What It means to You
There are two requirements:
- your work has to be original
- it must exist in a “tangible” form
You can't simply have an idea, however original, that lives only in your head. It has to be "fixed" in some concrete media or other. If you write out your lyrics on paper, or publish them on Songstuff pages, they are in tangible form. If you record your song, or transcribe a lead-sheet, or sketch out words and chords, then it is in tangible form.
The moment a creative work is in such tangible form, copyright under the Berne Convention is automatic: no registration is required, nor is the inclusion of a copyright notice.
The Berne Convention eliminates the requirement for a formal copyright notice alright, but it's still a good idea to have one. That way, should anyone ever stoop to ripping you off, they can't claim "innocent infringement" as a defence.
Similarly, formal registration may no longer be essential, but it's certainly recommended you join the relevant association for the neighbourhood and log your works with them.
These performance rights organizations are essential for our protection and survival.
2. What You Get With Copyright
- You or your estate and inheritors own the song for 70 years after your death.
- Ownership means you have "exclusive rights":
- to make and sell copies of the song
- to import or export them
- to rent or lend them
- to make adaptations
- to perform it in public
- to have it broadcast
- to sell or assign these rights to others
- You have "moral rights":
- to be recognised and credited as author/writer of the song
- to claim protection for your artistic integrity
Within these largely agreed principles, the individual states that have signed up to them will all have their own bodies of law governing infringements or breaches of your copyright, and how you get compensated.
There will also be different national conventions and standards for writing industry contracts.
3. Performing Right Organisations
Any use of your song - the rights to sell, rent, broadcast or perform it - will generate a royalty. But as an individual songwriter you certainly won't have time or resources to track down all these users and get paid your due. That's why performing rights organisations are there to do it for you.
They collect money from radio stations, TV stations, programming companies, internet companies and any other broadcasting user of music. They collect from places that have performances of live music. They collect from people who make recordings. They collect from restaurants and bars and other public places where these recordings are played.
They then re-distribute these royalties on behalf of their author and publisher memberships.
If your songs are being performed in public or threaten to get recorded or broadcast, you should join the organisation where you live.
4. Trading Your Rights
Controlling and trading and exploiting your rights as a copyright owner is how you earn a living as a songwriter or composer.
Of the two sets of rights - economic and moral - economic rights can be sold or licenced, but not the moral rights.
When writers sign a publishing deal, they assign the economic rights to their songs over to the publishing company in exchange for royalties according to the terms of a contract.
Moral rights cannot change hands, though.
Like biological parenthood, authorship is a simple fact that can never be changed. No problem with that for anyone in the game. But publishers want to be free to put your song forward for pretty much any use where they can turn a dollar. And they won't wish to be unnecessarily restrained from exploiting any money-making opportunity. So the other bit of moral rights - the right to be able to protect your reputation and the integrity of your work - is what remains a very contentious area.
Most will expect you to waive your moral rights.
5. Why Would You Transfer Rights To A Publisher?
Under Berne, you automatically own exclusive rights anyway. If any use of your song - sale, rental, broadcast, performance - generates a royalty, all you have to do is collect the money. Performing rights organisations can do that for you. So why sign with a publisher?
Because they can exploit it. Market it to artists and labels, flog synchronisation rights to TV and movies and whatever. Because they promise to make you money. That's what they are supposed to do: turn the economic rights into effective money-making rights. They will then administer the rights and collect mechanical royalties and some of the performance royalties on your behalf.
They keep some and pass the rest on to you.
How much they plan to pass on to you is part of the agreement you make with them.
Whether they can keep the rights for ever, or have an option to renew the deal after a fixed period, or have to give the rights back to you, this is part of the agreement also.
The success of the arrangement is based on the simple calculation that getting 50% of something ultimately makes you better off than having 100% of nothing.
That's if they're doing their job.
If they're not doing their job and not making you money, then the deal is not in your interests.
6. Why Use A Lawyer?
The more information you have the better you can survive.
Read the contract and figure out what you think it means. Lawyers can then answer questions and interpret the proposals based on specialist knowledge. They understand the jurisdictional niceties and common practices and their implications and are familiar with traditional dodgy deals.
They should be able to advise you in negotiating better terms.
There is absolutely no substitute for knowing what's going on yourself.
Don't be frightened - ask questions.
A lawyer will respect your wish to understand, and help you learn.
7. Useful Links
Performing Rights Organisations:
- SACEM is the one for France.
- In the U.K., it's PRS and MCPS. Also PPL. They each do different things.
- For OZ, it's APRA/AMCOS
- In CANADA, the old PROCAN and CAPAC organisations have got together as SOCAN.
- In the U.S., there are three: BMI, ASCAP, and SESAC. SESAC is Nashville based. Each of them seems to do the same thing for its membership. I don't understand why there are three.
- Barry Massarsky's article explains how they operate.
- Shad O'Shea has legitimate questions and criticisms that will have parallels in all the other organisations. Nonetheless, you need to be a member of your own performing rights organisation to make sure you have a chance of collecting your proper legal share of royalties. It's a central fundamental necessity of being a songwriter and taking care of business.
- To protect and collect in the expanding digital universe, join SoundExchange.
Coming up in Part III - More on Moral Rights
About Colin Lazzerini
Except for the occasional mistaken spotty teen-aged outing – it was actually not until he was approaching my thirtieth birthday in foreign parts that he embarked upon performance with earnest commitment and real intent. Even then, a couple of busy decades slipped by between his first stumbling attempts at making original songs and his happy arrival at a truly satisfying level of craft-confidence and the ability to deliver professional goods.