright expires, an author’s work falls into the “public domain” and becomes free for anyone to use. However, if a creation has multiple authors or creators, the applicable copyright law protects that work until the death of the last creator.
One important distinction to understand is that copyright protects “the expression of an idea, not the idea in itself.” It is automatically acquired when an idea is recorded or “fixed.” For example, if you come up with an idea for a song, it is not protected by copyright law until you write down the notes or lyrics, record it, or perform it live. This only applies to original works, so if you were to write down an existing song, not only would it not be protected, but it would in fact be infringing on the copyright of that song.
Copyright of a song is generally broken down into two categories: composition (intellectual content, i.e. lyrics, melody, structure) and recording (performed by musicians and sometimes owned by record labels). There is no recording without a song, so although recordings enjoy their own form of copyright, they never exist without the composition. There can also be many recordings (or masters) of a given song, each with their own copyright, whereas there can only be one composition.
A song can have one or multiple authors or songwriters, which can include composers, lyricists, producers, arrangers, etc. Generally, authors are the first owners of their work. If two songwriters got together and wrote a song together, they would be considered joint authors of that song. Even if one of those songwriters only contributed a bass riff to the song, as long as it is original and significant to the song, they would still be credited as a copyright holder. Whereas a solo songwriter would retain 100% of the ownership of the copyright, co-authors get a split percentage which should be discussed and agreed upon early in the process to avoid potential disputes down the line. There is no limit to the number of co-writers attached to a song, but the more people involved, the more ways the song needs to be split. Some songwriters may retain higher percentages than others depending on the size of their contribution to the song. However, the total of each songwriter’s split can never equal more than 100%.
What Are Rights?
Copyright holders have two kinds of rights. Economic rights are the right to make money from one’s own work. Moral rights are the right to protecting your own integrity and that of your art. Copyright owners can reproduce (entirely or in part), communicate to the public, perform, record or publish a song, as well as authorize anyone else to do so. Copyrights can also be assigned or sold (fully or partially) to publishers, distributors or record labels with written agreements. Copyright owners also have the ability to “license” the rights to their music.
The right to reproduce is the right to create a copy of a work. In music, this can include copying a song onto CD or vinyl, creating or downloading MP3s, copying lyrics or sheet music on paper or online, etc. These are known as “mechanical” or “reproduction” rights.
The right to communicate a song to the public – NOT to be confused with live performance – includes making your songs available on streaming services and YouTube, radio play and having them featured in movies or on TV. This is strictly about the availability of your songs to the public.
The right to perform includes (as one would expect) live performances, but also having your songs played for the public, such as in bars or restaurants, grocery stores, TV broadcasts, streaming services, etc. In this way, the right to perform differs from the right to communicate in that it is literally the right to perform. There’s an important distinction to be made between the right to perform and the rights of performers. If you have written a song, you have the right to perform that song in public because you are the copyright holder. However, if you are performing a song that someone else has written (a cover song), then you do not enjoy the rights to that composition, but you do have your own set of rights known as neighbouring rights. This applies to all kinds of performers including singers, dancers, actors, musicians, etc.
The right to record allows the creator or “maker” to “fix” the sound recording for the first time (known as the master recording). They can reproduce the material both physically and digitally (CDs, vinyl, cassettes, downloads, etc.) and sell it to the public, as well as communicate their work to the public via streaming services, radio, etc. The “maker” of a recording is typically an artist or record label.
The right to publish is the right to promote and monetize a composition. Artists may decide to publish their own music or assign their work to a publisher. Assignment of a copyright transfers the ownership of that copyright to a buyer and can be limited to a particular territory, medium or section of the market. For musical compositions, performing rights are often assigned to a performing rights society like SOCAN, and composition copyrights to a publisher. When dealing with record labels, master recording rights are often required as part of the deal, with royalties being paid to the artist in exchange. In a “work for hire” scenario, artists are paid up front for their compositions and forfeit all the rights to their work. In this case, they do not own the copyright. Licensing differs from assignment in that it is not transferring rights but more like lending them for a limited time. A good example that Katie provides is where SOCAN is assigned performing rights to a song and then licenses them to businesses on behalf of the songwriter.
What Is Music Publishing?
This workshop is about music publishing, so why have we spent so much time going over the basics of copyright? Well, simply put, publishing is the business of acquiring, protecting and promoting song copyrights and then collecting the royalties that they generate. Music publishers go to people like Katie and push their clients’ songs so that they can be licensed out for movies, TV and other media, and then collect the royalties on their clients’ behalf. Something many artists don’t realize is that if they don’t hire a publisher and assign the rights of their music to them, the artist is their own publisher.
One of the main benefits of working with a publisher is that they ensure your songs are registered and tracked globally. They also collect royalties and make sure the artists are paid for the use of their work. However, publishers typically do not get involved in the distribution of your music or provide creative services to help promote your work. Normally, the copyright for the composition of a song is split 50/50 between the artist and the publisher.
There are advantages and disadvantages to working with a publisher vs taking taking the do-it-yourself route with publishing. Publishers can provide sync opportunities that might otherwise be inaccessible to an artist. They can also offer cash advances to help cover costs. However, artists are often locked into fixed-term contracts of at least 3 years and give up 25-50% of the copyright of their songs for life. Generally, publishers also require transfer of ownership of all your material written up until the point of your agreement with them. Taking the DIY approach on the other hand allows you to keep all the rights and royalties to your music, but it can be a demanding, costly, and complicated process that many artists are not prepared to take on and which can distract from creating new material. There is a third option, which is working with a publishing administrator. Services like TuneCore and Songtrust offer publishing services and require no copyright percentages or fixed contracts, but they also offer no advances or creative services.
What Are Royalties?
Simply put, royalties are the money paid out for the use of a song. It’s important for artists to understand that composition royalties are paid out by collection societies like SOCAN and/or your publisher, whereas master recording royalties are collected and paid out by distributors and/or record labels.
There are three main kinds of song royalties. Performance royalties are collected every time a song is heard by the public. This includes live venues, restaurants, bars, stores, streaming services, etc. Mechanical royalties are collected every time a song is copied. This includes record sales, downloads, interactive streaming services, etc. Both of these types of royalties are collected and paid out to the artists by collection societies like SOCAN. Finally, we have micro-sync royalties, which are a little less known, but are paid out whenever a song is used in a user-generated video online. These are typically paid out by a distributor like DistroKid if they have a deal with the platform on which the song is being used (YouTube, TikTok, etc.)
There are numerous other ways artists can generate royalties from their music including traditional sync licensing fees (normally paid out in a lump sum for a song to be used in a TV show, commercial, etc.), sync performance royalties (separate from licensing fees in that they’re paid out to a collection society by the platform on which the song is being played), theatrical royalties, print royalties (lyrics, sheet music), derivative works (new versions, parodies), samples of songs used by other artists, covers (mechanical license and public performance), and podcasts.
Each of the above uses require a license from the songwriter. As someone who works in licensing, Katie’s job is basically to get permission for people to use music and then make sure the appropriate people get paid. The job of a license is to grant a set of permissions for the use of songs under certain conditions, while ensuring that the songwriters earn money and are protected from abuse of their work. They do not change the owner of the copyright.
In Canada, SOCAN is the performing rights organization in charge of paying out performance royalties to artists. Since their purchase of Quebec company SODRAC, they also collect mechanical royalties. CMRRA is another collection society for mechanical royalties in Canada. As for performance rights, Re:Sound is a neighbouring rights company in Canada that works closely with Sound Exchange in the US. It’s of critical importance for artists to research these organizations and sign up to the ones that could allow them to collect money for their music.
Royalties are constantly going unclaimed due to songs not being registered with the proper organizations or not affiliated with a collection society, not having a publisher or simply having incorrect data attached to them. There is a retroactive wait period of 2-3 years in which an agency will hold on to the royalties of an unregistered song for an artist, but after that period of time, if they are still not claimed, they will be split among the organization’s top earners. This is why rights management is such an important part of publishing.
When registering your songs, don’t forget to list all performers, writers and/or publishers, alternate titles, confirm all splits, keep your contact info up to date and report live performances (something many do not do).
We’d like to thank Katie Seline for her extremely detailed and informative presentation and invite everyone to watch the full workshop for even more details on publishing and copyright.
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